1617430 (Refugee)

1617430 (Refugee) [2018] AATA 4977 (15 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617430
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Brendan Darcy
DATE:15 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 October 2018 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race– Sinhalese – religion – Roman Catholic and Buddhist – mixed religious identity – delay in lodging an application for a protection visa – adverse credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 25 September 2014 and the delegate refused to grant the visa on 22 September 2016.
The applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent, although the representative did not attend the scheduled hearing.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born on [date of birth] in [Town 1] in Puttalam district in Sri Lanka’s North Western Province. He also claimed to be a citizen of Sri Lanka.
Attached to the Departmental [file] is a copy of the applicant’s expired Sri Lankan passport issued [in] 2006 and which expired [in] 2016. The passport indicates that the applicant had travelled from Sri Lanka to [various countries].
A copy of the applicant’s birth certificate was also submitted indicating the applicant was born in [Town 1].
The same forms claim the applicant completed [qualifications] since arriving in Australia.
The applicant has an extensive visa and travel history since arrived in Australia for the first time [in] July 2011 while holding a [student] [visa].
While the applicant held this student visa he departed Australia for Sri Lanka [in] September before returning [in] October 3.10; departed a second time [in] June 2011 for Sri Lanka before returning [July] 2011; a third time [in] December 2011 for Sri Lanka before returning to Australia [in] February 2012; and a fourth time [in] May 2014 for Sri Lanka again before returning to Australia by [June] 2014.
According to the applicant’s submitted answers about his previous travel, the applicant departed for Sri Lanka for the first time to attend his mother’s funeral; for the second time to marry his wife and to holiday in [Country 1]; the third time to visit his wife and other relatives; and the fourth time to attend the birth of his [child].
The applicant applied for a class XA subclass 866 protection visa on 24 September 2014 and was granted associated bridging visa. His student visa ceased on 30 September 2014.
According the applicant’s submitted 866 forms, he is ethnically Sinhalese; that he can speak, read and write in Sinhala; and that he belongs to the Roman Catholic and Buddhist faith traditions.
The applicant further claimed that his residential address was [a] suburb in Colombo in the Western Province of Sri Lanka between 1996 and 2009.
While there is no submitted marriage certificate, the applicant claimed to have married [his wife] [in] 2011 in Negombo in his 866C form. He claimed that his wife remains in Sri Lanka with his only biological child.
The applicant provided written reasons as to why he is owed Australia’s protection obligations in his 866C form. Below is a summary of those claims:
·     The applicant has faced painful experiences due to his parents' mixed religious backgrounds. The applicant's mother was Catholic while his father was Buddhist.
·     The applicant and his siblings used to attend church and the temple and considered themselves as both Buddhists and Catholics.
·     The neighbourhood where the applicant lived was predominantly Sinhala Buddhists and their mixed religious identity was not welcomed by the neighbours. Buddhist priests warned their neighbours not to associate with them and they were labelled traitors and not allowed to enter the temple.
·     They received anonymous phone calls abusing them, and some callers threatened to destroy their family. The applicant finally decided to leave Sri Lanka to escape this environment.
·     The applicant claimed to have experienced harm in his country. He has been verbally harassed and abused by neighbours and Buddhist priests and his family has been ostracised and not allowed to mix with the community.
·     People have spoken to them in an unfriendly manner and they have been made to feel like they are not a part of the community and this has affected their mental well-being.
·     The applicant claimed he [and his family] started to receive many phone calls, with the callers identifying themselves as the "patriots and defenders of the Buddhist state". They told them they will not let the applicant [and his family] live in peace unless they convert to Buddhism. They questioned the applicant [and his family] why they go to church.
·     They have threatened to set fire to their house if they continue to go to church. These threats caused the applicant huge mental distress and he wanted to leave the country. His mental well-being has been harmed a lot due to the harassment and threats.
·     He feared he will face the same unpleasant situation if he now returns to Sri Lanka. He will be forced to restrict his movements and he will not be able to go to church as he will be harassed and abused verbally.
·     The applicant claimed it is religious extremist groups like Bodu Bala Sena (BBS) and Ravana Balaya who are harassing the non-Buddhists. The current situation is very bad in Sri Lanka as non-Buddhists are threatened and forced to stop worshipping their gods.
·     Several Catholic churches have been attacked by nationalist groups while a Roman Catholic church in Rajagiriya was completely destroyed. Properties belonging to non-Buddhists were also attacked and confiscated. These happened in Aluthgama to the Muslims. Being a non-Buddhist "has become a sin";
·     These para-military extremist groups are sponsored by the Government and they are provoking Buddhists to act against non-Buddhists;
·     Extremist monks are going from village to village delivering provocative messages and persuading Buddhists to isolate Muslims, Hindus and Catholic;
·     As a non-Buddhist, it is no longer secure or safe to live amongst the Buddhist majority as the applicant believes he will be harassed and attacked by these [extremist] groups;
·     The applicant does not believe the authorities will protection him as extremist groups such as BBS, Sinhala Ravaya and Ravana Balaya are sponsored by the Government. According to the applicant, the BBS has very close links to the Government's Defence Secretary while the police have no freedom to act independently while even judges are subject to Government influence; and
·     The applicant does not have any documentary evidence to support his claim for protection.
On 15 September 2016, he applicant had an interview with the Department to elaborate on his written claims.
On 22 September 2016, a delegate on behalf of the Minister refused to grant the applicant a protection visa.
On 20 October 2016, the applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal with the decision record attached.
On 10 October 2018, the applicant attended a scheduled hearing where he was assisted by an interpreter in the Sinhalese and English language.
During the hearing, the applicant explained that he had departed Australia for fifth time since his initially arrived. The applicant provided a copy of his recently issued valid passport which indicated he travelled to Sri Lanka between [March] and [April] 2018 before returning to Australia [in] April 2018.[1]
[1] AAT Folio 68-69
No further documents or submissions were provided to the Tribunal prior to this hearing. At the time of writing this decision, there were no further submissions or documents submitted to the Tribunal.
Country Information: Sri Lanka
In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report on Sri Lanka, 23 May 2016 (the DFAT report).
Religion
According to the DFAT report, Sri Lankans practise four major religions: Buddhism (70.2 per cent of the population, mostly Sinhalese in the Southern, Central and Eastern Provinces); Hinduism (12.6 per cent, mostly Tamils in the Northern Province); Islam (9.7 per cent, predominantly in the Eastern, Western and North-Western Provinces); and Roman Catholic and other Christian denominations (7.4 per cent, concentrated in the Western and North-Western Provinces). Fewer than 7,000 people claim membership of other religions.
DFAT is aware of reports that the former Rajapaksa government sanctioned religious discrimination, including by supporting the extremist Buddhist group Bodu Bala Sena (BBS, English: Buddhist Power Force). DFAT is aware of reports from 2017 of local authorities seeking to close places of worship, questioning the status of religious registration, and inconsistently applying the law against perpetrators of discrimination and religious violence. Some local government officials and police continue to refer to a 2008 circular of the Ministry of Buddha Sasana and Religious Affairs, revoked in 2015, which states that all new constructions of places of worship require the approval of the Ministry. DFAT is aware of reports of children being denied admission to schools because of their religious background, and of children being forced to observe Buddhist rituals in state schools.
DFAT further assesses that while no laws or official policies discriminate on the basis of religion, adherents of religions other than Buddhism face a low risk of official discrimination from local government authorities, which can affect their ability to practise their faith freely.
With regards to Christian Sri Lankans, the DFAT report states:
Christians
3.25 Around 82 percent of Christians in Sri Lanka are Roman Catholic. Other Christian denominations include Anglicans, Assembly of God, Baptists, The Church of Jesus Christ of Latter-day Saints (Mormons), the Dutch Reformed Church, Jehovah’s Witnesses, Methodists, and Pentecostals. Membership of evangelical Christian groups remains relatively low, but is growing. There is a sizeable Tamil Christian community.
3.26 The National Christian Evangelical Alliance of Sri Lanka (NCEASL) documented 96 attacks against Christians during 2017, compared to 90 in 2016 and 89 in 2015. The incidents primarily involved violence, discrimination and intimidation, but also included demands for closure of churches, legal challenges and police inaction. In some cases, local officials requested evangelical Christian churches to register as places of worship, although no law or regulation requires registration. Buddhists were the perpetrators of most of the reported incidents, followed by Hindus and, to a lesser extent, Catholics against other Christian denominations. DFAT is aware of reports of Hindu and Buddhist mobs preventing Christians from burying their dead in public cemeteries in the North Central and Eastern Provinces in recent years.
3.27 In June 2017, the then Justice Minister, Wijeyadasa Rajapakshe, publically threatened to disbar human rights lawyer Lakshan Dias after Dias appeared on a talk show where he cited an NCEASL report on attacks on Christian places of worship.
3.28 DFAT assesses that Christians in Sri Lanka face a low risk of official and societal discrimination. The number of incidents targeting Christians has remained largely static over recent years, and is highest in Buddhist majority regions in the North Central, South and Western Provinces. DFAT is not aware of any specific incidents in 2017 attributed to the BBS.

As reported in the UK’s Catholic Herald (2 January 2015), Catholics have not been targeted by the BBS, although they may be vulnerable to extremism:
Even trickier is that some accuse the government of sympathising with BBS. They point out that the president’s brother, the defence secretary Gotabaya Rajapaksa, was a guest at the unveiling of a BBS-linked academy. He insists, though, that he has no formal links with the group. But while it may be true that the government is sympathetic towards Sinhalese nationalism, BBS supporters themselves feel betrayed by their government. On YouTube Gnanasara can be seen railing against ministers who “holler on the stage in the name of Buddhism to say we are racists and extremists”.

So far BBS has not targeted Catholics, who make up the vast majority of Sri Lanka’s 1.2 million Christians. The Church is well established, having been brought by Portuguese missionaries in the 15th century, and seen as closer to the establishment. Indeed, the president’s wife, a former Miss Sri Lanka called Shiranthi Rajapaksa, is a Sinhalese Catholic.

But the Catholic Church is still vulnerable to Buddhist extremism. Attacks on churches are not uncommon. In 2013, for instance, vandals smashed a statue of the Virgin Mary and tabernacle, and tried to burn the Eucharist at a church in Angulana, near Colombo. Four years earlier a mob of 1,000 smashed the interior of a church in the town of Crooswatta, assaulting parishioners with clubs, swords and stones, leaving several to be treated in hospital.

In the face of all this, Church leaders tend not to denounce Buddhist nationalism too vigorously. Instead, they cultivate good relations with mainstream Buddhist leaders and the president, Mahinda Rajapaksa. This strategy has drawn criticism, with one critic accusing the Church of being “limp-wristed” in the face of persecution.[2]
Interfaith/interreligious marriages
[2] CXBD6A0DE18771: "Sri Lanka’s not-so-tranquil Buddhists", Catholic Herald, 02 January 2015, >
DFAT also reports that no official data records the incidence or nature of interfaith/interreligious marriages, but anecdotal information suggests that they are rare. Sri Lankan Muslims seem more likely to marry Christians than members of other faiths. A non-Muslim wishing to marry a Muslim must convert to Islam and raise any children as Muslim. DFAT is aware of reports that such conversions are sometimes symbolic. The BBS has in the past raised concerns over marriages of Buddhist women to Muslim men, couched in terms of Muslim expansionism within Sri Lanka. Within the Muslim community, social stigmas attach to those who marry outside the faith. Marriage between Christians and Hindus is more common than any other kind of interfaith marriage in Sri Lanka, and Christians and Hindus co-exist peacefully in the north. Sinhalese Buddhists sometimes marry Christians. DFAT is also not aware of any discrimination against children of mixed marriages. State, rather than religious, law governs most mixed marriages.
Non-disclosure notices
There were no non-disclosure notices issued by the Department attached to the departmental file.
ASSESSMENT OF CLAIMS AND FINDING
Country of Reference
The applicant claims to be a citizen of Sri Lanka and provided a copy of his expired passport issued by Sri Lanka to the department with his protection 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.
The Tribunal accordingly finds the applicant’s country of origin and reference is Nepal for the purposes of s36(3) of the Act.
Third Country Protection
Under section s36(3), the Tribunal can consider that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, in a country apart from Australia, including countries of which the non-citizen is not a citizen.
However, there is no evidence before the Tribunal that the applicant has the right to enter and reside, either temporarily or permanently, in any third country.
Credibility Findings
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.
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.
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.
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).
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.)
Accepted Circumstances
While the Tribunal holds some significant credibility concerns about key dispositive claims advanced by the applicant, there are a number of aspects of his background that it accepts. This includes the following:
·The applicant was born in [Town 1] in North Western Province [to] Sinhalese parent and named as outlined above, as claimed;
·The applicant moved from North Western Province to live with his maternal aunt [in] Western Province to study [and] he continued reside in this area until his departure to Australia;
·The applicant’s father was lost at sea in 1992, as claimed at the scheduled hearing;
·The applicant is ethnically Sinhalese and can proficiently speak read, write English and Sinhala;
·Prior to arriving in Australia, the applicant had travelled to [various countries] and that he completed a [qualification] in Sri Lanka;
·The applicant was granted a student visa in 2009 for the purposes of [studying] and first arrived here in 2009;
·The applicant’s mother [passed] away in 2012 and that he attended his mother’s funeral when he returned to Sri Lanka between [September] 2010 and [October] 2010. This was the applicant’s first departure from Australia;
·The applicant departed Australia to return to Sri Lanka for a second time in December 2011 to marry his wife and that he returned to Australia via [Country 1] in February 2012;
·The applicant departed Australia a third time when he returned to Sri Lanka between August 2013 and September 2013 to visit his wife; and
·The applicant departed Australia a fourth time when he returned to Sri Lanka between April and June 2014 for the birth of his [child]; and
·As discussed in the hearing, the applicant departed Australia for Sri Lanka for a fifth time [in] April 2018 and that he returned to Australia [in] March 2018.
Applicant’s religious identity
The applicant’s religion and religious identities are critical to the applicant’s dispositive claims. In this regard, the applicant claimed he was born into a mixed religious family whereby his father was a Buddhist and his mother a practicing Roman Catholic. He claimed that faced a real chance of serious harm based on those Buddhist extremists who imputed him as a convert from Buddhism to Catholicism based on his father being a Buddhist and that he shared his father’s distinctively Buddhist [surname]. It was this reason that he was singled out for harassment in the past and that he feared being killed if he was removed from Australia to Sri Lanka.
During the scheduled hearing, the Tribunal asked the applicant to fully clarify his religious affiliation during the hearing. The applicant responded emphatically that a baptised and practicing Roman Catholic; that his wife was as well; and that his [child] was baptised in the Roman Church.
There is no corroborating documentary evidence such as a certificate recorded by a Catholic parish in which the applicant was baptised or confirmed or married in a Catholic church. However the applicant was able to demonstrate an satisfactory but not a deep level of knowledge of the Roman Catholic faith and practices: he was able to recite Catholic prayers and demonstrate some basic scriptural, ecclesiastical and other knowledge that it would be reasonable to expect a practicing Roman Catholic who was educated in a Catholic school to recall. With no evidence to the contrary, the Tribunal accepts the applicant’s father was a Buddhist and that his mother was a Roman Catholic. It is accepted the applicant attended Catholic schools as outlined in his 866 application forms; it is also accepted that the applicant, along with his siblings, identified as both Buddhists and Catholics as growing up; that he attended temple on occasions but he followed the Roman Catholic faith of his mother.
It is also accepted that the applicant garnered comments and questions from Sri Lankan Buddhists as to his religious affiliation based on his paternity and surname, as claimed.
The Tribunal further accepts that that the applicant married a Catholic Sri Lanka of Sinhalese background as claimed. It is also accepted the applicant’s wife and his [child] formally belong to the Roman Catholic Church as baptised into that Church under those rites. It is also accepted the applicant’s wife regular attend Catholic services, including weekly Mass at her home parish in Sri Lanka.
Credibility concerns: incidents of past harm and harassment
A number of credibility concerns were raised with the applicant based on the discrepancies between his written and oral evidence. Of particular concern to the Tribunal had been the substantial inconsistencies between his written and oral claims about past incidents.
On the one hand, the applicant submitted written claims for protection which included he had faced painful experience due to the difference in the religious identities of his parents; that Buddhist priests warned neighbours not to associate with him and his family; that they were labelled traitors and not allowed to enter Buddhist temples; that they were verbally harassed by neighbours and Buddhist priests and that when the family participated in community events such as New Year celebrations, they were forced to feel they were not part of the community. He also claimed that he received many telephone calls by callers themselves patriots and defenders of the Buddhist state and that they will not let the applicant live in peace unless he converted to Buddhism and that when his family when to church, they would cream filthy words at his family and threatened to set firs on the family house.
However, on the other hand, the applicant’s oral evidence was strikingly dissimilar.
During the hearing, the Tribunal request the applicant to outline the reasons he would be specifically targeted. He said he had not experienced any difficulties while at school and that since 2003 there were a number of incidents harming non-Buddhists by extremists and nationalists. Specifically, he recalled an incident in 2007 or 2008 in which he was approached outside of his church by a Buddhist who said that the applicant should be a Buddhist because his father had been a Buddhist. The applicant said nothing else happened and no threat was conveyed, but as there had been many attacks against Catholics and other non-Buddhists at the time, he wanted to leave Sri Lanka. The applicant did not claim that he was a member of any parish where any of the attacks on Catholic churches had occurred.
The applicant did not mention any specific incident that occurred to him or his family that resembled in his written claims. Instead, the applicant provided oral evidence that when he first moved to Australia that Sinhalese Buddhists went to his sister’s house enquiring about the applicant’s whereabouts but did not make threats either indirectly to the applicant or directly to his sister who is a practising Buddhist. He claimed the only other incident occurred when he was followed by people only during his last and very recent visit in Sri Lanka in April 2018. The applicant claimed that after four days after he arrive his father in law noticed around the house and this prompted the applicant to leave Sri Lanka earlier. The applicant claimed his father in law was approached after the applicant departed. However the applicant did not claim they conveyed any threats or provide any reason as to their asking about his whereabouts. The applicant assumed it was because they wanted him to convert to Buddhism. He had never claimed he ever received any direct or indirect threats; neither his wife; nor anyone in his family. The only other past incident the applicant recalled was a query the applicant received from a Buddhist monk at his mother’s funeral when the monk asked whether he was a Roman Catholic given his surname was a distinctively Buddhist. The applicant admitted this was not a threat.
The Tribunal requested the applicant to explain the differences in the written and oral testimony, in that he did not mention anything about direct threats by priests, neighbours or threatening phone calls and nothing about indirect threats through his sister. The applicant responded the written claims were not correct but could not explain as to the reasons they were submitted. Had the applicant been genuinely harassed and threatened has he had claimed in his written reasons, it would have been reasonable for him to recall such dramatic incidents during the scheduled hearing. However he did not and this invited the Tribunal to consider the applicant’s written and oral evidence were significantly exaggerated or fabricated for migration purposes. The discrepancies between the written and oral claims about past incidents of harm and harassment targeting the applicant were so significant that the Tribunal finds they were so unreliable, lacking in credibility and finds that the applicant had fabricated his written claims about threats and insults by Sinhalese Buddhist neighbours and clergy, including threatening phones and that he fabricated his oral claims about threats conveyed indirectly to family members and that neighbours or militant Buddhists were seeking the whereabouts of the applicant.
Having made this finding that the applicant had fabricated these specific claims about past incidents, the applicant has invited the Tribunal to consider whether there are reasons to doubt the credibility of the applicant ever holding any genuine or deep or urgent well-founded fears of persecution for any Convention or non-Convention reasons, if the applicant were to return to his country of nationality and reference, now or into the foreseeable future.
Applicant’s travel and visa history
In the context of these adverse credibility concerns, the applicant’s travel history and his delay in applying for a protection visa is a serious credibility concern for the Tribunal in this matter. The Tribunal notes that it is 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):
As discussed in the hearing, the applicant has returned to Sri Lanka five times since he claimed to have held a well-founded fear of persecution based on his religion following the abovementioned 2011 incident. These five visits are outlined above and were generally for a period of two to three weeks. At the hearing, the Tribunal informed the applicant it found these return visits to the country where he feared persecution problematic for his claims that he is owed Australia’s protection obligations as they strongly indicated the applicant did not have any genuine, deep or urgent fears of persecution. The applicant explained that he returned to Sri Lanka that he never remained in place except when he visited his mother’s place. The applicant also claimed he sought to apply for a student visa in 2011 to escape religious persecution and that the delay in his protection visa until September 2014 was due to his ignorance of such a migration option and because his student visa had a stay period of five years. He claimed that he applied from Sri Lanka through an agent when he first arrived. The applicant also revealed during the hearing that he attempted to apply for a [student] visa to allow his wife to migrate to Australia as a dependent visa holder in 2012 or 2013; however the application was unsuccessful due to insufficient funds. The Tribunal enquired if the applicant as to the reason he had not applied for a protection visa given he had access to professional advice and he knew of their expertise. The applicant also outlined to the Tribunal he held a [student visa], he did not complete a [certain course] as it was too expensive. Overall the Tribunal found the applicant’s explanations for his return trips to Sri Lanka to have substantially undermined his claim that he held a genuine personally held fear of persecution since his initial departure from Sri Lanka in 2011 based on any Convention reason and that it was further undermined by the weak and inconsistent reasons for the delay in his protection visa application until 2014. In particular, the Tribunal finds to be inconsistent to have claimed he left Sri Lanka in the first ignorance of protection visas when he had access to and knowledge of migration advice and assistance since 2011. In the context of these adverse credibility concerns, there is a strong thread of evidence that the applicant applied for a protection visa because he could not meet the criteria for a further student visa and because his migration options had considerably narrowed as his student visa was set to expire in 2011. For these reasons, the Tribunal does not accept any of these explanations for the delay for a protection visa and it does not accept he moved around Sri Lanka to avoid harassment or harm as claimed in the hearing. Based on the same reasons, it does it accept that the applicant did not have a genuine or deep or urgent subjectively held fear of persecution based on his religion or religious identity or any other related Convention reason, either at the time of his arrival or at the time of his application with the Department.

Having cumulatively considered the credibility of these specific claims about incidents of part harm or harassment, the delay in applying for a protection visa and his return trips to Sri Lanka, the Tribunal finds that the applicant has submitted these critical claims that he faces a real chance of serious harm based on his religion and religious identity, imputed or otherwise, to have been contrived in order to augment his otherwise credible claim that non-Buddhists in Sri Lanka have been targeted in the past for harm and harassment for a Convention reason. The Tribunal further finds that he undertook to submitting such fabrications so in order to be granted permanent residency for migration purposes and not because he held any genuine or deep or urgent subjective fears of serious harm based on his religion, his religious identity, imputed or otherwise or any other relation Convention claimed, at the time of application, now or into the foreseeable future.
Real chance of serious harm based on the applicant’s religion or any other related Convention reason
While the Tribunal has made a number of adverse credibility findings that the applicant is not a reliable witness and that the applicant fabricated incidents of past harassment and threats, the applicant is genuinely a Roman Catholic from a mixed religious heritage background. In this regard, the Tribunal has considered whether there are any objective reasons for accepting the applicant faces a real chance of serious harm based on these Convention reasons if he were returned to Sri Lanka. After all, as the abovementioned Catholic Herald reported in 2015, Catholics in Sri Lanka remain vulnerable to such attacks as other Christians from evangelical denominations or other non-Buddhists more generally.
The country information was discussed in some detail with the applicant during the scheduled hearing and that he stated he feared being killed based on his religion and religious identity if returned to Sri Lanka. During the hearing, the Tribunal discussed DFAT’s assessment that the number of incidents targeting Christians has remained largely static over recent years, and is highest in Buddhist majority regions in the North Central, South and Western Provinces. DFAT is not aware of any specific incidents in 2017 attributed to the BBS. During the hearing, the applicant claimed that non-Buddhists face an ongoing threat against the BBS and other groups and that his fears of returning were heightened by the Kandy riot of March of this year in which BBS members targeted Muslims.
While it is plausible that the applicant experienced insults from or uncomfortable questioning by Buddhists in the past because the applicant was not identifying as exclusively Buddhist or was seen to be a convert from Buddhism, the Tribunal can find no information that Sri Lankans of mixed religious heritage are denied entry into a temple as outlined in his written claims which were undermined by the applicant’s oral claims in which the applicant stated he experience no problems. The Tribunal also notes the DFAT report that Sinhalese Buddhists sometimes marry Christians, albeit rarely and that it is also not aware of any discrimination against children of mixed marriages. The Tribunal was unable to find any reports of the progeny of Buddhist and Christian mix marriages are barred from temples or face any other acts of harassment or harm for this reason. Again, noting neither the applicant nor his representative submitted any country information to support the claim that Sri Lankans from parents from mixed Christian and Buddhist faith traditions. This strongly indicated that Sri Lankans of mixed Roman Catholic and Buddhist heritage are not targeted for significant physical harassment or physical ill-treatment or any other serious harm on any frequent or widespread basis.
Neither can the Tribunal locate any independent country information that any Catholic Church has been specifically and openly targeted by BBS or any other religious or nationalist group. This includes no reports of the BBS involved in the Sacred Heart church and monastery in Rajagiriya in Colombo or that it was completely destroyed (as claimed in the applicant’s written claims). Although the incident clearly involved Buddhists, it appeared to be an isolated incident. Indeed the monastery’s website makes no mention of any damage in 2014 or earlier.
The Tribunal accepts the country information that nationalistic Buddhist and/or Sinhala groups such as BBS, Sihala Ravaya and Ravana Balakaya have targeted Christian congregations, churches and other facilities in the past; however the overwhelmng majority of these attacks were aimed at evangelical churches. Other than the serious 2009 attack on a parish church in Crooswatta in Western Province, which was triggered by Buddhist opposition to the church’s construction and during which the police arrested eleven suspects,[3] only a few act of anonymous vandalism have been reported. There is no country information to support that Catholic churches, schools or festivals have been targeted by any of the groups in recent years or on any regular basis. Nor does the available country information support the applicant’s written claim that Sinhalese and/or Buddhist Sri Lankans have targeted Catholic residents in predominately Buddhist neighbourhood or villages by protesting outside of their residencies or make threatening calls or the targeting of any Sri Lankans accused of apostasy from Buddhism. In this regard, the Tribunal again notes neither the applicant nor the applicant’s representative were able to submit any media reports or other country information to support this claim.
[3] Catholic Church attacked, suspicions fall on Buddhist extremists, Melani Manel Perera, AsiaNews,9 December 2009, sourced from WWRN: >
The Tribunal further finds that the available country information overwhelming undermines the applicant’s argument that there is a real chance of serious harm based on the applicant’s religious background and identity as a Catholic or as a non-Buddhist or his mixed religious heritage based on his own particular circumstances, if he were to return to anywhere within Sri Lanka, now or into the reasonably foreseeable future. Neither does the country information that the applicant has a real chance of serious harm by being targeted by any Buddhists, Sinhalese or otherwise, either as neighbours, cleric or belong to any extremist or violent nationalist grouping based on his Roman Catholic membership, as there is insufficient evidence to credibly or convincingly claim there is no pattern or trend by such groups to target Roman Catholics or imputed converts from Buddhism to Catholicism.
Based on the country information and in the context of the Tribune’s adverse credibility findings, the Tribunal finds the chances of the applicant facing serious harm based on his religion or his religious identity, imputed or otherwise, as Convention reasons to be remote and far-fetched and not real, if he were to return to anywhere in Sri Lanka.
For completeness, the Tribunal has considered whether the applicant will be faced with a real chance of serious harm or a real risk of significant harm based on the applicant’s political opinion, imputed or otherwise, that might be related to his claimed religion or religious identity. In this regard, the Tribunal notes the applicant has argued that internal protection would be denied to him due to the undue influence of such groups in the now defunct Rajapaksa government which has been replaced by the UNP-led Sirisena government. The applicant did not advance that he was political active or held any political membership, either in his written or oral claims.
Nevertheless, in this regard, the Tribunal acknowledges that nationalistic Buddhist and/or Sinhala groups such as BBS, Sihala Ravaya and Ravana Balakaya are politically as well as religiously motivated to target non-Buddhists; including Christians and that they connected with a small group of minor parties such as Jathika Hela Urumaya (JHU or the National Sinhala Heritage party). The JHU contested its first parliamentary election on 2 April 2004. On that occasion, all of its candidates were Buddhist monks. At the 2004 election the party won 5.97% of the popular vote (a total of 552,724 votes) and nine out of 225 seats.[4] They supported President Mahinda Rajapakse in the 2005 presidential election. In 2014 party decided to withdraw support to Mahinda Rajapaksha and support the common candidate Maithripala Sirisena backed by United National Party. In the 2015 general election party contested under the United National Party symbol elephant and won 3 seats.[5] Champika Ranawaka was appointed as the Minister of Megalopolis and Western Development. The country information does indicate a nexus between the BBS and other non-state actors and the JHU and that these nationalist forces have some influence among the ruling parties since 2004. It is conceivable such feverish political actors will target Catholics as non-Buddhists or anti-nationalists for reasons of political expediency and that they do have some political influence.
[4] Mahinda Deegalle, "JHU Politics for Peace and A Righteous State," Buddhism, Conflict and Violence in Modern Sri Lanka (ed.) Mahinda Deegalle, Routledge, London and New York, 2006, p. 236
[5] JUH to Support Maithripala Sirisena, Onlanka, 2 December 2014, >
During the hearing, the applicant acknowledged that some BBS leaders have been arrested and detained and not released for their role in the Kandy riots, indicating that the above-mentioned political nexus is not one that allows such violent non-state actors to act with impunity. Given this and the paucity of country information about such politically motivated violence targeting Catholics or from religiously mixed backgrounds such as the one to which the applicant belongs, the Tribunal finds the chances of serious harm arising from the applicant’s political opinion, imputed or otherwise, related to his religious identity to be remote and far-fetched and less than real.
The Tribunal has also considered whether the applicant faces a real chance of serious harm based on any official or societal discrimination towards the applicant’s religion. During the hearing, the Tribunal discussed the DFAT report’s assessment that Christians in Sri Lanka face a low risk of official and societal discrimination. Based on this assessment, the Tribunal is satisfied that the applicant does not face a real chance of serious harm arising from official or societal discrimination based on his religion and religious identity or any other related Convention reason, if he were to return to Sri Lanka, now or into the reasonably foreseeable future.
Overall, the Tribunal cannot find any credible or any independent country information that the applicant will be targeted either now or in the foreseeable future based on any aspect of the applicant’s religion as a Roman Catholic or his religious identity as a person of mixed religious heritage, as claimed, and that the chance of serious harm for these related Convention reasons are not more than a remote or far-fetched chance.
Accordingly, and with particular emphasis on the Tribunal’s adverse credibility findings about the applicant’s specific claims about past incidents of harassment and threats, there are no subjective or objective reasons for the Tribunal to accept the applicant has a real chance of serious harm, including being killed or through discrimination, based on his accepted religion as a Roman Catholic, his accepted mixed heritage, as an imputed convert from Buddhism, as a non-Buddhist or any other related Convention reason including his imputed political opinion, if he were to return to anywhere within Sri Lanka, now or into the foreseeable future.
Real risk of significant harm based on the applicant’s religious identity
The Tribunal made a number of critical findings arising from the applicant’s lack of credibility the country information that the applicant has less than a real chance of serious harm arising from his religion and religious identity, if returned to Sri Lanka.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342]
Given the Tribunal’s overall ‘real chance’ finding, the Tribunal does not have any substantial reasons to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, will suffer a risk of significant harm of any kind outlined in s.36(2A) that is more than remote or far-fetched risk based on the same considerations about the applicant’s religion and religious identity.
Cumulative Findings
At no stage did the applicant advance any fears regarding the real chance of serious harm or the real risk of significant harm based on his ethnicity, his nationality, his political opinion, imputed or otherwise, or membership of particular social group including as a failed asylum seeker or as a forced returnee, or for any other matter not related to his religious claims, if he were to return to Sri Lanka. It is noted the applicant did not illegally depart from Sri Lanka.
As held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, the Tribunal observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or
argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
There are no other residual claims including Convention based claims, to consider in this review application.
Having considered the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason prescribed under the Refugees Convention, if he were to return to anywhere within Sri Lanka, now or in the reasonably foreseeable future.
Therefore the applicant does not satisfy s.36(2)(a).
Furthermore, having considered the applicant's claims individually and cumulatively and having regard to all of the evidence, the Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm as defined in the Act’s complementary protection provisions to include arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment, as required by s.36(2)(aa).
Conclusion
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Brendan Darcy
Member

[2018] AATA 4977

15 October 2018

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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Natural Justice