2206551 (Refugee)

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 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.
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.
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
The applicants produced to the Department of Home Affairs (the Department) the following documents:
a.The applicants’ protection visa application form.
b.A statement of claims by the applicant undated.
c.Copies of the applicant’s passport and birth certificate.
d.A translated police complaint by the applicant dated 26 December 2017.
e.A reference letter from [Pastor C] of the [Church 1] dated 27 December 2017.
f.A translated affidavit lodged at the Magistrate Court [Town] by the applicant dated 21 August 2017.
g.A translated extract from the information book of [Location 1] Police Station.
h.A translated judgment by the Magistrate Court of [Town 1] dated 21 August 2017.
i.A submission by the applicant regarding his request for a Bridging Visa A.
j.A letter by the applicant to the Department regarding his blood donations, registration as a bone marrow donor, organ donor and charitable donations received by the Department on 21 October 2020.
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.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Sri Lanka.
The Tribunal discussed his claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. He stated they were and that he did not need to change them.
The Tribunal took the applicant and his representative to the purported newspaper reports and noted that they had not been translated by a NAATI certified translator and also that the publications from which they had come had not been identified. It noted that the text messages had also not been translated by a certified translator and there was no means by which the Tribunal could authenticate them. It indicated that, unless these deficiencies could attended to, it was unlikely that they could be given much weight. It noted that, in addition, there were some purported translated extracts from newspapers or periodicals but no originals of those sources had been submitted.
The Tribunal asked the applicant what he planned to study when he first entered Australia on a student visa. He said he was studying hotel management. He told his family he would enter a Buddhist monastery when he turned 23, and the possession of overseas qualifications would ensure rapid promotion in the monastery.
The Tribunal asked when he became interested in Christianity. He said it was in about April 2017. The Tribunal asked how this interest arose. He said he became interested through a website, “Bible Gateway.” The Tribunal asked how he found this website. He said a friend had sent him the link. The Tribunal asked who this friend was. He said his name was [Mr H]. The Tribunal asked if he was in Australia. He said he was. The Tribunal asked why he had not produced a statement from him. He said he would look into it.

The Tribunal asked what he had found on Bible Gateway. He said he found a Bible passage, Matthew 5:38-40, about turning your cheek if someone hits you. The Tribunal asked if there was anything else in that passage. He said it was about non-violence. The Tribunal asked if there were other examples given in that passage. He said it was about forgiving your enemies and that an example of that was Jesus dying on the cross to save people. The Tribunal said that this was the passage that he claimed had introduced him to Christianity and asked if the verse had given an example in addition to turning the other cheek. He said it was about forgiveness and that Jesus talked about this in the Sermon on the Mount. The Tribunal said there was another example given in that passage. He said this was the highlighted bit and he could not remember the rest of it.
The Tribunal asked if this was in about April 2017. He said that was right. The Tribunal asked why, then, the minister from [Church 1] had written that he started attending in February 2017. He said he had some problems around this time and could not recall the exact date. The Tribunal indicated that his application depended on his satisfying the Tribunal that his claims were genuine and that he should take care to ensure that what he said was accurate. He said he had some issues at this time including a car accident. The Tribunal asked if he had mentioned these before. He said he did not think they were relevant. The Tribunal suggested that, at paragraphs 15 to 18 of his statutory declaration of 14 August 2023, he had given explanations for the delay in his application and for changing his courses. The Tribunal suggested that it would expect that he would have mentioned a car accident at around the same time. He said he also had problems in his workplace. The Tribunal suggested that he had not mentioned this in his statement either. He said he was not really sure how to present his case. The Tribunal noted that he had representation and the statement was dated the day before the hearing.
The Tribunal asked if he suffered any injuries as a result of the car accident. He said there were no serious injuries. The Tribunal asked if he was still saying the accident was the reason he could not recall when he converted to Christianity. He said, at the time he was under a lot of stress because he had no insurance and was financially stressed because he had to pay for repairs to both vehicles. He said he also had workplace issues and a range of other difficulties.
The Tribunal asked how he came to attend [Church 1]. He said that he had previously gone to other churches and was looking for the best place to learn about Christianity. He said an acquaintance by the name of [Mr I] had taken him. The Tribunal asked why there was no statement from him. He said he not realised he should obtain a statement. The Tribunal took him to the letter from [Pastor C] of [Church 1] (provided to the Department) that stated he had been attending the church since early February 2017 and put it to him that this date was incorrect. He said it must be correct, and that the church had a registry which would have recorded this.
The Tribunal asked which church he was attending when he decided to adopt Christianity. He said it was a church on the Northside but he could remember the name because he attended it only twice. He said he could not keep going there because of the issues he had mentioned earlier.
The Tribunal suggested that, apart from [Reverend A] whom he had only known for a very short period, there was nothing more than the [Church 1] letter to attest to his conversion. The Tribunal suggested that one letter from 2017 and the evidence of [Reverend A], who had known him from May 2023, was very sparse support for his claims to have been a practising Christian over a period of six years. He said he thought that this would be enough. He said he had attended bible studies and there were photographs. The Tribunal indicated that it photographs of his 2023 baptism, but that was all. He reiterated that he thought this would be enough.
The Tribunal asked which church or churches he had attended before going to the [Suburb 1 Church 2] in 2023. He said, after [Church 1], he attended the [Church 3] in [Suburb 2]. The Tribunal asked how long he had attended these churches. He said he went to [Church 1] for about seven months. The Tribunal asked if this was from about February to September 2017. He said he thought that was right. The Tribunal suggested that it was shorter because he was back in Sri Lanka for some of this period. He said that was right, but he was in touch with the Church while he was there. The Tribunal asked if he had evidence of that. He said that he did, but that he had not realised it would be relevant. The Tribunal suggested that he was asking the Tribunal chiefly to rely on a photograph of a baptism in 2023. He said that his lawyer told him that a baptism photograph would be helpful. The Tribunal asked if he got baptised because his lawyer had told him that his evidence was inadequate. He said that his lawyer had asked him if he had been baptised and he had said that he had, and had sent her the photograph. The Tribunal asked why there was so little evidence of his Christianity until May 2023. He said that he had only a limited time to find evidence. The Tribunal asked if he had thought the best thing to do with his limited time was to get baptised. He said that he had forgotten to mention the other evidence to his lawyer because he was stressed. In those circumstances, he had neglected to mention some evidence and had thought other material would be irrelevant.
The Tribunal asked if the applicant was aware that there is at least one church in Brisbane that offers services in the Sinhala language. He said he was not. The Tribunal asked if it was the case that he was not really interested in Christianity, but rather in material to support a protection visa application. He denied this and said that he wanted to attend the same church as his friends. He said that, if he wanted Sinhala language services, he could access those online. The Tribunal noted that there was no material from these friends.
The Tribunal asked when he started attending the [Suburb 1 Church 2]. He said it was around the beginning of 2023. The Tribunal asked if it was earlier than May 2023. He said it was. The Tribunal asked which church he attended before that. He said he attended the [Church 3] at [Suburb 2], for about four years. He said the ministers was [Pastor J] and [Pastor F]. The Tribunal asked if this was about 2018 to 2022. He said he could not remember exactly. The Tribunal asked what specifically the [Church 3] believe. He said they believe [Church teaching], that God and Jesus and the Holy Spirit are the same, and do not worship Mary. The Tribunal asked if there is a person whose writings they especially respect. He said they respect the Old Testament and New Testament of the Bible. The Tribunal asked what they believe about prophecy. He said there were prophecies in the Old Testament. The Tribunal asked where he went before the [Church 3]. He said it was [Church 1].
The Tribunal suggested that [Church 1] and the [Church 3] in [Suburb 2] are located quite close to each other. He said that was right. The Tribunal asked why he then decided to attend a church in [Suburb 1]. He said he was then living in [Suburb 3], so the [Suburb 1] church was conveniently located and he also liked the members. The Tribunal asked if he had been baptised in any of his earlier churches. He said that to be baptised, he needed to learn about the religion. He said this started in [Church 1] and continued at the [Church 3]. Both churches had told him that he needed to learn more in order to be baptised. The Tribunal suggested that its information was that [Church 1] required very little preparation for baptism. He said that it had been mentioned but they had not given him a specific date. The Tribunal suggested that his evidence was that he had been at [Church 1] for about a year. He said they had told him baptism was important but never scheduled a date. The Tribunal asked what the situation had been with the [Church 3]. He said it was the same thing, whereas the [Suburb 1 Church 2] had suggested it straight away.
The Tribunal suggested that the only photographic evidence of his religious observance was the baptism photographs. He accepted that this was all he had produced. The Tribunal asked if he had ever observed any Christian celebrations or holy days. He said that he had, and that he was sure there were photographs. The Tribunal asked why they had not been produced. He said he had not thought they would be useful. The Tribunal asked if he celebrated Christmas and Easter. He said that he did. The Tribunal noted there was no evidence of that, or from any members of the congregations of any church he had claimed to attend. He undertook to provide such evidence.
The Tribunal asked why there was no evidence of any participation in church social or administrative activities. He said that he had evidence but did not realise it was relevant. The Tribunal asked if he was unaware that the delegate had found that the evidence he had produced was inadequate. He said he thought the material he had submitted was adequate. The Tribunal suggested that he knew this was not the case because the delegate had found that the single letter from [Church 1] was inadequate. He said he did not know this.
The Tribunal took the applicant to the document he had sent the Tribunal on 27 February 2023, and asked how he had chosen the Bible verses he had quoted. He said he could not remember.
The Tribunal heard from [Reverend A]. It asked him when the applicant joined his church. He said he joined in April 2023 and was baptised on 7 May 2023. He was formally made a communicant member of the church on a later date. The Tribunal asked if he was aware what other churches the applicant had attended. He said he was not. The Tribunal asked about the circumstances in which he came to be baptised. The Tribunal He said that he had come to the church as someone with a Buddhist background who was seeking to know more about the Christian faith. He said that, on about the second Sunday, the applicant had come to him seeking to make an expression of conscience having heard the Gospel preached a couple of times. He said he may have had some earlier contact with Christianity but could not be sure of that. He said that he suggested the applicant do a series of about 5 classes to prepare for baptism. He said he had spoken to him during these classes and felt he was ready for baptism. He said he had been quite diligent in attending church and prayer meetings.
The Tribunal asked [Reverend A] if he knew who had introduced him to the church. He said he did not know but thought the applicant had indicated to him that he had been seeking a church and that it was possible that he had attended another church or churches.
The Tribunal asked [Reverend A] how recently the applicant had been a Buddhist. He said that he understood that he had been a Buddhist his entire life and grown up in a predominantly Buddhist village in Sri Lanka. He said his impression was that the applicant was still a Buddhist when he came to his church, although he had been previously exposed to the Gospel in some way, which may have been a cultural thing from being in Australia as long as he had. He said his impression was that he was sincere in his faith.
The Tribunal showed the baptism certificate to [Reverend A]. He said it was not a baptism certificate but was a coversheet for the ceremony. He said the baptism certificate carried the seal of the church and was signed and that the proper certificate definitely existed.
The Tribunal put to the applicant that the evidence of [Reverend A] was that he had only been at the church since April 2023. He said that was correct. The Tribunal reminded him that his own evidence was that he had been going there since the beginning of 2023. He said that he did not always calculate the dates. The Tribunal said that he had been attending this church for four months, not eight months, and that it was important that he attempt to provide reliable information, so that the Tribunal did not form the impression he was exaggerating his claims. He said that the details were more important than the timing and that he had problems remembering dates. He said that he felt it had been about 8 months. He said he thought he might have memory problems because his of his issues. The Tribunal indicated that it would require medical or expert evidence on that. He said he would obtain such evidence.
The Tribunal took the applicant to paragraph 4 of his statement of 14 August 2023, in which he claimed to have also attended [another congregation of Church 2]. It asked why this church had not been mentioned in his oral evidence. He said he had been there a few times, but it was a long time ago. He said it was in [Suburb 4]. He said he could not say when that was because of his memory problems.
The Tribunal took the applicant to the documents from Sri Lanka he had produced, dated July and August 2017. The Tribunal asked if there were genuine documents. He said they were and the Tribunal could research them if it doubted them. The Tribunal indicated that it was inclined to doubt them. It said the first of these documents was a hospital record indicating that he had been admitted to hospital on about 16 July 2017: this document was entirely in English. He said the doctor must have known English. The Tribunal suggested that it had been created for the purposes of submission to Australian authorities rather than being a genuine hospital record. He said this suggestion was unjust.
The Tribunal suggested that the country information was that fraudulent documents were readily obtainable in Sri Lanka. The Tribunal indicated that it would also need to consider whether private criminal prosecutions, as contemplated by the court documents he produced, were permitted or usual in Sri Lanka. The Tribunal also took the applicant to a document described as an extract from the information book of a police station: this document is plainly a privately-commissioned translation yet it purports to bear an official police crest. He said this could be a mistake by the translator.
The Tribunal took the applicant back to the hospital record. It suggested that, in addition to the use of English appearing to be an anomaly, there was a notation at the bottom, “not to be taken away.” It did not purport to be a medical certificate or a report intended to be given to a patient. He said that doctors usually made reports in English. The Tribunal asked how he knew this. He said it was what he believed and asked what could be done if the Tribunal did not accept the document. The Tribunal suggested that the document indicated that he had been admitted to hospital and that he could request an official record from the hospital. He said he would do this. The Tribunal indicated that, in any event, it would need to consider the contents of the documents in detail before coming to a view.
The Tribunal took the applicant to the Magistrates Court summons of 27 September 2017, issued to his uncle. It asked if there had been any outcome in that proceeding. He said his uncle did not respond to the summons. The Tribunal asked if there was any advice from his lawyer or anyone else about the progress of the matter. He said if the Tribunal needed it, he could chase up a letter. The Tribunal asked how it came to pass that a private prosecution was commenced, rather than a police prosecution. He said this was the advice of his lawyer. The Tribunal asked if there was any correspondence from the lawyer in existence. He said he could find it. The Tribunal allowed three weeks for the submission of additional material, noting that this time should be sufficient because the applicant had indicated that he already had the bulk of this material on his laptop. It told the applicant that any extension of time he required would be considered if a timely request were to be made.
On 20 August 2023, the applicant sought an extension of time for the provision of certified translations. The Tribunal allowed an extension until 12 September 2023. On 7 September 2023, the applicant sought a further extension to 28 September 2023. The Tribunal allowed the requested extension. On 25 September 2029, the applicant sent an email to the Tribunal attaching two statements from himself, referred to below, and the additional material referred to in paragraph 28 above.
Assessment of claims and evidence, and findings
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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, they 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.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The applicant is a [Age]-year-old Sinhalese male. Other than his claims of his conversion to Christianity, its reception among his family and community, and the unwillingness of the police to protect him from them, he has made no claims to fear persecution by reason of his race, nationality, membership of a particular social group or political opinion.
The most recent country information report from the Department of Foreign Affairs and Trade states, in relation to religion in Sri Lanka:
Religion plays a significant role in daily life in Sri Lanka and strongly correlates with ethnicity: most Sinhalese are Buddhist and most Tamils are Hindu. A minority of each ethnicity is Christian. Muslims are considered a separate ethnic group as well as a religious group. Most Muslims speak Tamil.
The Constitution provides for freedom of religion, including the freedom to change religion. The Constitution also provides for freedom of public and private worship. However, Article 9 of the Constitution grants Buddhism a ‘foremost place’ and obligates the state to ‘protect and foster’ Buddhism while protecting the rights of religious minorities. In 2003, the Supreme Court ruled that the state was constitutionally required to protect only Buddhism. DFAT assesses that any attempt to remove Buddhism’s special status as part of constitutional reform is unlikely to succeed in the foreseeable future. Acts intended to insult religion are punishable by a fine and/or a maximum of one-year imprisonment. This is applicable to all religions, not just Buddhism. Attacking places of worship or religious objects is punishable with a fine and/or a maximum of two years’ imprisonment. This applies to all religions.
Sri Lanka recognises religious holidays for Buddhists, Hindus, Muslims and Christians. Prominent Buddhist, Hindu, Muslim and Christian leaders attend national functions, although most events include only Buddhist rituals. Religion is a compulsory subject in both public and private schools. Students are able to study their choice of Buddhist, Hindu, Muslim or Christian religious classes, depending on the availability of teachers. There are some Hindu and some Muslim public schools.
The Government adheres to a 2008 ministerial circular, introduced by the Ministry of Buddha Sasana, Religious, and Cultural Affairs (though later revoked, according to the US Department of State). According to local sources, the circular is used as the basis to restrict the construction of new places of worship by religious minorities. Local sources allege that police and government officials at the local level, who are predominantly Buddhist, are prejudiced against religious minorities and are not responsive to instances of religiously-motivated attacks against them.
According to local sources, the Rajapaksa Government maintains the support of its largely Buddhist Sinhalese base by engaging in religious polarisation, including by supporting extremist Buddhist groups.[3]
…
In 2020, Sri Lanka’s National Christian Evangelical Alliance of Sri Lanka (NCEASL) reported 50 ‘incidents of attacks on churches, intimidation of and violence against pastors and their congregations, and obstruction of worship services’ including groups led by Buddhist monks accosting evangelical Christians on their way to church or interrupting church services.[4]
…
DFAT assesses that, while laws or official policies generally do not discriminate on the basis of religion, adherents of religions other than Buddhism face a low to moderate risk of official discrimination from government authorities, which can affect their ability to build places of worship, seek recourse for religiously-motivated attacks, and practise their faith freely.[5]
[3] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka (21 December 2021), p 20
[4] Ibid
[5] Ibid
On Christianity specifically, DFAT reported:
About 7 per cent of Sri Lankans are Christian. Around 80 per cent of those are Roman Catholic. Other Christian denominations include Anglican, Assembly of God, Baptist, The Church of Jesus Christ of Latter-day Saints (Mormon), the Dutch Reformed Church, Jehovah’s Witnesses, Methodist and Pentecostal. Membership of evangelical Christian groups is small but growing. The Christian community encompasses both Sinhalese and Tamil ethnic groups.
In recent years, documented incidents of violence and intimidation against Christians have primarily involved intimidation (including physical and verbal threats against pastors and their congregations), disruption of worship services, demands for closure of churches and legal challenges. 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 not aware of reported incidents of violence or visible hostility against Christians perpetrated by Muslims.
According to sources from the local Christian community, Christians who file complaints on the basis of perceived breaches of their right to religious freedom are often victimised and blamed by law enforcement officials, and some complaints are not investigated further. In September 2020, Christians in a village were told they could not worship; their complaint was initially rejected by local police but later accepted. Of the incidents of violence and intimidation against Christians documented by a local NGO since 2015, nearly half involved state agents, either implicitly or explicitly, including police, village officers (grama niladhari) and Divisional Secretariats (a form of local government). Sources told DFAT that restrictions on Christians’ religious liberties were particularly pronounced in rural areas and that, as a result, Christians in these areas were increasingly apprehensive about being open about their faith.
DFAT assesses that Christians in Sri Lanka face a low risk of official discrimination. DFAT also assesses that evangelical Christians in Sri Lanka face a moderate risk of societal discrimination, and that Roman Catholics and other mainstream Christian denominations face a low risk of societal discrimination. The number of incidents targeting evangelical Christians has remained largely static over recent years and is highest in Buddhist-majority regions in the North Central, South and Western provinces. Aside from the 2019 Easter Sunday terrorist attacks, DFAT assesses that Christians face a low threat of violence from homegrown Islamic extremist groups, although this could change if such groups were to expand in membership and strengthen their international links.[6]
[6] Ibid, p 23
On the basis of the country information, the Tribunal considers it plausible that, should the applicant’s detailed claims be accepted, that there is some risk that he may be subjected to local (including family) discrimination and hostility on the basis of his religious conversion, and that, at least initially, local state protection may not be afforded him. This would not be sufficient on its own, however, to satisfy the refugee convention.
The applicant’s evidence comprises two main elements: that relating to his conversion to Christianity, and that relating to actual and threatened violence because of his conversion.
Conversion to Christianity
In respect of his conversion, the applicant’s claims in his protection visa application were extremely vague. However, among the material he supplied to the department was the letter from [Pastor C] of [Church 1], dated 27 December 2017. It says:
I am one of the Pastors at [Church 1, Suburb 5] and I have known [the applicant] since the early February 2017 when he started attending our Christian Church.
During that period of time, [the applicant] has been attending our church regularly and actively participates in the worship services. I have found him to be very genuine in his Christian faith. As a member of our congregation [the applicant] is involved in various groups and Bible studies and has become an integral part of our church family. His mother and family members are also Christian and we are assisting him with their Christian discipleship.
The delegate found his account of his discovery of Christianity and his conversion to be so vague and lacking in detail as to raise concerns that his claims had been fabricated. However, it is not clear whether all of the material listed in paragraph 26 had been presented or had been considered by the delegate because there is no reference to it in the decision. The applicant’s case in respect of his claimed conversion to Christianity would have been very considerably weakened if the delegate had not seen the letter from [Church 1] (as it would seem he had not, from the decision). It is, however, surprising that the applicant made no mention of the letter and could not name this church in his interview.
On 27 February 2023, the applicant wrote to the Tribunal:
I just want to express how I am grateful being a Christian and how it changed my life. As I said in my files I was a Buddhist back in Sri Lanka. So after I came to Australia I had to face some situations that I never faced before. So it got me anxiety and kind of feeling like mentally unstable. When those days I used to listen to Buddhist preachers every day (can’t remember a day I missed). Listening to those didn’t help me much. So I was searching is there any other religion or philosophy that would help me to overcome this situation better. So I read about Christianity and other religions like Islam as well. I chose Christianity over Islam because it’s very non-violent religion. When you see a lot of terrorism activities around most of them done by people who follow Islam in the extreme.
Matthew 5:39 — “but I say to you, do not resist the one who is evil, but anyone slaps you on the right cheek, turn to him the other also.”
Above Bible verse made me turn to Christianity more and study it further. Because I understood how peaceful this religion is. As I continuing my journey with the Holy Spirit I could realise I’m getting better with my bad situation and if there were any problems, I prayed to the God and ask his helps, in Buddhism there was no one to turn to like that. As a Christian I got a feeling like someone is always with me to save me. Those are the reasons I gave up practising Buddhism. I was following the god’s words.
Luke 6:38 — “give and it will be given to you, a good measure pressed down, shaken together and running over, will be poured into your lap for measure you use, it will be measured to you.”
According to that verse I was helping to people as I could. I participated lot of charities that Sri Lankan community led, and also I am donating my blood regularly to save people’s lives. I am also registered as a organ donor. I don’t expect anything for these kinds of acts from anyone. I just want to follow God’s words. I am going to church every weekend some weeks I do Bible study with the senior church members. So I can understand the Bible clearly because it’s bit hard to understand some verses once and alone. I know my church members are very happy about me because I am very enthusiastic to learn the Bible and pray.
Luke 11:28 — “but even more blessedness are all who hear the word of God and put it into practice.”
I don’t have words to say how much I am happy and blessed because of my relationship with the Holy Spirit. My final hope is to fulfil the God’s words before I am going to spend eternity life with God.
Matthew 28:19-20 — “therefore go and make disciples of all nations, baptising them in the name of the Father and of the son and of the Holy Spirit…”
I just want to show the truth to the people who are following falsity blindly. God bless you!
With his written submissions to the Tribunal, the applicant included the letter from the [Rev A], dated 7 June 2023 which reads, relevantly:
On Sunday, 7 May 2023, [the applicant] made a public declaration of his personal faith in Jesus Christ as Lord and Saviour at [Suburb 1 Church 2] in Brisbane.
As a Christian believer, in accordance with the New Testament scriptures, [the applicant] was baptised by total immersion in water, representing his identification with Jesus Christ in death, burial and resurrection. It also represented God’s forgiveness of sins and [the applicant]’s dedication to God to live and walk in newness of life forever…
The people of [Suburb 1 Church 2] warmly welcome [the applicant] as part of the church and local community. We recognise his fine character, leadership gifts and desire to continue to grow in the service of God and people …
On 11 August 2023, the applicant sent further submissions to the Tribunal. In relation to his claimed conversion to Christianity, he said:
My journey to Christianity was a deeply personal one. I was drawn to its teachings of compassion and love after reading about them. During my time in Australia, I had the opportunity to explore various books and online resources that help me better understand Christianity. I extensively read the Bible, focusing on the teachings of Jesus and the principles of the faith. I also attended different churches in Brisbane, where I listen to sermons and engaged in discussions with pastors and fellow believers. These interactions help me gain a deeper insight into Christian beliefs and practices. Additionally, I found online articles and videos that explain Christianity’s core tenets, which resonated with me and made me feel that this was the truth I was looking for. The more I learned, the more convinced I became Christianity was the path I wanted to follow. It was around mid-2017 that I underwent this conversion from Buddhism to Christianity, and I realised that Christianity held the truth I had been seeking. During that time, I attended churches like [Church 1] in [Suburb 5], [Church 3, Suburb 2], and [Church 2A]. The verses in Matthew 5:38-39 caught my attention and fuelled my desire to learn more about Christianity.
I have submitted my baptism certificate and a letter of reference from a pastor of my church. I previously submitted references from my previous churches to the Department of home affairs. Additionally, if you require more statements from my current fellow church members and past church members, I am able to provide those.
Converting to Christianity transformed my life in profound ways. It provided me with a sense of purpose, inner peace, and a supportive community. I found comfort in my face during difficult times and it gave me the strength to navigate challenges. This change has positively influenced my beliefs, values, and how I perceive the world around me.
The applicant’s statement of 14 August 2018 replicated these submissions.
With his post-hearing submissions of 25 September 2023, the applicant included a letter from [Pastor F] of the [Church 3, Suburb 2], dated 24 August 2023. That letter reads, relevantly:
I wholeheartedly recommend [the applicant], affectionately known as [Nickname], who actively contributed to our church family at [Church 3, Suburb 2] from January 2018 to March 2023.
Throughout his time with us, [Nickname] consistently demonstrated a deep commitment to his spiritual growth and a genuine desire to positively contribute to our church community. [The applicant] actively participated in various church activities, including volunteering and worship services, showcasing his dedication to living out the principles of our faith. [The applicant]’s interactions with fellow congregants were marked by kindness, empathy, and a collaborative spirit. His engagement in discussions and teamwork significantly enriched our community, fostering unity.
With these submissions, the applicant also included a bundle of photographs which showed him in attendance at one church service and at a number of social events that the Tribunal accepts were associated with a church or churches. Unfortunately, the photographs were not captioned so the Tribunal has been unable to gain any insight as to which church or churches these events were associated, or the period over which the photographs were taken. This is important because the Tribunal doubts the applicant’s evidence as to the time and depth of his involvement with the churches.
According to [Pastor C] of [Church 1], the applicant had been attending that church from about February 2017 (see paragraph 73). That letter was written in December 2017 and its phrasing suggests that the applicant’s membership was the church was continuing at the time. The applicant also produced a screenshot of a text message confirming that he was to read a short bible passage at a service in November 2017. According to the letter from [Pastor F] of the [Church 3], the applicant attended that church from January 2018 to March 2023. The applicant lodged his protection visa application on 15 January 2018, but made no mention to the Department of membership of the [Church 3] at any time up to the determination of the application by the delegate in April 2022.
The Tribunal also finds it curious that the applicant claimed to attended [Church 1] for a period of up to 10 months and the [Church 3] for about 6 years without undergoing baptism. It notes that adult baptism by immersion is usually conducted early in the introduction of a new member to the [Church 3]: “When a new believer makes a commitment to Jesus Christ, baptism is an ideal next step. The biblical practice of baptism is an outward demonstration of an inward commitment.”[7] The applicant’s explanation, that people mentioned it to him but nobody got around to organising it, is inconsistent with the publicly available descriptions of the ministries of both churches in which the importance of baptism is emphasised. In particular, that the applicant could have been an active member of the [Church 3] for five years without undergoing any formal declaration of his faith seems implausible and inconsistent with his claims. The fact that he apparently did not seek it may also provide an insight into his degree of commitment.
[7] [Church website about baptism URL]
The applicant’s baptism at the [Suburb 1 Church 2] on 7 May 2023 raises credibility issues that were discussed with him at the hearing (see paragraph 42). He told the Tribunal that he and his representative had discussed the evidence he would need and that he had been asked if he had a photograph of his baptism. The Tribunal notes that he appointed his current representative on 11 April 2023, joined the [Suburb 1 Church 2] at around the same time, and underwent his baptism within a month. It also notes the evidence of [Rev A] that he believed that the applicant had only passing or sporadic exposure to Christianity prior to his reception into the [Suburb 1 Church 2].

These facts are suggestive that the strongest evidence for his participation in a Christian community shortly precedes the hearing of this application.
The Tribunal has also considered the applicant’s claims that he was drawn to Christianity by the passage in Matthew 5:39 and cited it in his submission. The passage is well known, and is often cited with its surrounding verses, which expand on the injunction to “turn the other cheek”:
You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. ⁴And if anyone wants to sue you and take your shirt, hand over your coat as well. If anyone forces you to go one mile, go with them two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you.[8]
[8] Matt 5:38-42 (NIV)
The applicant, when asked about his choice of this verse as his impetus for his religious conversion, showed no familiarity with the surrounding verses. When asked how he had come to choose the other verses he had cited (see paragraph 75), he said he could not remember. His explanation for his decision to convert was otherwise very vaguely expressed and he advanced no evidence relating to his participation in the life of a Christian community other than in the most general terms. For example, he did not describe taking communion (which has distinctive characteristics and terminology in the [Church 3][9] and of which he must have been aware if he was a regular congregant for five years) and he did not refer to any of the organisational or volunteering assistance mentioned in general terms in [Pastor F]’s letter, beyond praying and bible study, and being motivated to donate blood and register as an organ donor. The Tribunal would expect a genuine convert to be much more forthcoming with information of that nature and, if the applicant’s evidence of his conversion to be accepted, a degree of enthusiasm in doing so.
[9] [Church website about communion URL]
The Tribunal is also concerned about the quality and the quantity of the evidence the applicant provided in support of his claimed membership of the church community. Despite his claims to have observed Christian holidays and to have friends and confidantes from the various congregations of which he claimed to have been part who could attest for him, and to have the relevant evidence, no such material was produced to the Tribunal.
The Tribunal does not expect that all those making claims on the basis of religion will have an encyclopaedic knowledge of the texts and doctrines of their claimed faith. However, it is reasonable to expect that a person who claims to have undergone an intimate conversion experience from a position of disinterest or antipathy to their native religion would have taken a more active interest in the tenets of their new faith than the applicant was able to demonstrate to the Tribunal. In saying this, the Tribunal does not expect any uniform standard of so-called ‘convert’s zeal’, but the Tribunal does consider the knowledge shown by the applicant to be inconsistent with the dedication to the faith he has claimed and to be more consistent with conducting some quite cursory research and attendance at some church services and events.
In assessing the applicant’s claims in this respect, the Tribunal has given careful consideration to the letters from [Pastors C and F]. The Tribunal does not doubt their sincerity but it also considers that, in their desire to assist the applicant, they contain glosses that may not have been made in contemplation of the nature of the matters in issue in this application. For example, [Pastor C] describes the applicant as being “involved in various groups and Bible studies” that were not mentioned or described by the applicant, and also states that “his mother and family members are also Christian,” when no family member other than his mother has been mentioned by the applicant and the fact that other family members are not Christian is a significant component of his claims. It is also notable that [Pastor C[has made no mention of any resistance or hostility back in Sri Lanka to the applicant’s Christianity when, on the applicant’s evidence, the attacks that form the other central component of his claims were carried out during the claimed currency of his membership of this church. It is surely to be expected that the applicant would have raised these matters with the church leadership or other members of the congregation and that these matters would have been of great interest to them.
The letter from [Pastor F] refers to “the authenticity of [the applicant’s] faith” but provides very little detail as to the nature and commitment of the applicant’s faith. It is expressed much more in terms of an employment-related character reference than an assessment of the applicant’s sincerity of conviction. It is possible that either the applicant or [Pastor F], or both, misconceived the nature of the letter required for this application. However, it is curious, given that the applicant’s membership of the [Church 3] comprised by far the greater part of his claimed participation in a faith community, that [Pastor F] and other members of the congregation were not asked to provide detailed evidence.
For these reasons, the Tribunal cannot accept the applicant’s account of his conversion to Christianity . While it accepts that he has attended each of the nominated churches at various times, it considers that the evidence he has presented tends heavily to a conclusion that it has been tailored to achieve the outcome he seeks in this application.
Violence and threats of violence against the applicant
In the statement dated 10 January 2018 accompanying his protection visa application, the applicant said:
After completion of [Number] years I flew for Australia for my higher education and made a formal conversion to Christianity (became a Christian) giving up the borders and I urged my mother too for the said conversion.
Since then my mother stopped both going to temple and giving monthly alms. In the passage of time my mother found it difficult to live in this area in which 100% Buddhism are living.
My family members who got angry with this, she has been repelled from the house. She complained over and again over the phone about the harassment she had to face for. As there were no one other than I to help her, she had been harassed severely. Then I advised her to make a complaint at the police. Though she had gone to [Location 1] police several times, she had had not any chance to make a complaint.
All those in this police station, which is situated in a difficult area being Buddhists, may be the reason for this. I could understand my mother has mentally collapsed very badly by the responses of police officers. When my mother went to the police station, the police officers had severely blamed saying “despite there is so truthful religion, you cow had believed a forgeful and wrongful religion. Therefore we can’t take down this complaint as we happen to go to hell according to our religion. You give up this foregful and wrongful religion. Hereafter you don’t come to make complaints regarding disputes arising about the religion. If you want to observe that religion you “bitch” also go to that country. Repellent of you by your family members are very reasonable.”
After that she had to face for many problems created by the villages, too. I was not disappointed by this and again advised my mother to go to the police station and make a complaint. But police officers had again blamed and repelled my mother saying “if you come again, we will lock you up.” She every day inquired over the phone about what she should do.
As I came here on student visa, I had nothing to do and I had no money to come back to Sri Lanka. Therefore I advise my mother to make a complaint again. Accordingly she had gone to the police station again. Then same as they did earlier, she had been scolded with very bad words and complaint had been written down. But they had not care about the complaint and no action has been taken in that regard.
After that police officers had come several days and forced my mother to withdraw the complaint. Although she had gone several times to get a duplicate of the complaint they had rejected it too.
Later due to severe harassment which my mother had to face, I earn some money and came back to Sri Lanka.
Then the person called [Mr B], assaulted me upon the words of our family members and commanded to remove from the house and the land.
At that time I made a complaint at the police and got the problem solved. But he who did not obey the decision given by the police, again assaulted me while I was going for a private matter with one of my friends. I was severely injured at that time and my friend admitted me to the hospital.
Then upon the summon made by the hospital to take a statement, the police officer threatened me to not think of Christianity and not to give up what is and they told that this case is joined with the land dispute which had prevailed earlier. Police arrested him and told him to not do harassment again. How ever he came drunk again my home and tried to kill me and broke some windows of the house. I went to the police again and made a complaint against him. While police was solving this matter he agreed to he will live with us peacefully never do bad things to us again. After a few days later he came to our house and threatened to us. So I filed a court case.
I had to do nothing in that regard and I returned to Australia as I had informed them that I report to school back. The case regarding the land dispute is still being heard. But I have to say very sadly is that my mother’s condition is getting worse and worse. Recently my mother called me over the phone and told me that person came to house and tried to kill her. When he couldn’t do that he broke the door and window glasses of the house. So she has informed it to the police officers but [Mr A] (who is guilty person of this scene) is threatening my mother continually. He was also yelling that I want to kill your son. I could know that from my mother [Errors in original].
In his statement of 14 August 2023, the applicant said:
I have received threatening text messages on my phone from individuals who mentioned by conversion to Christianity and warned me to stop practising at and I have provided evidence of these.
Local newspapers in Sri Lanka have published articles detailing incidents involving me and my family. These articles describe the threats and harassment we faced and specifically highlighted the religious aspects of the conflict. I submitted these articles as evidence to show that these issues were not purely private matters that were connected to my religious beliefs. Some of these incidents occurred in public. I can provide contact information for individuals who witnessed these incidents and can testify that the harassment was linked to my conversion to Christianity.
Although the local police initially did not take any action, I filed a formal complaint about the harassment incidents. Even though the police response was inadequate, I provided copies of these police report to demonstrate that I attempted to seek help through official channels and that the incidents were documented.
In one instance, I was physically assaulted and required medical attention. I provided medical records from the hospital where I receive treatment as evidence of the injuries I sustained during the attack.
During my interview with the Department last time, I could not recall the dates and times exactly because it was a very stressful situation for me and I was nervous. I remember that [Mr B] (my aunt’s husband) assaulted me on July 17, 2017, while I was travelling with a friend for a private matter. My friend admitted me to the hospital due to severe injuries, and I was discharged after two days. Even though the police arrested him, he continued harassing us. On August 2, after being discharged from the hospital following the physical assault, I returned home to my mother. It was a difficult time for both of us as we were dealing with my injuries and the trauma of the attack. However, our situation became even more dire when [Mr B], along with other relatives, came to our house.
During their visit, [Mr B] was visibly angry and aggressive. He demanded that my mother and I renounce Christianity and return to Buddhism. The atmosphere was tense, and it was clear that their intent was to intimidate and threaten us. This situation escalated when they forcefully broke the windows of our home with stones and sticks. This act of vandalism was a clear message that they were willing to resort to violence and to make us comply with their demands. Along with the window breaking, they verbally threatened us, stating that if we didn’t give up our Christian beliefs, we would face severe consequences, potentially even harm to our lives.
The applicant produced the following documents which he said attested to the violence and threats of violence to which he claimed to have been subjected because of his conversion to Christianity:
a.Translated police complaints dated 15 May 2017, 17 July 2017, and 26 December 2017;
b.A translated affidavit lodged at the Magistrate Court [Town] by the applicant dated 21 August 2017;
c.A translated extract from the information book of [Location 1] Police Station, dated 16 July 2017;
d.A bundle of certified translations of police complaints;
e.A translated plaint and summons in the Magistrate Court of [Town] dated 21 August 2017;
f.Translations of two newspaper articles, dated 18 and 19 July 2017; and
g.Translated text messages between the applicant and an undisclosed person from Sri Lanka.
He also produced a number of media articles in support of his claims that Christians are subjected to persecution and ill-treatment by Buddhists in Sri Lanka.
The copies of the police acknowledgement of complaint forms provided to the Tribunal on 25 September 2023 are superior in quality to those produced to the Department. To the Tribunal, the applicant produced forms dated 17 July 2017, 3 August 2017 and 26 December 2017, which were accompanied by NAATI certified translations. They purport to record, respectively, an assault, threats to kill, and verbal abuse and harassment. The applicant is the complainant in the matters of 17 July and 3 August 2017. The applicant’s mother is the complainant in the matter of 26 December 2017, which was some four months after the applicant returned to Australia. There was a further complaint form on the Department file, provided only in translation, dated 15 May 2017 (i.e., before the applicant had returned to Sri Lanka) in which the nature of the complaint is given as “death threats for observing Christian religion.” Because the original has never been produced, the Tribunal gives this document no weight.
The extract from the information book of [Location 1] Police Station, dated 16 July 2017, reads:
With reference to an attack bearing MCR 687 in terms of TM 259 on 16/7/2017 at 10.00 am in hospital, [Location 1]
[The applicant]. Male. [Age] years. Sinhalese. Buddhism. Unmarried. Custodian [Ms K] (Mother). Occupation – Student. Residence – [Location 2], [Town] …
I am residing in above address. My father has died. My mother works at [Location 2] [workplace] as [an occupation]. I have neither brothers or sisters. I have been studying in the field of [subject] in Australia. [In] 07/2017 I came back to Sri Lanka on my vacation. I am going back to Australia on next 15. Yesterday I was at home and went to meet one of my friends residing in [Location 3], with one of my another friend [Mr L], in his motorbike. Time may be about 9.00 pm. On our way we met [Mr B], husband of my mother’s younger sister. At that time I asked him about the land in question in friendly manner. But he blamed me with filthy words. He said “that the land is owned by me. You bloody rascal and your mother should leave it.” At that time I also blamed him. When I started blaming back to him, he hit me and pushed into jungle nearby. I fall down and injured elbow of my right hand. I felt a severe pain in my body. Therefore I came to hospital with my friend [Mr L] (Witness). Doctor who checked me detained me at the hospital. My uncle (respondent) is living in [Location 4] area. Address is not known. As I was treated at the hospital, I am OK now. I request the police, advice be given to my uncle for not doing such bad work again. That’s all what I have to say. Read and explained. Accepted to be correct and signed…[Errors in original]
The applicant tendered two photocopies, said to be reports of this incident in the local newspapers, with translations into English. The first of these, said to be dated 18 July 2017, is as follows:
Assault by relations due to change of religion
it is reported that a person who had gone abroad and came back to Sri Lanka was assaulted by his relations due to changing the religion. The person who was assaulted had gone abroad for his higher education. There he as well as his mother had observed Christianity leaving Buddhism. This has caused this attack. The victimized is 20 years old and a resident of [Town] area. It is reported that here before too the victimizers home was damaged by the said gang. By this time the victimised had been admitted to [Location 1] Divisional Hospital and is having residential treatments here before. The police says that the main suspect of this incident has been imprisoned here before due to a murder done by him. But law had not resolve this problem so far and he expect justice at least this instance [Errors in original].
The second report, said to be dated 19 July 2017, reads:
Severe attack to a youth, who came back from abroad by his relations
it is reported from [Town] that youth of 20 years was attached due to leaving Buddhism and observing Christianity. This youth had gone abroad for his higher education and came back to see his mother. Leaving Buddhism and observing Christianity has caused this attack.
By this time he is being residentially treated by [Location 1] Hospital. Here before also the said attackers had damaged his house and threated for his mother to death.
Police says that one of the attackers had been imprisoned due to connected with a murder case and released under forgiven by President on independence day [Errors in original].
The applicant submitted a document said to be a plaint and summons against [Mr B], filed in the Magistrates Court of [Town] on 21 August 2017. The plaint reads:
Above mentioned petitioner says that he is permanently residing in above address with his mother.
Petitioner further says that his father died when he was in service at Army due to a terrorist attack and the petitioner was [Age] when the incident took place.
After the father’s death, the petitioner’s mother had looked after him and given education with so many difficulties and he had obtained credit pass for the subject of [subject 2] in GCE(O/L) Examination.
At that time the petitioner’s mother [Ms K] had resided with him at above address in her mother’s home.
When they were residing in land owned by petitioner’s mother’s parents in above address the husband of petitioner’s mother’s younger sister, [Mr B] and his mother had quarrelled with petitioner’s mother continuously. Petitioner says that, he has right for the ownership of said land as he is the only child for his mother. Therefore the said respondent had been threatening for death to him and his mother.
Due to these threats the petitioner’s mother has sent him to Australia for further studies, even though it was a difficult task for her.
Further he says that, even after he had gone to Australia, the respondent had harassed his mother continuously. He had come to know about that through his mother.
As the petitioner had been studying in Australia he could only came to visit her mother on last [Day] of July during his vacation given by the university.
After he returned to Sri Lanka, said [Mr B] has come to the petitioner’s house and threatened him and his mother several times asking them to leave the home.
Accordingly when the petitioner was going towards “[Location 3]” with one of his friends on 17/7/2017, again the respondent had threatened the petitioner blaming with filthy words.
Further he says that the respondent assaulted the petitioner and pushed him away to a nearby jungle.
At that moment my friend [Mr L] admitted me to the [Location 1] hospital to treat for the injuries occurred.
He says that when he was in the hospital on 16.07.2017, another complaint has been made against the respondent by him, for assaulting to an officer came from [Location 1] Police Station by the respondent.
The petitioner submits that complaint marking as “P.01”.
After the above complaint was examined at the [Location 1] Police Station the respondent has agreed not to harass the petitioner again.
But the respondent breaching the trust, had again arrived at the home when the petitioner and his mother was residing and made murderous threatened.
As the threatens made by the respondent were not over, the petitioner again made a complaint against him on 03.08.2017 at [Location 1] Police Station. The complaint was noted in Parah.28 of page 143 of CIB book 11. The receipt issued by the police when the complaint was made has been submitted marking as “P.02”.
The petitioner says that he makes this complaint against [Mr B] …
Further he says that said [Mr B] has committed an offence under Sec.343 under Sec.314 of Ceylon Penal Code against the petitioner… [Errors in original].

100. The hospital record consists of handwritten notations in English on a pre-printed form. Confusingly, it records DOA (presumably date of admission) as 19 July 2017 and DOD (date of discharge) as 16 July 2017. Against the particulars of the complaint or injury, it records:
Assaulted by a known person (relation) to head with arm … No external bleeding; Multiple abrasions R/UL.

In the margin is a rough sketch of the lower arm with the locations of abrasions noted and the notation “R/UL [right upper limb] multiple abrasions”. There is no indication of where a head injury, if any, might have been suffered. On the following sheet, so far as is legible, the patient is noted as “Consiouss, afebrile … not dyspnoic” [sic].
101. The hospital records are by no means entirely satisfactory, recording contradictory accounts of the applicant’s injuries with curious inconsistencies in the spelling and the recording of the dates of admission and discharge. It records the administration of Omeprazole and Famotidine, both indicated for gastric reflux and peptic ulcer disease. The only other medication administered was PCM, likely paracetamol. The Tribunal, however, makes allowances for the quality of medical care, record-keeping and language skills in a regional Sri Lankan hospital and, with reservations, accepts that this document is probably genuine. Contrary to the applicant’s claims, it does not record any serious injuries sustained in the alleged assault. The Tribunal accepts that the applicant suffered abrasions to his right arm. There is no indication that any substantial medical intervention was required.
102. The Tribunal makes the following observations with respect to the material submitted by the applicant:
·Contrary to the applicant’s statement that the assault occurred on 17 July 2017, all of the documentary material refers to incident occurring on 15 July 2017;
·The police report identifies him as a Buddhist;
·The newspaper reports nominate the motivation for the attack as the applicant’s conversion from Buddhism to Christianity, while the detailed police report and the plaint say that the attack was related to a land dispute; and
·The newspaper reports describe attacks on the applicant’s mother’s home, causing damage. According to the applicant’s statement, this incident occurred after his discharge from hospital, on about 2 August 2017.

103. As the Tribunal noted to the applicant at the hearing, the translations of the newspaper reports do not cite the publications from which they are said to be drawn and there is no means to verify them. The photocopy of the report said to have been published on 19 July 2017 is a partial copy of a page so that, even were a certified translation to be sought, there is no way to verify the publication or the date.
104. In circumstances where the newspaper reports contain apparently anachronistic details and their provenance cannot be established with any confidence, the Tribunal gives them no weight. Because these are the only roughly contemporaneous documents that contain any mention of religion is the motivation for an attack on the applicant, the Tribunal is left with material that provides a consistent alternative explanation. This material includes the applicant’s own detailed allegations in the plaint and the complaint to the police.
105. The applicant claimed in his statement of 10 January 2018 that the local police deterred him from naming his change of religion as the motivation for the assaults and other incidents and convinced him to allege that they motivated by the land dispute. However, against this the Tribunal must weigh the detail contained in his own plaint, to which he must have expected that a defence may have been filed. If the motive for the assault was truly religious and unrelated to any land dispute, and this arose in the proceeding, the credibility of his claim would be destroyed. In this respect, the Tribunal notes that the applicant has not submitted any material relating to the progress or disposition of the proceedings, or of any other advice from his lawyer, despite claiming that such material was available. In these circumstances, the Tribunal prefers the version of events he has filed with the Court.
106. Finally, the Tribunal has considered the screenshots of the text messages submitted by the applicant. These messages, sent anonymously from different numbers on 9 October 2021, 23 March 2022, and 12 April 2023, purport to the threaten the applicant with harm if he returns to Sri Lanka. The applicant claims that the threats relate to his religious conversion as shown by the message on 9 October 2021, “You have betrayed us. If you come back to Sri Lanka, you will have to suffer a lot”, and the message on 12 April 2023, “Can you remember that you promised us to robe at a temple in Sri Lanka. So, come back and keep your promise. If not, you don’t come here forever. If you return to Sri Lanka, it is you end, you see.”
107. As the Tribunal indicated at the hearing, there is no way to establish that the text messages, in the form in which they were submitted, are authentic. The applicant did not submit the relevant device for authentication. He did not explain how or in what circumstances his number was known to the alleged senders or why, some 5 to 7 years after he had last been in Sri Lanka, he should start receiving them and at such lengthy intervals. Because an exchange of this nature is very easily falsified, without some means to verify this material, the Tribunal gives the material no weight.
108. The applicant at the hearing referred to his uncle as having been previously convicted of murder, and also sought to rely on the newspaper reports to the effect that, either by reason of Presidential intervention, or in some other way, he was spared imprisonment. He claimed that, because of his uncle’s propensity for violence and his underworld connections, he would be attacked wherever he was in Sri Lanka. There was no material produced to the Tribunal to support such a claim and there is no basis upon which the Tribunal can accept it.
109. After considering all of the evidence before it, the Tribunal does not accept that the incidents of 15 July 2017 and 2 August 2017, or either of them, were motivated by the applicant’s conversion to Christianity or that of his mother.
Other credibility issues
110. The applicant arrived in Australia [in] September 2016 and claims to have converted to Christianity some time between February and April 2017. He has claimed that he convinced his mother to convert at some time prior to May 2017, at about which time he claimed that she started being harassed by their relatives. Despite the claimed incidents in Sri Lanka and his return to Australia on 29 August 2017, he did not apply for a protection visa until 15 January 2018.
111. A delay in seeking protection can support an adverse credibility finding as well as finding that the applicants fear is not well-founded[10]. In Subramaniam v MIMA[11], the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making protection visa application by itself is not conclusive, it reasonably remains an indication in the applicant’s case that claimed fear of harm in this regard is not genuine.
[10] See Zhang v RRT and Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[11] [1998] FCA 305.
112. The applicant’s explanation for the delay is given in his statement of 14 August 2023:
Upon returning to Australia in August 2017, I was deeply affected by the threats and violence I had received in Sri Lanka. The emotional and physical toll of those incidents require time for recovery. Additionally, financial constraints due to my student visas work restrictions made it challenging to seek legal advice and gather the necessary evidence for a strong protection visa application.
During this period, I focused on my well-being and sought medical attention, and tried to find ways to address my financial limitations. I understood the importance of submitting a thorough and well documented application to substantiate my claims. I had to collect all the necessary evidence and translate them, it took me some time. All these things led to the delay in submitting my protection visa application, but I’m prepared to provide evidence of medical records, financial constraints, legal consultations, and expert opinions to support my explanation if that is required.

113. Having seen the material submitted by the applicant in support of his protection visa application, it appears that some effort went into collecting the relevant documents and having them translated. The Tribunal also accepts that the applicant experienced a degree of financial stress at this time related to his employment position and having been involved in a car accident in an uninsured vehicle. The Tribunal notes further that he was aged only [Age] at the time and that his English-language skills were plainly quite limited. The Tribunal therefore does not draw any adverse inference from his delay in lodging his protection visa application.
114. On 25 September 2023, the applicant asked the Tribunal to take into account that his mental health conditions may have affected his powers of recall and his demeanour at the hearing:
I would like to humbly request your understanding regarding some challenges I encountered during the hearing process. It is important to acknowledge that my mental health condition, which has been substantiated by the provided evidence, has significantly affected my memory and my ability to accurately recall specific dates and times. I deeply regret any inaccuracies in my responses.
Furthermore, it is essential to note that my mental health condition has made me more sensitive to the tone and manner of questioning. Regrettably, I perceive some of the questions to be delivered in a manner that felt confrontational, which only added to my anxiety and hindered my ability to respond coherently.
I politely request that the authorities take into consideration the documented evidence of my mental health struggles when assessing the accuracy of my responses during the hearing. It has always been my sincere intention to cooperate fully, and I deeply apologise for any shortcomings. Understanding the impact of my mental health condition is vital in comprehending any inconsistencies or challenges I may have encountered during the process.

115. In support of these submissions, the applicant tendered:
·A photograph of a medication packet: 15 Serepax 15mg, dispensed 26 April 2023;
·A photograph of a medication packet: 30 Mirtazapine 15mg, dispensed 26 April 2023;
·Screenshot of a text message regarding a psychological consultation, dated 29 June 2023;
·Letter from [Mr D], clinical psychologist, to [Dr E], dated 29 June 2023;
·Hospital prescription for 30 Mirtazapine 15mg, dated 18 September 2023;
·GP mental health care plan, dated 24 April 2023;
·Psychological referral by [Dr E], dated 24 April 2023;
·Letter from [Mr F], psychologist, Sri Lanka National Association of Counsellors, dated 26 August 2023.

116. The applicant has submitted that his mental health condition is long-standing, and that he has been receiving counselling since 19 June 2017 (see further below). The only evidence of the long-standing nature of his condition is the letter from [Mr F], the other material all having been generated since April 2023. The Tribunal notes that the letter from [Mr F] is on the letterhead of the [Association], which is a professional association rather than a psychologists’ practice. Further, the only person by the name of [Mr F] associated with the [Association] whom the Tribunal has been able to locate is its current and [number]-term [official position][12]. The Tribunal considers it very strange that [Mr F] would not mention his [official position] of the Association, fail to include his degrees and professional qualifications, and would fail to capitalise his name in his signature block. In the circumstances, the Tribunal is not prepared to give this letter any weight.
[12] [Mr F’s page on Association website]
117. The Tribunal does accept that the applicant has sought professional assistance for a mental health condition since April 2023. There is nothing in the material he submitted, including in the report of [Mr D], that suggests a long-standing condition. [Dr E]’s referral letter of 24 April 2023 lists no history of any mental health condition, and no prescriptions for medication. His mental health care plan of the same date records a prescription for Mirtazapine (an antidepressant), but the material presented suggests that it was first prescribed on that date. The only other record of medication are the two photographs of the packets for depression and anxiety medication and the hospital prescription. The Tribunal notes that no repeats were prescribed.
118. In all the circumstances, the Tribunal is prepared to make limited allowances for the applicant’s demeanour and powers of recall at the hearing but, in view of its findings above, does not consider that such allowances affect its assessment of the evidence to any meaningful degree.
119. By reason of its findings in paragraphs 91, 108 and 109 above, the Tribunal has been unable to accept the applicant’s claims of his conversion to Christianity, to have been assaulted and subjected to other attacks by reason of his conversion, or to have any genuine reason to fear his uncle in all (or any) parts of Sri Lanka.
120. The Tribunal has considered whether, should it be mistaken about the applicant’s conversion to Christianity, it would be reasonably practicable for the applicant to relocate within Sri Lanka.
121. In assessing this issue, the Tribunal has taken into account the country information about Christians in Sri Lanka quoted at paragraph 69 above. It also accepts the material submitted by the applicant that his hometown of [Town] is (or effectively is) 100% Buddhist and that his home region is very predominantly Buddhist.
122. The most recent DFAT country information report on Sri Lanka states, in relation to internal relocation:
The Constitution provides for freedom of movement for all Sri Lankan citizens, and no official restrictions apply to internal relocation. Access to government services through the local village level office (grama niladhari office) is available to Sri Lankans who relocate; a person intending to relocate to another district only has to register himself/herself with the grama niladhari office and in the house-holders list, and obtain a police clearance.
In practice, relocation can be difficult. An absence of family connections or a lack of financial resources can limit internal relocation options. An absence of language skills can act as an additional barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some part of the country. Continued military occupation of private land, difficulties establishing title to land, and uncleared land mines or unexploded ordnance also complicate internal relocation, particularly in the north.[13]
[13] Department of Foreign Affairs and Trade, op cit, p 46

123. The Tribunal notes and accepts that the applicant would have a strong preference to live close to his mother should he return to Sri Lanka. He does not have other close relations. However, there is no evidence that the absence of extended family networks would be any impediment to relocation. He is a native Sinhala speaker and also now has competence in the English language. He does not face the impediments to internal relocation that might apply to, for example, a monolingual Tamil. The Tribunal, having not accepted that his uncle has a nationwide reach, or that there is any reason to fear the existence of an extensive criminal underground with which the uncle might be associated, find no reason to accept that there is any impediment to the applicant relocating to the place of his choosing in Sri Lanka should he genuinely fear discrimination or persecution by reason of his religion. There is no other evidence to suggest that relocation is in any way impracticable.
124. For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Cumulative claims
125. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his religion or for any other reason if he returns to Sri Lanka now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Sri Lanka. Accordingly, the Tribunal finds he does not satisfy the criterion in s 36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
126. The Tribunal has considered the applicants’ claims under complementary protection.
127. In his post-hearing submissions, the applicant told the Tribunal:
In addition to the concerns related to my personal safety and security, I would like to draw attention to the ongoing mental health challenges I have faced for an extended period. Despite my sincere efforts to seek treatment and therapy within Sri Lanka, the results have been less than satisfactory. I have undertaken numerous treatments and therapies in an attempt to manage my mental health condition, with limited success.
Specifically, I engaged in online counselling sessions with a Sri Lankan psychologist over the course of several years. Regrettably these sessions did not yield significant improvement in my mental health condition, as evidenced by my ongoing struggles and the limited positive outcomes from these treatments.
Furthermore, it is essential to highlight that the mental health support infrastructure in Sri Lanka is inadequate and insufficiently equipped to address the needs of individuals dealing with mental illness. I have attached compelling evidence to support this assertion, including documented proof of the dearth of mental health resources and the challenges faced by individuals seeking mental health support in Sri Lanka. Given the limited progress I experience with treatment in Sri Lanka and the palpable lack of robust mental health support within the country, I made the difficult decision to seek treatment abroad. Here, in my current location, I have been receiving counselling and mental health support services from beyond blue, an organisation renowned for its dedication to mental health advocacy and care. Importantly, the interest treatments and support I have received here have shown significantly more positive results compared to the treatment I received in Sri Lanka.
…
Additionally, I have secured a referral from a general practitioner (GP), prescriptions for necessary medications, and letters from licensed psychologists, all of which collectively substantiate the severity of my mental health condition and the legitimacy of my ongoing treatment requirements.
It is my sincere belief that continuing to receive treatment and support from my current location is pivotal to my ongoing recovery and overall well-being. The community group here, dedicated to assisting individuals during their struggles with mental illness, has played an indispensable role in my journey towards recovery.

128. The most recent DFAT country information report on Sri Lanka states, in relation to healthcare:
Sri Lanka inherited a well-developed health care system at independence. The health care system has a long record of strong performance, including in maternal and child health and infectious disease control. The public health system offers universal free health care; however, regional disparities exist in the quality of care and facilities, particularly between urban and rural areas. Health outcomes are lower in the north and east. According to the World Health Organisation (WHO), the health system provides access to all ‘required medicines’ prescribed in the state system in Sri Lanka free of charge. However, the WHO also notes that the overall system ‘has not evolved and transformed appropriately to meet the changing demands of the demographic and epidemiological transitions.’ It notes that 26 per cent of out-of-pocket expenses for patients in the health system are for medicines. A local source reported that this leaves considerable expense for medicines acquired privately.[14]

129. The Tribunal has also given consideration to country information as to the impact of the 2022 economic and political crisis in Sri Lanka on health care:
There are reports of shortages and inconsistent supply of medicines and medical supplies; however, in June 2023 the government was able to cut the price of some essential medicines, after large price rises in 2022, by 16 per cent due to a rise in the value of the Sri Lankan rupee[15].
[14] Ibid, p 11
[15] Department of Home Affairs, Country of Origin Information Services Section, Situational Update Sri Lanka (27 July 2023), p 3

130. For the reasons given in paragraphs 116 and 117 above, the Tribunal does not accept that the applicant has a long-standing mental health condition, and there is very limited evidence that he is reliant on medication for any such condition. As to the availability of mental health services, the applicant’s evidence seems to be that he had no trouble locating and maintaining counselling in Sri Lanka, although the Tribunal ultimately gave that evidence no weight. On the basis of the material before it, the Tribunal cannot be satisfied that the applicant’s return to Sri Lanka would deprive him of access to health care such that it may seriously affect his welfare or restrict his capacity to subsist.
131. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Sri Lanka now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
132. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s 5J of the Act and therefore he is not a refugee within the meaning of s 5H of the Act.
Conclusion: Complementary Protection
133. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not 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 that he will suffer significant harm.
Overall conclusion:
134. 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 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

137. The Tribunal affirms the decision not to grant the applicant a protection visa.
James Lambie
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4287

15 March 2024

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