2206551 (Refugee) - [2024] AATA 4287

2206551 (Refugee) [2024] AATA 4287 (15 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs ROYA MAJD (MARN: 0701239)
CASE NUMBER:  2206551
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:James Lambie
DATE:15 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 March 2024 at 8:58am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religion – conversion from Buddhism to Christianity in Australia – mother harassed and threatened by relative and others, and applicant threatened and assaulted during return visit – police inaction and insults – mother reconverted, and no longer in contact – land dispute with relative – delay in applying for protection – applied after student visa cancelled – difficulty in collecting and translating documents – vague claims and limited and inconsistent evidence of church membership, activities and knowledge of teachings and practices – authenticity of court documents, hospital records, newspaper reports and text messages – limited evidence of mental health and treatment – country information – intimidation and violence, and low risk of official discrimination – relocation reasonably practicable – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 91R, 91S, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 15 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s.36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 May 2022
The applicant appeared before the Tribunal on 15 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Rev A]. Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review. The representative attended the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2206551 (Refugee) [2024] AATA 4287
Case: [2024] AATA 4287
Decision Date: 15 March 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an applicant from Sri Lanka, who claimed to have converted from Buddhism to Christianity. The applicant alleged that upon his return visit to Sri Lanka, he and his mother faced harassment, threats, and violence from relatives and others due to their religious conversion, and that local police failed to provide adequate protection. The applicant's student visa had been cancelled, and he subsequently applied for a protection visa, with his application being refused by a delegate of the Minister for Home Affairs, leading to a merits review by the Tribunal.

The central legal issues before the Tribunal were whether the applicant met the criteria for a refugee status under Australian law, and if not, whether he was entitled to complementary protection. This required the Tribunal to assess the applicant's claims of a well-founded fear of persecution in Sri Lanka based on his religion, and to determine if there was a real chance he would suffer serious harm if returned. The Tribunal also had to consider whether the applicant could reasonably relocate within Sri Lanka to avoid harm or obtain protection from Sri Lankan authorities.

The Tribunal found that the applicant's evidence regarding his religious conversion, the alleged threats and violence, and the lack of official protection was vague and inconsistent. While acknowledging the existence of country information indicating intimidation and violence in Sri Lanka, the Tribunal concluded that the risk of official discrimination was low and that relocation to another area of Sri Lanka was reasonably practicable. Consequently, the Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background On 16 September 2016 the applicant was granted a student visa (TU500) offshore and arrived in Australia [in] September 2016. [In] July 2017 the applicant departed Australia and travelled to Sri Lanka. [In] August 2017, the applicant returned to Australia and on 15 January 2018 lodged an application for a protection visa. On 27 July 2018 the applicant’s student visa was cancelled and the applicant was granted a Bridging visa E by the Department on 10 August 2018, and a subsequent Bridging visa E on 25 September 2018. On 16 March 2022 the applicant attended an interview with the Department regarding their application for a Protection via video conference. That application was subsequently refused by a delegate of the Minister for Home Affairs on 29 April 2022. On 5 May 2022, the applicant applied for a merits review of the delegate’s decision with the Tribunal. Claims The applicant’s claims are set out in his protection visa application, written claims and the delegate’s decision. His claims were summarised by the delegate as follows: ·After arriving in Australia in September 2016 he converted from Buddhism to Christianity;·After he converted to Christianity, he convinced his mother to convert to Christianity; ·His family in Sri Lanka all follow Buddhism, after his mother stopped practicing Buddhism her relatives began harassing her; ·His mother made formal complaints about the harassment, but local police from the predominantly Buddhist town refused to accept her complaint or take any action because of her “wrongful” religion; ·After the applicant travelled to Sri Lanka for a short visit in July 2017, a person known as [Mr B] tried to kill him and demanded his mother relinquish ownership of her house and land; ·The applicant made a formal complaint about [Mr B] to police, but the police officer demanded that the applicant cease following Christianity and practice Buddhism; ·The applicant filed a court case against [Mr B]; ·After the applicant returned to Australia in August 2017, [Mr B] visited his mother’s home and tried to kill her while also threatening to kill the applicant. During the applicant’s protection visa interview on 16 March 2022, the applicant provided the additional following claims: ·One year ago (2021) his mother was forced to become a Buddhist monk. ·Since his mother become a Buddhist again, the applicant is no longer in contact with her. ·If he returns to Sri Lanka the applicant fears he will be seriously harmed by [Mr B] and his other relatives, because of his religious conversion. ·Authorities in Sri Lanka will not provide adequate protection because he is a Christian. ·He cannot relocate to avoid harm because he does not have enough money and his relatives can find him in any part of Sri Lanka. Evidence presented prior to the hearing

Evidence

Evidence Before The Court

The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.A letter from the applicant describing his relationship with Christianity, dated 27 February 2023. c.A Baptism letter of the applicant dated 7 May 2023. d.Photographs of the applicant’s baptism. e.A reference letter regarding the Applicant’s baptism from [Rev A] of the [Suburb 1 Church 2] dated 7 June 2023. f.Translated Sri Lankan news articles dated 18 July 2017 and 19 July 2017. g.Translated text messages between the applicant and an undisclosed person from Sri Lanka. h.Evidence of the applicant’s status as an organ donor and a blood donor. i.A statement by the applicant regarding his claims and ability to provide further evidence. j.Translations of two newspaper articles, dated 18 and 19 July 2017.k.The applicant’s statement, dated 14 August 2023.l.A submission citing incidents of persecution of Christians in Sri Lanka, undated.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.Undated post-hearing submission, sent on 25 September 2023;b.Letter from [Area Health Service] to applicant, dated 6 September 2023;c.Nursing discharge, [Hospital], dated 3 September 2023;d.Hospital prescription, dated 6 September 2023;e.Screenshot of SMS physiotherapy appointment confirmation for 26 September 2023;f.Two photographs of prescription medication, uncaptioned;g.Screenshot of SMS scripture reading reminder, [Church 1], dated 7 November 2017;h.Screenshot of SMS consultation with psychologist, dated 29 June 2023;i.Bundle of 17 photographs, uncaptioned and undated;j.Translation of newspaper article, 23 March 2020, attaching original;k.Translation of newspaper article, 2 January 2015, attaching original;l.Report of [Mr D], clinical psychologist, to applicant’s general practitioner, dated 29 June 2023;m.Flyer for free psychology service, [Psychology provider], undated;n.Copy of hospital prescription, dated 18 September 2023,o.Mental health care plan, dated 24 April 2023;p.Referral for psychological assessment from [Dr E], dated 14 April 2023;q.Submission from the applicant, dated 20 August 2023;r.Bundle of screenshots of internet inquiries relating to translations, undated;s.Letter from [Pastor F], [Church 3, Suburb 2], dated 24 August 2023;t.Letter from [Mr G], psychologist, dated 26 August 2023;u.Bundle of certified translations of police complaints;v.Bundle of screenshots of media articles and Google searches, various dates.Hearing After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection. The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Sri Lanka. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Sri Lanka. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the refugee criterion and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background On 16 September 2016 the applicant was granted a student visa (TU500) offshore and arrived in Australia [in] September 2016. [In] July 2017 the applicant departed Australia and travelled to Sri Lanka. [In] August 2017, the applicant returned to Australia and on 15 January 2018 lodged an application for a protection visa. On 27 July 2018 the applicant’s student visa was cancelled and the applicant was granted a Bridging visa E by the Department on 10 August 2018, and a subsequent Bridging visa E on 25 September 2018. On 16 March 2022 the applicant attended an interview with the Department regarding their application for a Protection via video conference. That application was subsequently refused by a delegate of the Minister for Home Affairs on 29 April 2022. On 5 May 2022, the applicant applied for a merits review of the delegate’s decision with the Tribunal. Claims The applicant’s claims are set out in his protection visa application, written claims and the delegate’s decision. His claims were summarised by the delegate as follows: ·After arriving in Australia in September 2016 he converted from Buddhism to Christianity;·After he converted to Christianity, he convinced his mother to convert to Christianity; ·His family in Sri Lanka all follow Buddhism, after his mother stopped practicing Buddhism her relatives began harassing her; ·His mother made formal complaints about the harassment, but local police from the predominantly Buddhist town refused to accept her complaint or take any action because of her “wrongful” religion; ·After the applicant travelled to Sri Lanka for a short visit in July 2017, a person known as [Mr B] tried to kill him and demanded his mother relinquish ownership of her house and land; ·The applicant made a formal complaint about [Mr B] to police, but the police officer demanded that the applicant cease following Christianity and practice Buddhism; ·The applicant filed a court case against [Mr B]; ·After the applicant returned to Australia in August 2017, [Mr B] visited his mother’s home and tried to kill her while also threatening to kill the applicant.