1506031 (Refugee)

[2017] AATA 589

1506031 (Refugee) [2017] AATA 589 (24 March 2017)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506031

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Stuart Webb

DATE:24 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 March 2017 at 8:59am

CATCHWORDS
Refugee – Protection visa – Sri Lanka – Religion – Buddhist convert to Christianity – Imputed political opinion – Association with an LTTE leader – Personal family grievance – Physical appearance – Physical harm – Ostracised by family – Buddhist nationalists – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R(1)(b), 351, 417, 424, 499
Migration Regulations 1994 Schedule 2

CASES
Altintas v MIEA (unreported, Federal Court of Australia, Nicholson J, 23 January 1997)
Chan v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
MIAC v SZQRB [2013] FCAFC 33
MIEA v Wu Shan Liang (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Sri Lanka, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 7 March 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, who did not attend in person. A witness, [Pastor A] of the [Church 1], attended the hearing and provided evidence about the applicant’s conversion to Christianity and activities with the church and local community in [Australia].

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

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

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

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

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant made the following claims in his application. He left Sri Lanka to study, his [Relative A] financing this. He had bad habits in Australia such as gambling, drinking and smoking, so he had to borrow too much from him. His [Relative A] is really angry at the applicant and tried to hit him. He believes his [Relative A] will kill him because he is so upset. His [Relative A] is powerful and connected with politicians. His father will not let him go home. He does not have any work experience and will find it hard to get work. Many hotels are near his family home and his friends and family will reject him. He has difficulty in the community because of his facial appearance, caused by [specified features]. He may kill himself because of his face condition and being ostracised. It will be too hard to go back after so much time in Australia. He has a bad mental health condition and won’t get good treatment in Sri Lanka as the doctors would not understand him.

20. The applicant provided a psychological report from April 2013. He saw the psychologist to assist reducing his [two conditions]. He has concerns with reintegrating into Sri Lankan society. However the psychologist believes that he would be able to manage his [condition] sufficiently well to successfully re-integrate into Sri Lankan culture. The psychologist wished him well on his return to Sri Lanka.[1]  He also provided a business card for [a counselling service] where the applicant claims he has attended for mental health treatment on [number range] occasions.

    [1] DIBP Folio 29

21. He provided some [social media] pictures of the applicant purportedly associating socially with a friend, '[Mr A]', who is a [political associate] for former LTTE leader, ‘[Mr B]' and with [Mr B] himself. Further information was provided by the applicant to the Department. He is friends with a [political associate] of former LTTE leader, ‘[Mr B]' and stayed at [Mr B’s] house in 2012. His [Relative A] and father do not approve of the friendship.

22. The applicant’s background and migration history is as follows. He has lived in [his home village], [name] district all his life in Sri Lanka. In his application he identified himself as being Sinhalese and a Buddhist. He claimed in his application to have completed his secondary schooling in Sri Lanka. He also claims to have studied [specified courses] during his time in Australia.

23. The applicant first entered Australia on a [student] visa [in] August 2006. [In] May 2009 he applied for a [different temporary] visa, however later withdrew that application [in] February 2010. [In] March 2010 he applied for a further [student] visa which was granted [in] May 2010. He departed Australia for Sri Lanka on that visa for one month beginning [on a date in] November 2010 to attend his [sibling’s] wedding. [In] August 2011 he applied for a [different temporary] visa, and also while that visa was being processed a bridging visa B, to allow him to travel to Sri Lanka for the reason of visiting his parents, according to departmental records. He departed for Sri Lanka [in] February 2012 and returned [in] May 2012. His [temporary] visa was refused [in] October 2012 as he was unable to meet [a certain] criteria for grant. He sought review of this decision at the Migration Review Tribunal (MRT) but was unsuccessful, with the decision affirmed on 12 April 2013.

24. [In] June 2013 he wrote to the Minister requesting he exercise his discretionary powers under Section 351 of the Act and intervene in his case. He asserted the Minister should intervene as he wanted to gain work experience in Australia before returning to Sri Lanka and had been prevented from doing so on account of a number of personal issues. [In] January 2014 the Minister declined to intervene. The applicant's passport expired on the same day with the applicant engaging with the [department] in order to facilitate his departure. [In] February 2015 he lodged his application for a protection visa.

25. The delegate considered the applicant’s claims arising out of his family relationships, including the debts and potential to continue the family business; his friendship with ‘[Mr A]’ and ‘[Mr B]’; his mental health issues; and his reintegration concerns. The delegate noted the delay in lodging the protection visa application. The delegate noted that the applicant had returned to Sri Lanka on two occasions. The delegate determined that the applicant was not owed protection obligations.   

26. The applicant provided new information to the Tribunal. He has become a follower of Jesus. He started attending Bible studies in 2016 at [Church 1]. he will be harmed emotionally and physically if returned to Sri Lanka because his family are Buddhists. There is a real risk if he tells anyone, family friends, other Buddhists that he is a follower of Jesus. There are attacks everywhere against Christians since the change of government in 2015. Sri Lanka is a small place. He will be lost emotionally if he leaves his friends in [Australia].

27. The applicant provided a letter of support from [a] Pastor of [Church 1], who stated that he had known the applicant for the past three years through his involvement in [Church 1]. The applicant provided a blog post claiming that attacks against Christians has continued following the change of election, including links to local officials. Buddhist nationalists were blamed for the violence.

28. A post hearing submission was provided on behalf of the applicant, addressing issues that arose at the hearing. This included submissions and country information. It included some examples of incidents of violence against Christians. There was some information that converts from Buddhism experience opposition and hostility from family and relatives. It was submitted that the applicant comes from a strict Buddhist family, who may present a risk to him. Some Buddhist monks can cause difficulties for converts. The thought of returning to Sri Lanka causes stress to the applicant. The submission noted that the applicant had made a significant contribution to the community, including for those with a Sri Lankan background and more broadly.   

    Findings and reasons

    Country of nationality

29. The applicant claims to be a citizen of Sri Lanka and provided copies of his identity card and passport to the Department with his application. The Tribunal finds that the applicant is a citizen of Sri Lanka, that Sri Lanka is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Sri Lanka is his receiving country for the purposes of complementary protection.

    Third country protection

30. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

31. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

32. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, 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.

33. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

34. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

35. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

36. The Tribunal noted that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

37. The Tribunal has also considered the current Australian law as to a real chance being one that is not based on mere speculation or that it is not remote, but rather, has a real substantial basis. 

38. A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[2] In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[3] A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:

    … clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[4]

    [2] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.

    [3] Chan v MIEA (1989) 169 CLR 379 at 389.

    [4] (1989) 169 CLR 379 at 389.

1. In the same case Dawson J stated:

   ... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[5]

   and Toohey J stated:

   A “real chance” ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.[6] 

   Similarly, according to McHugh J:

   [A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.[7]           

   [5]Chan v MIEA (1989) 169 CLR 379 at 397-398.

   [6]Chan v MIEA (1989) 169 CLR 379 at 407.

   [7]Chan v MIEA (1989) 169 CLR 379 per McHugh J at 429. However, this does not mean that the Tribunal must consider whether a 10 per cent chance of persecution has been established. In Altintas v MIEA (unreported, Federal Court of Australia, Nicholson J, 23 January 1997) the Court held at 10: ‘The ratio decidendi of Chan did not require the Tribunal to consider whether a 10 per cent chance of persecution was established. Rather the Tribunal was required to consider whether, on all the evidence before it, a “real chance” was established’.

2. Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[8]

   [8]MIEA v Guo (1997) 191 CLR 559 at 572.

3. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

4. 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.[9]

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

5. The Tribunal also notes that Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

6. The Tribunal has taken this law into account in its assessment as to whether the applicant has a real chance of serious harm or a real risk of significant harm on return to Sri Lanka.

   The claims of the applicant

7. The claims of the applicant fall into two chronological categories, the claims that he made to the Department, and a new claim that was raised at the Tribunal level arising from his conversion to Christianity. The Tribunal discussed all of the claims at the hearing, noting that the applicant has concentrated his claims now on his fears returning as a converted Christian. The applicant stated that his Christian claims need to be taken into context with respect to his previous claimed difficulties with his family.

   Initial Claims

   Family issues arising from debts and wasted money

8. The applicant’s initial claims for protection arose primarily from his concerns of mistreatment from family members arising from his activities in Australia. The applicant stated that his [Relative A] in particular was angry at him for wasting $[amount] on alcohol, drugs and gambling.

9. The Tribunal discussed this claim with the applicant. He stated that he had wasted a significant amount of money, given to him by his [Relative A], in this way. He had been clean for two years, and he had started talking to his father recently, but had no contact with his [Relative A]. He spoke regularly with his mother.

10. The Tribunal asked if the applicant still owed money to his [Relative A]. The applicant stated that his mother had repaid his [Relative A] the money owed. His [Relative A] is not owed any money any more. The Tribunal questioned whether the applicant in fact had a fear of harm from his [Relative A], given the changed circumstances that now exist. The applicant said he had no contact with his [Relative A], who lived nearby.

11. The Tribunal put adverse information to the applicant pursuant to the provision of s424AA of the Migration Act, including noting its relevance and consequences and that the applicant could seek additional time to comment or respond to the information. The Tribunal noted that the applicant had had an ongoing discussion with Departmental [officers] from June 2013 to February 2014. The following information was recorded from notes taken from these conversations.

    The situation is very bad in Sri Lanka between he and his family as his father is very angry with him because he wasted all the money his father had sent to him. Client stated his [Relative A] also does not wish to speak to him anymore. Client stated only his mother speaks to him and send him money to survive in Australia

    Client was asked if his family knew about the hard time he has been having in Australia. Client stated they are aware of this and want him to come home to Sri Lanka but client stated he does not want to go home to Sri Lanka because they would not let him forget that he has wasted all this money gambling and drinking. Also the business he was meant to run when he returned from Australia has now been given to [another family member] and client has no job to go back to.

    Client stated she has recently sent him some more money and he is thinking of using some in order to attend a Buddhist retreat for a week to assist with his alcohol problems. Client stated he wants to start improving his life so if he does have to return to Sri Lanka he will not have these issues.

    Client stated he could not return to Sri Lanka because he had spent his parents money ($[amount]) gambling it away. He said he was not in communication with his family, only his mother occasionally

    I questioned the client as to what will he do if his application for Protection is refused? The client stated "if my visa application is refused, then I will return to Sri Lanka"

    The client stated he has spoken to his mother and she has taken out a loan and repaid his [Relative A] all the money he had lent him for his studies in Australia. The client stated "I have also stopped gambling and drinking and doing things which will better my life, I am hoping to speak to my [Relative A] soon".

    Client has applied to renew his passport last week and is awaiting this to be processed. Client has agreed to depart Australia after receiving his new passport.

12. The Tribunal noted that this information demonstrated that there had been some difficulties with his family arising out of his activities, but that it also demonstrated his family wanted him to come home, that things had improved with the family more generally such that they were unlikely to seek to harm him, and that the applicant had indicated a willingness to return home to Sri Lanka in such circumstances.

13. The applicant stated he felt he had no option but to agree, he did not want to become unlawful. He said if there was no other option he would go. The applicant also stated he still feared his [Relative A] was angry at him having spent the money, and that he was worried for himself. The Tribunal notes that this is contrary to his statement to the Department, that his family had come to terms with the applicant’s actions and were wanting him to come home, something the applicant indicated he was willing to do. The Tribunal notes that anger is also quite different to actually seeking to harm someone, the Tribunal accepts that there may have been arguments about money spent, but that is as far as it went, given his evidence. The Tribunal does not accept that the applicant was harmed in these arguments, the Tribunal noting that the applicant has only stated that his [Relative A] ‘tried to hit him’, though did not actually do so. The Tribunal considers that the discussion of the applicant with the Department demonstrates that his family had come to terms with the applicant for his actions in the past, though certain family members, like his [Relative A], were not likely to have an ongoing relationship with the applicant.

14. The Tribunal has considered the information about this aspect of the applicant’s claims. The Tribunal does not accept that the applicant has a real chance of serious harm or a real risk of significant harm from family members, including his [Relative A], because of his actions in Australia wasting money on drugs, alcohol and gambling. The Tribunal notes that the evidence of the applicant himself, as detailed by [the department], demonstrate that the applicant himself believed that this element of the dispute had been by and large resolved, the money repaid to his [Relative A] by his mother, and that there had been a level of rapprochement with his family. He has more recently spoken to his father on the phone, though it may take more time to redevelop that relationship. He does not have conversations with his [Relative A], but the financial issue is no longer a cause of tension between him and his [Relative A]. The Tribunal accepts that his family may well not let him forget that he wasted a considerable amount of money in his activities in Australia. But the Tribunal does not consider that not letting him forget about his past activities in this regard constitutes serious or significant harm as defined in s.91R(2) and s.36(2A) of the Act.

15. The Tribunal does not accept that family members of the applicant will seek to hit him, kill him or otherwise harm him because of the money wasted. As detailed, his [Relative A], whom the applicant was most concerned about, has been paid the outstanding money by his mother. The Tribunal does not accept that his [Relative A] will hit him or try to kill him on his return for this reason. The Tribunal considers it highly speculative, and not one that could be considered a real chance or a real risk of occurring that his [Relative A] or any other relative would seek to harm the applicant because of the wasted money or his activities in Australia wasting the money. The Tribunal notes that the applicant had indicated that he was being accepted back into the family, and detailed his willingness to return to Sri Lanka, as this issue with his family had subsided. The Tribunal notes, as considered below, that a new issue has arisen regarding the applicant’s conversion to Christianity, which may lead to the applicant having little to do with his family in the future. As detailed below, the Tribunal does not accept that his conversion to or practice of Christianity will lead the applicant’s family to harm him on return to Sri Lanka. The Tribunal further does not consider that the applicant’s conversion to or practice of Christianity will cause the concerns about the applicant’s wasting money on drugs, alcohol and gambling to be renewed.

16. The Tribunal considers that the applicant’s fears on return to Sri Lanka for the reason of his wasting money on drugs, alcohol and gambling are speculative and not based on any objective basis. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from any debts to family members or concerns about his wasting money in Australia on drugs, alcohol or gambling.

    Appearance

17. The applicant also raised the issue of his appearance. His face is visibly affected by [specified features], and the applicant has expressed a concern regarding how he would be treated because of his appearance. The applicant noted that he had this problem in Sri Lanka, and occasionally people would comment upon it, making jokes about it. He saw a plastic surgeon about it on his return to Sri Lanka who told him there was nothing that could be done. The applicant stated he did not receive such comments in the community in Australia. The Tribunal confirmed he had worked in Sri Lanka prior to coming to Australia with such an appearance.

18. The Tribunal is sympathetic to the applicant’s desire not to be spoken to rudely or in a joking manner because of his appearance. However the Tribunal does not consider that being spoken to in this manner claimed constitutes serious or significant harm as defined in s.91R(2) and s.36(2A) of the Act. The Tribunal has considered whether the applicant’s appearance may cause him to be discriminated against on his return to Sri Lanka. The Tribunal does not accept that the applicant will be discriminated against or ostracised by the community because of his appearance on his return to Sri Lanka. The Tribunal notes that the applicant has come to Australia and completed a number of relevant qualifications in Australia [that] provides him with a suite of skills that he would be able to use on his return to Sri Lanka. The Tribunal considers that the applicant’s appearance will not stop him from gaining employment in these fields given his qualifications, qualifications that were the reason for the applicant coming to Australia in the first place. The applicant, even with his concerns about his appearance, came to Australia to gain these qualifications in the first instance. The Tribunal considers that the applicant will be able to live freely and work as he chooses in Sri Lanka despite his concerns about his appearance, and will not be ostracised or discriminated against for this reason. The Tribunal does not accept that the applicant will harm himself because of his appearance. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.

19. The Tribunal has considered the applicant’s health concerns more broadly. The Tribunal notes that the applicant’s own psychologist had provided a letter, as given to the Department, that demonstrated he would be able to manage his [condition] on return to Sri Lanka and successfully integrate back into society[10]. The Tribunal considers that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.

    Friendship with [Mr A] / Association with [Mr B]

    [10] DIBP Folio 29

20. The applicant stated that he had a friend [Mr A], whose mother and father lived close to his home. The applicant stated that [Mr A’s] mother did work for [name], who is better known as [Mr B]. The applicant stated that he met [Mr B] for the first time in 2010, and again in 2012 during his return to Sri Lanka, and stayed at [Mr A’s] house where [Mr B] resided for a short period as well. The applicant provided [social media] photos of a party for [Mr A] where a man with the likeness of [Mr B] is shown.[11] The Tribunal accepts that the applicant has met the man known as [Mr B] and is friends with [Mr A], who, as the applicant has claimed, has provided some assistance to [Mr B]. The applicant stayed with [Mr A] for a short period in 2012 at [Mr A’s] mother’s home.

    [11] DIBP Folio 41-45

21. The applicant stated that his family did not support him having a friendship with [Mr A] because of the association with [Mr B]. [Mr B] was not liked because of his activities during the [war].

22. The Tribunal asked the applicant if he had any ongoing contact with [Mr A] since he left in 2012. The applicant said he had not. The Tribunal asked if [Mr A] had had any difficulties arising from his friendship with [Mr B]. The applicant stated he was not aware of any issues arising for [Mr A] because of the friendship and work done. The Tribunal questioned the claim that the applicant would be harmed because of this connection with [Mr B], given that the person he had the connection through, to the applicant’s knowledge, had not had difficulties in the community because of this. The Tribunal noted that the applicant was further removed from [Mr B] than [Mr A], and questioned his claim that he would have difficulties arising from this association, with [Mr B] or with [Mr A]. As the Tribunal noted at the hearing, if [Mr A] had not been harmed because of this association, the prospect of the applicant being harmed was even more remote. The Tribunal asked if he had any concerns about being harmed by [Mr B]. The applicant said he did not.

23. The Tribunal does not accept that the applicant’s association to [Mr B], through his friend [Mr A], or his friendship with [Mr A] himself, is a reason that would see him harmed on return to Sri Lanka. The Tribunal considers that it is highly speculative at best, and notes that his friend [Mr A], who the applicant states has done work for [Mr B], has not been harmed in the community. The Tribunal does not accept that his friendship with [Mr A], who did some work for [Mr B], would lead to the applicant being harmed by his family or anyone else. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm because of his friendship with [Mr A] or association with [Mr B], on return to Sri Lanka. 

    Christians / Christian Converts in Sri Lanka

24. As detailed, the claims considered above were the claims as made to the Department and in his written application. The applicant made a new claim to the Tribunal, that he had found Christianity and had in fact converted, being baptised [in] February 2017. The applicant has made two claims arising from his conversion to Christianity. The first revolves around his fear of harm from his family because of his converting to Christianity, including in the context of the previous difficulties he had had with his family. The second aspect of this claim is his fear of harm arising from the treatment of Christians and Christian converts from Buddhism in the Sri Lankan community

25. The Tribunal discussed the applicant’s conversion. He became involved with the [Church 1] about 3 years ago, but more regularly in the last 2 years. The applicant stated that he introduced by a friend and found he could assist the services provided by the church [and] other community outreach programs. This assisted him in getting back on track. He started attending bible study group. In February 2017 he was baptised as a Christian. The Tribunal accepts that the applicant commenced with the church as it provided him with some assistance, and that he has converted to Christianity because of a genuine interest in that religion.

26. The applicant claimed he would be harmed emotionally and physically if he returned to Sri Lanka because his family, relatives and friends were from a strong Buddhist background, and would not support his conversion. His family lived near a temple, where he had previously been actively involved. He had helped gather donations when the tsunami hit in 2004, and was seen as a good person in the community for his actions on behalf of the Buddhist community. The applicant stated that his given previous difficulties with his family, this would provide a further reason for his family to be angry and seek to harm him. They were not aware of his conversion.

27. The Tribunal discussed his family’s involvement with Buddhism. He stated that they lived near the temple and were frequent attendees in Buddhist religious practices in the area, a location where there were ancient temples. The applicant has claimed his family are ‘strong’ Buddhists and will not be supportive of his being a Christian. The applicant stated that there was the potential that his family, in particular his [Relative A], would seek to harm him. They are not aware of his conversion, the applicant not telling them about it. The Tribunal notes that aside from some brief conversations with his father on the phone, the applicant’s only contact with his family is through his mother and he has no ongoing relationship with his [Relative A]. The applicant was not aware of a church in his local area and stated that he would have to travel to go to church, a practice he would pursue in Sri Lanka. The Tribunal noted that there were churches across Sri Lanka, including in places like Colombo, where the applicant had studied for a number of years. The applicant stated that it was another country for him. The Tribunal confirmed that he wanted to practice Christianity in Sri Lanka, but was not interested in proselytising Christianity.

1. The Tribunal notes the information as provided by the applicant, detailed below regarding the treatment of converts by family members. The WWL article[12] as provided by the applicant talks about there being opposition from families, in particular in areas where Buddhism was strong. The Tribunal notes that the report discusses the concerns about spreading the word about their new religion, something the applicant has not said he would do.

   [12] AAT Folio 72

2. The Tribunal has considered the applicant’s claim that he would be harmed by his family because he was a Christian convert and a Christian. The Tribunal notes the country information as provided below about family opposition to conversion, though notes there are limited reports of this. The Tribunal has also considered this claim in the context that he had previously claimed to have had some difficulties with his family for other reasons, and while those previous reasons may have dissipated, this new issue would bring back the old anger towards him.

3. The Tribunal does not accept that the applicant will be harmed by his family because of his conversion and now practice as a Christian on his return to Sri Lanka. The Tribunal considers that the applicant has no relationship with his [Relative A], whom he has had the most difficulty with, and the Tribunal does not accept that his [Relative A] would want an ongoing relationship with the applicant in the new circumstances now he is a converted Christian. The Tribunal does not consider that this conversion would create further hostility between the applicant and his [Relative A], even with his [Relative A] being a Buddhist, such that the applicant will be harmed, just that his [Relative A] will continue to have nothing to do with the applicant in the future. The Tribunal considers that the claim that his [Relative A] would harm him because of the conversion and practice of religion is mere speculation only, and not one based on any real chance or real risk of occurring. The Tribunal considers that the applicant’s conversion and practice of religion as a Christian will lead solely to the confirmation of his [Relative A] wanting to have nothing at all to do with the applicant. The Tribunal does not accept that it will lead to the applicant being harmed by his [Relative A]. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm for this reason.

4. The applicant has said that his family are faithful Buddhists who attend the temple regularly. The Tribunal has no information to demonstrate otherwise, so is prepared to accept this claim of the applicant. However the Tribunal does not accept the proposition that his family as faithful Buddhists would seek to harm a family member because they have left their faith and converted to another, in this case, Christianity. The Tribunal considers the examples of families harming converts, as detailed below, are isolated, and the country information discusses primarily opposition from the family members and subsequent ostracism from the family. They do not like converts talking about their new faith, such discussions are not engaged in. The Tribunal considers that this outcome is possible for the applicant, noting, as detailed above, family opposition has already occurred of the applicant in the context of his time in Australia spending money on drugs, alcohol and gambling. The Tribunal considers that the circumstances of the family difficulties with the applicant will lead him to remain ostracised from his [Relative A] and father, and that his relationship with his family will remain limited to conversations with his mother. However the Tribunal considers that this is the extent of the difficulties he will have with his family, and that his claim that they might seek to harm him is speculation only, and not based on a real chance or real risk of occurring. The Tribunal considers that the majority of the applicant’s family, except for his mother, will choose not to have an ongoing relationship with the applicant. The Tribunal considers that the majority of his family, as Buddhists, will not have ongoing relations with the applicant, because of his conversion and his new religious belief, and thus the present lack of a relationship will continue. The Tribunal does not accept that the harm would go further than this, given the evidence of the applicant about the previous verbal arguments with family over the wasted money issue, where the applicant was not harmed by any member of his family. The Tribunal does not consider that ostracisation from his family constitutes serious harm, as detailed in the non exhaustive list found in s91R(2) of the Migration Act, or significant harm as defined in s.36(2A) of the Act.

5. The Tribunal notes that the applicant will have to make his own life in Sri Lanka without family support, given his choice to convert and practice as a religion. However as discussed with the applicant, he has a number of qualifications from Australian education providers that will provide him with the opportunity to gain employment in [industries] in Sri Lanka, particularly in [his] region, which is in the South of [Sri Lanka]. The Tribunal considers that the applicant will be able to gain employment, such that he will be able to support himself in the community. The Tribunal considers that the applicant’s opportunity to seek employment in locations where [related industries exist] will also allow him to practice his religious beliefs as his return will allow him to find a suitable Christian community for him to join in this area, now that his interest lies in that faith. The Tribunal consider that the applicant would return to Sri Lanka and find employment and religious opportunities. The Tribunal also notes that the applicant has the skills to assist him in dealing with his [condition] issues, as detailed by his psychologist.

6. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm from his family arising out of his conversion to Christianity or his practice of Christianity, on his return to Sri Lanka. The Tribunal considers that this is true despite the difficulties he claimed to have faced from his family historically due to his wasting money on drugs, alcohol and gambling.  The Tribunal considers that the applicant will not have an ongoing relationship with his family, in particular his [Relative A] and father, but that he will remain in contact with his mother. The Tribunal does not consider that not having an ongoing relationship with various family members provides a reason to be granted a protection visa.

7. The Tribunal finds that the applicant does not face a real chance of serious harm from his family because of his conversion to Christianity or practice of Christianity, now and for the reasonably foreseeable future. The Tribunal finds that the applicant does not face a well-founded fear of persecution for this reason.

8. Having considered the evidence and materials, the Tribunal finds that the applicant does not face a real risk of significant harm on return to Sri Lanka for this reason.

9. The Tribunal has considered the concern the applicant has about the community more broadly. The applicant stated that Christians were being harmed in Sri Lanka, though he personally had not seen this. He had heard of how Buddhists had married Muslims and been verbally abused. He stated that there was one family helped by an overseas church, and the people claimed that they were converting for money and forced to leave the village. This was in 1994. The applicant stated that previously he had a good reputation because of his past involvement with his temple, including providing assistance around the tsunami recovery efforts. The Tribunal noted that this was in 2004, and that the applicant had been absent for all but 4 months from Sri Lanka since 2006. The Tribunal expressed its scepticism that the community would remember the applicant’s activities as a Buddhist from so long ago, and be concerned if he did not return to continue them. The Tribunal does not consider that the applicant’s community will recall the applicant’s past activities or be concerned that he is no longer attending the temple as a practicing Buddhist.

10. The applicant and his supporters provided country information about violence against Christians in Sri Lanka, which the Tribunal has taken into account in its considerations. This includes information about police not taking action to stop harassment, and sometime participating in them.  ‘Buddhist monks (local thugs dressed as monks but may or may not be actual members of the Buddhist clergy)’[13]  were blamed for violent incidents. Sri Lanka was placed at a watch list rank of ‘45’ in terms of concern[14]. It was reported in various articles that there were at ‘least 120 cases of persecution in the past year’ as documented by a local human rights lawyer,[15] a figure repeatedly used in other reports as provided[16].

    [13][13] AAT Folio 54

    [14] See AAT Folio 70

    [15] AAT Folio 81

    [16] See articles at AAT Folios 80, 70, 74 57, 54, 49

11. There are reports of Buddhists damaging Christian buildings. A recent report from January 2017 identified by the Tribunal discusses a church destroyed by a mob.[17]

    [17] Sri Lankan church lives on, despite destroyed building and death threats from Buddhist monk", World Watch Monitor, 16 January 2017,

12. The Tribunal identified that there was limited information about converts to Christianity from other religions in Sri Lanka. The country information from the applicant includes a summary article that ‘pressure is also felt by believers from Buddhist, Muslim or Hindu backgrounds who are seen as traitors and consequently subjected to physical and verbal assaults’[18]. In an extended article from the same source it does discuss that converts from a Buddhist background experience opposition from family and relatives, and it was risky for converts to talk about their new faith. In the family sphere it was stated that converts face discrimination and harassment, but that concerns were limited. The reports talks broadly about the pressure on Christians as converts. Only one incident of violence was reported, with a Hindu convert killed by her mother.[19]  

    [18] AAT Folio 83

    [19] AAT Folio 72

13. The Tribunal notes the following country information about Christians in Sri Lanka, as discussed with the applicant at the hearing, which describes a different situation.  A recent report by the Special Rapporteur on Minority Issues to the United Nations stated:

    28. In many places, there is peaceful coexistence among different religious groups, temples, churches and mosques are constructed without hindrance and religious services are enjoyed without discrimination or harassment. The Special Rapporteur welcomes the establishment of the Inter-Religious Council under the President with the participation of religious leaders from many different religions, with the mandate to increase society’s understanding of and respect for other religious systems and institutions and serving as a platform for discussions, mediations, general peace building, planning and advising.

    29. However, challenges remain in relation to minority religious groups. The Special Rapporteur was informed about difficulties in obtaining new places of worship and accessing cemeteries, especially for members of smaller Christian and Muslim denominations. It appears that article 9 of the Constitution, as well as the non-statutory government circular issued in 2008 by the Ministry of Buddha Sasana and Religious Affairs, are sometimes used to the detriment of other religions, including as the basis for arbitrarily denying applications for construction of places of worship. At the same time, construction of Buddhist temples, shrines and statues in areas that were traditionally non-Buddhist is met with animosity.

    30. Many expressed grave concern about Sinhala-Buddhist nationalism and extremism, which gained particular force under the previous Government. Groups such as the Bodu Bala Sena (Buddhist Power Force) incited violence and hatred against religious and other minorities while proclaiming the racial superiority of Sinhala Buddhists and carried out attacks on places of worship as well as businesses and properties of religious minorities, including Muslims and Christians. The most notable of such incidents was the Aluthgama riots in June 2014 when mobs were said to have been mobilized by the Bodu Bala Sena to attack Muslim homes and properties following a minor traffic incident, leaving 4 Muslims dead and 80 injured. For more than six days, more than 6,000 people were reportedly trapped and left to starve in mosques. Regrettably, there has yet to be a credible investigation and effective prosecution following the incident.

    31. While the Special Rapporteur was informed that the incidence of violent crimes motivated by religious intolerance has significantly decreased since the new Government took office, civil society groups continue to report incidents of destruction of religious property and harassment of religious leaders. She was told by Christian as well as Muslim groups that in dealing with these cases, the police as well as the courts continue to ignore the motives — religious intolerance or hatred — behind such attacks and refuse to consider them as aggravating circumstances, thus failing to send a clear signal that they will not be tolerated. Many also reported that political patronage of religious leaders or politicians are often in the way of prosecution for these crimes, effectively contributing to a climate of impunity. Lack of accountability increases the likelihood for further violations.

    32. The Special Rapporteur is also concerned that hate speech, though also less prevalent since the change of Government, continues to plague Sri Lankan society. She echoes the concerns expressed by the Office for National Unity and Reconciliation about the rise in recent months in hate speech and joins in urging the relevant authorities to take appropriate action against all such incidents, regardless of the social status, ethnicity, religious background or political affiliations of the perpetrators.

    33. Such aggression and extremism must not be allowed or tolerated, particularly in a society that is already significantly fragmented and is seeking to re-establish long-lasting peace and harmony. Most Sinhalese Buddhist interlocutors noted that extremists represent a very small segment of the society and that the majority of Buddhists adhere to the key principles of Buddhism: tolerance, non-violence and non-discrimination.[20]

    [20] Report of the Special Rapporteur on minority issues on her mission to Sri Lanka A/HRC/34/53/Add.3", UN Human Rights Council, 31 January 2017

14. The recent DFAT Country Information report on Sri Lanka also provides similar information. Speaking broadly about religion in Sri Lanka , DFAT states:

    3.10 Religion plays a significant role in daily life in Sri Lanka and is directly linked to ethnicity: Sinhalese are mostly Buddhist and Tamils are mostly Hindu, and Christians are a minority of each. Muslims are seen as an ethnicity. The Sirisena Government has publicly said that it is committed to religious (as well as ethnic) reconciliation.

    3.13 DFAT assesses official discrimination on the basis of religion is rare as there are no official laws or policies that discriminate on that basis. DFAT is aware of reports that the former Rajapaksa Government sanctioned religious discrimination, particularly through support provided to the extremist Buddhist group Bodu Bala Sena (BBS / English: ‘Buddhist Power Force’), the most serious recent example being the Aluthgama Riots which occurred between Buddhists and Muslims in 2014. This example and the isolated reports since then are discussed further below (see ‘Muslims’ below).

    3.14 DFAT assesses that most members of religious groups in Sri Lanka are able to practise their faith freely. However, the risk of harassment or violence increases where practitioners attempt to proselytise/convert others.[21]

    [21] DFAT COUNTRY INFORMATION REPORT Sri Lanka 24 January 2017

15. A report from Minority Rights Group International identifies that there has been some violence, but that it was decreasing in 2015 and 2016, including a very low rate of physical violence, which was described as ‘notable decrease in violent attacks causing physical injury or property damage’.  The report stated that:

    During the period under review, from the beginning of November 2015 until the end of September 2016, 47 incidents of religious freedom violations against Christians were documented in 14 districts across Sri Lanka. Harassment and intimidation – particularly targeted at Christian clergy members – remains commonplace, frequently with the involvement of state actors, who were the main perpetrators of violations again Christians.

16. The report went on to say that:

    The operation of groups such as the BBS has visibly reduced under the Sirisena–Wickramasinghe government, indicating less space for impunity and organized violence. However, in many instances, those responsible for acts of incitement or previous incidents of violence have not been held accountable and violations targeting religious minorities continue at a lower level.[22]

    [22] Ibid p7

17. The Tribunal has considered the evidence of violence against Christians in Sri Lanka. The Tribunal prefers the independent information of the Minority Rights Group than the unsubstantiated reports as provided by the human rights lawyer ‘Miriam’, that was then repeatedly used in other reports. The Tribunal considers that the specific data that is included in the Minority Rights Group report is more reliable in its reporting.

18. The Minority Rights Group information demonstrates that the levels of violence against Christians has declined in recent years, in particular after the Rajapaksa regime’s support for groups like Bodu Bala Sena was removed. The upsurge of Buddhist nationalism was materially affected by the change of government in 2015. As detailed in the UN report, the ‘incidence of violent crimes motivated by religious intolerance has significantly decreased since the new Government took office’, however the Tribunal does note that it has not stopped entirely, that it was stated that ‘civil society groups continue to report incidents of destruction of religious property and harassment of religious leaders’. The Minority Rights report supports this information given its statement about the number and nature of the incidents reported.

19. The Tribunal has considered the information and evidence and considers that while there are examples of religious difficulties, these incidents are few, and revolve primarily around the verbal harassment of church leaders and some damage to church property. The applicant is not a church leader and as such will not face such harassment. On his evidence he will not be involved in proselytising, another cause of violence towards Christians[23]. The Tribunal considers that on return to Sri Lanka the applicant will be a member of a congregation and be permitted to worship as a Christian. He may be involved in communal activities for Christians, as he has been in Australia, but that this would not involve activities that would lead to him being targeted by Buddhists because of his Christian activities or because of his conversion from Buddhism to Christianity.

    [23] DFAT report, WWL 2017 report AAT folio 71

20. The Tribunal does not accept that the applicant will be harmed because of his conversion to Christianity or because of his practicing as a Christian in Sri Lanka. The Tribunal considers that the applicant will be able to practice his religion within a church community that he chooses, and will not be harmed because of this choice. The country information demonstrates that the levels of violence and intimidation are low, and that while there are isolated examples of converts being harmed, the Tribunal does not consider that in the circumstances that there is a real chance or a real risk that the applicant will face serious or significant harm in his circumstances for this reason.

1. Further, the Tribunal considers that the country information demonstrates that the level of violence against minorities, including Christians, is in fact reducing in present day Sri Lanka. The information identifies particular Christians who may be targeted, detailed as being church leaders or proselytisers. The applicant has not claimed that to be a church leader or a proselytiser, and thus the Tribunal considers that the country information demonstrates that the applicant’s concerns about being a Christian in Sri Lanka are not made out. The Tribunal considers that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his practicing as a Christian in Sri Lanka.

2. The Tribunal finds that the applicant does not have a real chance of serious harm as a Christian convert or a Christian in Sri Lanka, now and in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

3. Having considered the evidence and materials, the Tribunal finds that the applicant does not face a real risk of significant harm on return to Sri Lanka for these reasons.

4. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka arising from his family difficulties, either from wasting money on drugs, alcohol and gambling; his appearance; his friendship with [Mr A] and association with [Mr B]; or the new claims arising from his conversion to Christianity and practice as a Christian. The Tribunal finds that the applicant does not have a well- founded fear of persecution for these reasons.

5. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that there is a real risk he will suffer significant harm upon being removed from Australia to Sri Lanka.

   Ministerial Referral

6. The applicant and his supporters have provided information detailing the applicant’s involvement in his local community. The applicant appears to be a popular and active member of the [Church 1] and surrounding outreach activities. The applicant’s actions in the community are to be commended, the letters of [Pastor A] and [a representative] of [a named agency] both detail the contributions he has made in the area over the last few years. The applicant has been in Australia for an extended period, since 2006, and has made some strong connections to the community after a period of waywardness, and the information would demonstrate that his experiences have become the catalyst to assist other vulnerable people in the community, in particular from migrant backgrounds.

7. The Tribunal considers that the applicant’s protection claims are not made out, based on the information before it. However the Tribunal considers that the applicant may be a person suitable for the exercise of Ministerial discretion pursuant to s.417 of the Act, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. While the Tribunal will not be making the direct referral, the Tribunal considers that this may be something the applicant, his agent and his community may pursue.

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Stuart Webb
    Member