1505502 (Refugee)

[2017] AATA 800

1505502 (Refugee) [2017] AATA 800 (31 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505502

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Giles Short

DATE:31 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 31 March 2017 at 6:32pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Social group – Single women – Previous assault – Medical conditions – Employment prospects – Children’s education – No Convention nexus

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91, 499
Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

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

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. The applicants are a wife, her husband and their [children].  They are all citizens of Sri Lanka.  The applicant wife and husband and [one child] came to Australia as [temporary entrants] in September 2013 and [another child] was born here in [year].  The applicants belong to the Sinhalese ethnic group.  Only the applicant wife has made claims for protection.  Her husband and their [children] applied as members of her family unit.  The applicant wife has said that she comes from a village in [District 1] and that her husband was constantly overseas for work.  She has said that on the last occasion on which her husband left Sri Lanka in April 2011 the owner of [a certain] company [drove] them himself.  She has said that this was a man named [Mr A] who has political connections and is involved in underworld activities.  She has said that because he knew that her husband was overseas he came to her home and [assaulted] her.  She has said that her husband does not know about this but she fears that he will come to know if they return to Sri Lanka or that [Mr A] will come and trouble her again.  She and her husband also have health problems and she has said that they will not receive the treatment which they are receiving here if they return to Sri Lanka.

2. The applicants’ applications for protection visas were refused by a delegate of the Minister for Immigration and they have applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Do the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka?

   The applicant wife’s claims

3. In her application for a protection visa lodged in September 2013 the applicant wife said that she had completed [number] years of education in Sri Lanka and that she had been employed as [occupation] in Colombo until August 2008.  She said that she had lived at the same address in [location] in [District 1] from March 2005 until September 2013 when she and her husband and their [child] came to Australia as [temporary entrants].  She said that she had left Sri Lanka because she had feared for her life and her [child]’s life.  She said that she had been suffering constant harassment by thugs.  She said that she had gone to the authorities but nothing had been done.  Her husband and their [child] applied as members of her family unit.  As referred to above, their [other child] was born here in [year] and was added to the application.

4. In a statement accompanying her application the applicant wife said that her husband had been constantly overseas for work purposes.  She said that she had ceased work in August 2008 so that she could look after her [child].  She said that the last time her husband had come to Sri Lanka had been two years previously and that they [went by] car as usual when he had been leaving for the airport.  She said that the car had been driven by the owner of [a] company, [Mr A], who she said she had known was wealthy and involved in many underworld activities as a close relative of [an official], [Mr B].  She said that [Mr B] unofficially controlled and managed a large number of thugs and criminal activity in the area.

5. The applicant wife said that after this [Mr A] and his friends had visited her home where she had lived with her parents on a number of occasions.  She said that she and her parents had gone to the police station to explain what was happening but the police officer had not taken any report.  She said that she had not been able to tell her husband what had been happening because he would have wanted to fight with these people and they would have killed him.  She said that these people carried out underworld killings for [Mr B] and they would do whatever they pleased to young women in bars and clubs.  The applicant wife said that in April 2013 they had come to her home when they had been intoxicated and they had assaulted her.  She said that she had gone to the police the next day to report what had happened but the officers had asked her if she had proof.  She said that these people could not be brought to justice.

6. Along with her application the applicant wife produced media reports relating to [Mr B].  In September 2013 the Department received a number of anonymous allegations suggesting that the applicants were using fraudulent documents to deceive the Department.  Under cover of a submission dated 10 February 2015 the applicants’ representative produced further media reports relating to [Mr B] which referred to the fact that he had resigned as the [role] of the ruling Sri Lanka Freedom Party (SLFP) in [Electorate 1] [following] [an incident].  She also produced media reports relating to another member of [Electorate 1], [name] of the United People’s Freedom Alliance (UPFA, the then ruling coalition which included the SLFP), who had been remanded in March 2011 for allegedly [perpetrating a criminal act] in the recent local government elections.  She also produced media reports referring to [cases] in Sri Lanka including a case of rape and murder committed by four provincial politicians for which they had been sentenced to 20 years’ imprisonment in 2014.

7. The applicants’ representative also produced two letters from a psychologist dated [in] December 2013 and [in] February 2015 in which he referred to the applicant wife’s claims and said that in his opinion she was suffering from [medical conditions].  The psychologist said that the applicant wife could not tell her husband what had happened because to do so would bring shame on her and her family and would risk the life of her husband who she believed would confront [Mr A].  He said that for the same reasons she could not move to live elsewhere in Sri Lanka because her husband would need to know why she wanted to do so.

8. In her covering submission the applicant’s representative said that the applicant wife had suffered significant mental trauma and had been [assaulted].  She submitted that she met the definition of a refugee because she had been targeted for reasons of her membership of the particular social group of ‘single women’ in that, although she had been married, her husband had been living overseas and she had had no defence against the assaults carried out on her.  She also submitted that the applicant wife came within the complementary protection criterion in that she suffered from mental and emotional difficulties and her return to Sri Lanka would increase the severity of her mental condition.  She also referred to the fact that the applicant husband had [medical conditions].

9. The applicant wife was interviewed by the primary decision-maker in relation to her application [in] February 2015.  She confirmed that her parents had lived with her in Sri Lanka.  She said that the house had been built by her husband on land given to her at the time of her marriage.  She confirmed that her husband had been working overseas both before and after they had married.

10. The applicant wife said that it had been in April 2011 that her husband had last left Sri Lanka to work overseas.  She said that the [company] was based in a town named [Town 1], around [distance] kilometres from her village.  She said that she had only used [the services of this] company once before, [and] that the owner of the company, [Mr A], was very well-known and had political connections.  She said that her father knew this person’s [relatives]. She said that one of his [relatives] was named [name] and he had contested elections in the past.  She said that the family was well-known in the town: they had [various] businesses.  She said that [Mr A]’s [relatives] had connections to the underworld and they controlled [a certain sector] in [Town 1]: they did not allow anyone else to [undertake that business] in the town.   She said that [Mr B] was the [role] for [Electorate 1] and [Mr A]’s [relatives] were members of the provincial council in [Electorate 1].  She said that [Mr A] was a close associate of [Mr B] and that if [Mr A] did harm to her [Mr B] would come to his rescue.

11. The applicant wife said that she did not know why [Mr A] had targeted her but it might have been because her parents were old and her husband had been overseas.  She said that the underworld figures controlled the only [police] stations in the area, [location] and [Town 1].  She confirmed that one day [Mr A] had come when he had been drunk and had behaved in a most disgraceful manner.  She said that her parents had not been at home at this time because they had gone to her [sibling]’s house for the Sinhalese New Year.  She said that she had not told her parents what had happened and she had gone on her own to the police station in [location].  She confirmed that the police had asked her for proof and had told her that without proof they could not accept anything.  She said that she had not gone to a hospital because she had not told anyone what had happened.  She said that she had been really upset and mentally distressed.  The applicant wife said that when she had mentioned [Mr A]’s name to the police they had not been ready to act on her complaint against him.  She said that she had complained about him once before and the police had not wanted to take this complaint either.

12. The applicant wife said that she had seen the psychologist from whom she had produced letters about three times.  The primary decision-maker suggested that what she was claiming did not bear the necessary connection with one of the five Convention grounds.  The applicant wife said that her [family member] (her representative) had advised her that she could apply for Australia’s protection.  Asked why she thought she would be at risk if she returned to Sri Lanka the applicant wife said that her husband could not find employment in Sri Lanka: he had to live and work in some other country.  She said that if she returned to Sri Lanka there would definitely be a threat to her life from [Mr A].  She said that if her husband went there her husband would also be threatened.  The primary decision-maker suggested that the applicant wife could move somewhere else in Sri Lanka.  The applicant wife said that they had built their house in their village so they had nowhere to go to resettle in some other part.

13. In a further submission dated 24 February 2015 the applicants’ representative produced documents with regard to the family’s medical issues.  She submitted that [Mr A]’s real name was [name] and that one of his [relatives] was [name] who owned [businesses] and who was a thug who collected money from other [business owners] on a regular basis.  She submitted that [Mr A]’s other [relative] was [name], who owned [property] in the area and who was also very wealthy and powerful.  She said that they were all connected to [Mr B].

14. Under cover of a submission to the Tribunal dated 12 October 2016 the applicants’ representative produced a copy of a statutory declaration made that day by the applicant wife in which she said that she could not relocate within Sri Lanka because her husband was not aware that she had been [assaulted] and she would not be able to explain to him why she needed to leave the village where her family had been living for generations.  She referred to her evidence that if she told her husband he would wish to take revenge on those responsible and that this would put her husband’s life in great danger as these people were thugs and gang members and the police would not help.  She also referred to her husband’s health problems which she said included [medical conditions].  She said that she wanted her children to have a normal life.  She added that Sri Lanka was a very small country, that the perpetrator came from a family of thugs and politically influential businessmen and that she would not be able to cope with the fear and pressure if she had to return to Sri Lanka.

15. The applicants’ representative also produced a letter dated [in] September 2016 from a clinical psychologist who said that she had seen the applicant wife for [number] sessions since [date] October 2015.  The psychologist referred to the applicant wife’s claims and said that she reported symptoms indicative of [medical conditions].  She said that the applicant wife had told her that [Mr A] still visited her parents asking when she would return.  The applicants’ representative also produced letters in relation to [one of the] children, further copies of some of the documents which had been produced to the Department and further media reports relating to [Mr B] and violence against women in Sri Lanka.  In her covering submission the applicant’s representative reiterated her submissions to the Department regarding the complementary protection criterion.

    Discussion of the applicant wife’s claims

16. The applicant wife attended a hearing before me on 19 October 2016.  I explained to her that I had read her claims about what had happened to her in Sri Lanka and that I would not be needing her to repeat her account of what had happened to her.  I explained to her that what we would be talking about was how her claims related to the basis upon which she could be granted a protection visa.  I asked her what she feared would happen to her if she returned to Sri Lanka now.  She said that she had faced some problems in Sri Lanka and that she had to protect her family.  She said that this was the reason she was unwilling to go back to Sri Lanka.  She confirmed that she feared that if she returned to Sri Lanka these problems would happen again.

17. I asked the applicant wife what her husband would do if she went back to Sri Lanka.  The applicant wife said that her husband was here with her in Australia and that if she went back to Sri Lanka her husband would come to know what had happened and their family would be disrupted.  I asked her whether, if they went back to Sri Lanka, her husband would stay in Sri Lanka or whether he would go somewhere else.  The applicant wife said that he would stay there with the family.  I asked her if he would be able to find work in Sri Lanka and she said that it might be somewhat difficult to get a job in Sri Lanka.  I noted that she had said that in the past her husband had had to go overseas to find work.  I asked the applicant wife if she thought that her husband would have to go overseas again or if he would be able to find work in Sri Lanka.  She said that it was difficult to get employment in Sri Lanka.  I noted that the material which she had produced to the Tribunal suggested that her husband was working casually in Australia, doing [work].  She confirmed that in [Country 1] her husband had worked in a [workplace].  She said that it would be very difficult to find similar work in Sri Lanka.

18. The applicant wife said that in Sri Lanka she had her parents [and siblings].  She said that her parents were currently living in the house where she had been living before she had come to Australia.  She confirmed that her husband had built this house on land which belonged to her.  She said that [one sibling] lived in [location] in [District 1] where [the sibling] had got married and her [other sibling] was living in the village where she herself had been living before she had come to Australia.  I referred to the evidence of the applicant wife that a man named [Mr A] had targeted her.  She said that she thought that this man had targeted her because he had known that her husband was not at home.  She said that [Mr A] and his family were very well-known in her village: they were very powerful politically because they had strong political connections.  She said that they were really thugs and they took ransom from people.  She said that [Mr A] had [relatives] who were politicians.  She said that her father had known this because [Mr A]’s [relatives] were well-known as politicians but that her father had not had any dealings with [Mr A] or other members of his family.

19. I put to the applicant wife that if she went back to Sri Lanka and her husband went with her he would not be away any more.  The applicant wife said that if her husband came to know this problem it would aggravate his sicknesses and her family would be really affected.  She confirmed that she had kept what had happened secret.  I put to her that she had said that [Mr A] had targeted her because he had known that her husband had not been at home and that if she and her family went back to Sri Lanka now her husband would stay at home so [Mr A] would not have a reason to target her any more.  The applicant wife said that if they went back to Sri Lanka her husband would come to know what had happened and this would aggravate the situation and more and more problems would come up.

20. I asked the applicant wife why her husband would come to know.  The applicant wife said that her husband was very concerned about the family and he had been looking after them very well.  She said that if he came to know this issue it would aggravate the problem and he would feel sad.  She said that also various other issues might come up.  She said that he had been protecting her: she had been asked to stay at home and to look after the child rather than working because her husband was so concerned about the family.  I put to her that it was still not clear to me why her husband would find out what had happened.  The applicant wife said that there was a possibility that when she went there [Mr A] would come again and inquire about it.  She said that [Mr A] had made inquiries about them after they had left Sri Lanka.  She said that also they were politically very powerful people.

1. I put to the applicant wife that she had told me that the reason [Mr A] had targeted her or had singled her out had been that he had known that her husband had not been there.  I put to her that this suggested that, if she went back to Sri Lanka with her husband, [Mr A] would not have this reason to target her any longer.  The applicant wife said that this would not be a reason for him not to come because in Sri Lanka they were so powerful that they would not consider those things as important.  She said that the possibility would always be there that [Mr A] would come and trouble her.  She said that there was a possibility that he would see her and her husband going and coming in any place.

2. I put to the applicant wife that, accepting everything she had said about [Mr A] being politically powerful and his family being politically powerful, there had to be some reason why [Mr A] would single her out in particular.  I put to her that because [Mr A] was such a powerful person and his family were so powerful there would be lots of people whom they could harm and trouble in that way.  I referred again to the fact that the applicant wife had said that the reason [Mr A] had picked on her had been that he had known that her husband had not been at home.  I put to her that, obviously, if she went back to Sri Lanka with her husband, [Mr A] would know that her husband was at home.  The applicant wife said that they were people who were so corrupted and who were involved in so many vices that they did not consider that type of thing.  They would always trouble without considering whether your husband was there or not.  I put to her that she had told me that [Mr A] had considered this in her case: she had said that the reason [Mr A] had targeted her had been that he had known that her husband had not been at home.  The applicant wife repeated that, even if her husband were there, there was a possibility of [Mr A] coming and then the thing would be revealed and there would be problems for her.

3. I indicated to the applicant wife that I would consider the chance or the risk that things would be revealed but as we had discussed she had said that she had kept what had happened secret from her husband for some years now.  The applicant wife said that she did not want her husband to come to know this.  I put to her that what had happened, as I understood it, had happened because of the chance that [Mr A] had happened to be the person who had driven her and her husband to the airport in 2011 so he had known that her husband had gone overseas.  As a result he had known that she was alone and that her husband had not been there in Sri Lanka.  I put to the applicant wife again that she had said that this had been why [Mr A] had singled her out or targeted her.  The applicant wife agreed.

4. I put to the applicant wife again that she had said that if she went back to Sri Lanka now her husband would go with her.  The applicant wife again agreed.  I put to her that from everything she had said about [Mr A] he would know this: he would know that her husband had returned with her.  The applicant wife agreed that [Mr A] would come to know but she said that when he understood that she was there he would sometimes come and her husband would come to know what this was.  I put to her that I had difficulty in accepting that [Mr A] would continue to come if he knew that her husband was there.  The applicant wife said that those people were not that type of civilised people.  She said that [Mr A] would talk to her when she was going up and down so he could always come, even though her husband was there.

5. I put to the applicant wife again that she had said that [Mr A] had come because he had known that her husband had not been there.  She again agreed.  I put to her that from everything she had said it did not appear that her family had had any dealings with [Mr A] or his family - his politically powerful [relatives] - before this.  The applicant wife confirmed that before they had taken this vehicle to the airport there had been no connections.  I put to her that this suggested that [Mr A] had been taking advantage of the opportunity which he had believed had existed because he had known that her husband had not been in the country.  The applicant wife referred to her evidence that [Mr A] had visited her home to make inquiries about her several times after she had left Sri Lanka.  I put to her again that, as we had discussed, from everything she had said about [Mr A], I thought that, if she went back to Sri Lanka with her husband, [Mr A] would know that her husband was there.  The applicant agreed but she repeated that [Mr A] would come so this issue would come up again, it would become known by her husband and there would be family disunity after that.

6. I noted that the applicants’ representative had also referred to the health problems which both the applicant wife and her husband had.  The applicant wife said that her husband had had a [medical condition] and now he had [another medical condition].  I explained to her that it was difficult to fit health problems within the definition of a refugee under the Refugees Convention because, as I had explained at the beginning of the hearing, there had to be a connection with one of the five Convention reasons.  I put to her that it had not been suggested that she or her husband would be discriminated against in relation to the provision of medical care for one of these five reasons.  The applicant wife said that she understood.  I explained to her that, in relation to the complementary protection criterion, there was no suggestion that the Government of Sri Lanka had arbitrarily limited medical care for people with her or her husband’s medical conditions and that the other parts of the definition of ‘significant harm’ required that there be an intention to cause people pain or suffering or extreme humiliation.  I put to her that there was nothing in the evidence before me to suggest that there was such an intention in relation to the provision of medical care in Sri Lanka.  I indicated to the applicant wife that I accepted that the medical care in Sri Lanka might not be of the same standard as it was in Australia but this in itself did not bring the situation within the complementary protection criterion.  The applicant wife said that she understood.

7. The applicants’ representative said that she thought that the applicant wife had not elaborated on a lot of the key issues.  After a break to consult her representative the applicant wife said that the only thing she had to tell was that she could not possibly go back to Sri Lanka.  She said that she had to protect her family.  She said that [one child] was receiving a good education here and was learning well.  She said that, supposing she went back to Sri Lanka, [Mr A] would definitely come back, even though she was going to be with her husband.  She said that [Mr A] knew her husband as well because they had talked to each other occasionally.  She said that because they were corrupted type of people the possibility was always there that [Mr A] would come even though her husband would be there.  She said that something had already happened to her so that would come to light if she returned to Sri Lanka.  She said that her husband also drank and they were also people who drank and in such a situation what had happened might come out.  She said that her husband would not be able to stay at home all the time looking after her: he would have to find some job and he would have to go out for work.  She said that she would also have to go out and if she did so they could follow her.  She said that if her husband could not find a job locally he might have to go [overseas] and if he were not available these people could come.  She added that even if he were available they could come.

8. The applicant wife said that because what had happened had not been revealed to her husband this would be an even bigger issue for her.  She said that she would get mental pressure and if her husband came to know this would also put pressure on her.  She referred to the fact that they lived in a village and that [Mr A] lived close by.  She said that she had the protection she required here and that she wanted to look after her family and be at peace here.  She said that honestly she could not go there because her husband’s condition would really deteriorate, she would lose her husband if they had to go there and the family would be having a bigger problem.  She said that if her husband came to know about what had happened she would also lose her husband and she would have more and more problems. She said that these people would make use of that opportunity to harm her again.  I handed back a folder containing documents relating to her [child]’s educational achievements and the like which had been produced at the beginning of the hearing.  The applicant wife said that because she could not go back to Sri Lanka she was requesting protection and family unity which she had in this country.  She said that she had the opportunity to get treatment here for her mental condition but in Sri Lanka she would not have this type of treatment.  She said that if she had to go there she would face more and more problems.

   Conclusions

9. As referred to above, the applicants’ representative produced to the Department two letters from a psychologist dated [in] December 2013 and [February] 2015 in which he said that in his opinion the applicant wife was suffering from [medical conditions].  She produced to the Tribunal a letter dated [in] September 2016 from a clinical psychologist who said that the applicant wife reported symptoms indicative of [medical conditions].  I have considered in light of these letters whether the applicant wife had the capacity to participate in the hearing before me on 19 October 2016.  Her answers were responsive to my questions and she was able to address the matters which I raised with her in a way which I consider indicated that she understood what I was putting to her.  I consider that she was able to participate effectively in the Tribunal hearing.

10. As likewise referred to above, in September 2013 the Department received a number of anonymous allegations suggesting that the applicants were using fraudulent documents to deceive the Department.  This is not a case which turns in any way on documents from Sri Lanka and I have given these anonymous allegations no weight.

11. It is relevant to remark in the context of the present case that both the definition of a refugee in the Refugees Convention and the complementary protection criterion are forward-looking: the fact that the applicant wife has suffered persecution in the past and that the Sri Lankan authorities failed to take any action on her reports does not, in itself, establish that she has a well-founded fear of being persecuted for one of more of the five Convention reasons if she returns to Sri Lanka now or in the reasonably foreseeable future or that, for the purposes of the complementary protection criterion, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife being removed from Australia to Sri Lanka, there is a real risk that she will suffer significant harm.

12. The applicant wife claims that she fears that if she returns to Sri Lanka she will be troubled again by [Mr A] and that her husband will come to know that [Mr A] [assaulted] her while her husband was working overseas.  As I put to her, from her account it appears that [Mr A] only targeted her because of the chance encounter when he drove her and her husband to the airport in April 2011.  She does not claim that she or other members of her family have had dealings with [Mr A] or other members of [Mr A]’s family in the past.  As I put to the applicant wife, I consider on the basis of her account that [Mr A] was taking advantage of the opportunity which he believed existed because he knew that her husband was not in the country.  Although she has said that since she left Sri Lanka [Mr A] has visited her home to make inquiries about her several times, I do not accept that [Mr A] would have any reason to target her if she were to return to Sri Lanka now or in the reasonably foreseeable future with her husband and their two children.  While I accept that, as she said, her husband will not be able to stay at home all the time looking after her and she herself will have to go out, the fact remains that the opportunity which presented itself to [Mr A] because he knew that her husband was not in the country will no longer exist.

13. When she was interviewed by the primary decision-maker the applicant wife said that her husband could not find employment in Sri Lanka and that he had to live and work in some other country.  At the hearing before me, although she initially said that her husband would stay in Sri Lanka with her and their family, she said subsequently that if he were unable to find a job locally he might have to go [overseas] to work and that if he were not available these people could come.  However she has said that her husband has [medical conditions].  Given his health problems I consider that there is only a remote chance that he will go [overseas] to work if the family returns to Sri Lanka now or in the reasonably foreseeable future.  While I accept that her husband has worked in the past in a [workplace] in [Country 1], the applicant wife has not suggested that there is a possibility that he will return to [Country 1] to work in the future.

14. I have therefore assessed the applicant’s wife’s claims on the basis that her husband will accompany her and their two children back to Sri Lanka and that he will remain there with her rather than travelling overseas for work once again.  While the applicant wife said that it would be somewhat difficult for her husband to get a job in Sri Lanka I note that they come from the majority Sinhalese community in Sri Lanka[1] and that it has not been suggested that either she or her husband will experience discrimination for reasons of their race in obtaining employment in Sri Lanka.  Given that, as I have said, I consider that [Mr A] was taking advantage of an opportunity which he believed existed because he knew that her husband was not in the country, I do not accept that there is a real chance that the applicant wife will once again be [assaulted] or troubled or otherwise persecuted by [Mr A] and his friends or associates if she returns to Sri Lanka with her husband and their two children now or in the reasonably foreseeable future.

    [1] DFAT Country Information Report - Sri Lanka, 18 December 2015, paragraph 2.5; see now DFAT Country Information Report - Sri Lanka, 24 January 2017, paragraph 2.5.

15. With regard to the applicant wife’s fear that her husband will come to know that [Mr A] [assaulted] her while her husband was working overseas, as I noted, I consider it relevant that she has said that she has successfully kept what happened secret from her husband for some years now.  The applicant wife said that [Mr A] would come and trouble her again but for the reasons give immediately above I do not accept that there is a real chance that this will occur.  She said that her husband also drank and [Mr A] and his friends or associates were also people who drank and in such a situation what had happened might come out.  The applicant wife has not suggested, however, that [Mr A] has talked about what happened or that what happened became common knowledge in her village at the time.  I find on the evidence before me that there is only a remote chance that what happened over three and half years ago will come out if she and her husband and their two children return to Sri Lanka now or in the reasonably foreseeable future.  I do not accept, therefore, that there is a real chance that she will lose her husband or that his sicknesses will be aggravated or that her family will be affected because her husband will come to know that [Mr A] [assaulted] her while her husband was working overseas if she and her husband and their two children return to Sri Lanka now or in the reasonably foreseeable future.

16. I accept that the applicant wife is suffering from [medical conditions] for which she is receiving treatment in Australia and that her husband has [medical conditions]. As I indicated to the applicant wife, I accept that the medical care which she and her husband can access in Sri Lanka may not be of the same standard as the care they are receiving in Australia. However there is no suggestion that they will be discriminated against in relation to the provision of medical treatment, or that they will be refused medical treatment, for one or more of the five Convention reasons. I do not accept on the evidence before me that one of more of the five Convention reasons is the essential and significant reason for the problems which they fear they will have as a result of their medical conditions as required by paragraph 91R(1)(a) of the Migration Act 1958. 

17. Having regard to my findings of fact above, I do not accept that there is a real chance that the applicant wife will be persecuted for reasons of her membership of the particular social group of ‘single women’ in Sri Lanka as submitted by her representative if she returns to Sri Lanka now or in the reasonably foreseeable future.  As I have indicated above, I have assessed her claims on the basis that her husband will accompany her and their two children back to Sri Lanka and that he will remain there with her rather than travelling overseas for work once again.  In her statutory declaration made on 12 October 2016 the applicant wife said that she would not be able to cope with the fear and pressure if she had to return to Sri Lanka.  However I do not accept on the evidence before me that one or more of the five Convention reasons is the essential and significant reason for the fear and pressure she may feel if she returns to Sri Lanka: I consider that this fear and pressure relates to her individual circumstances based on her past experiences in Sri Lanka.  For the reasons given above I do not accept on the evidence before me that the applicants have a well-founded fear of being persecuted for one or more of the five Convention reasons if they return to Sri Lanka now or in the reasonably foreseeable future.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm?

18. Having regard to my findings of fact above I do not accept on the evidence before me that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife being removed from Australia to Sri Lanka, there is a real risk that she will be [assaulted] or troubled or that she will otherwise suffer significant harm at the hands of [Mr A] and his friends or associates.  Having regard to my findings of fact above I do not accept on the evidence before me that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm because the applicant husband will come to know that [Mr A] [assaulted] the applicant wife while her husband was working overseas.

19. I accept that the applicant wife is suffering from [medical conditions] for which she is receiving treatment in Australia and that her husband has [medical conditions].  As I indicated to the applicant wife, I accept that the medical care which she and her husband can access in Sri Lanka may not be of the same standard as the care they are receiving in Australia.  However there is no suggestion that the Government of Sri Lanka will arbitrarily refuse the applicants medical treatment or that it has arbitrarily limited treatment for people with the sort of problems which they have such that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will be arbitrarily deprived of their lives.

1. The definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. I do not accept on the evidence before me that there is the requisite intention to inflict pain or suffering or to cause extreme humiliation to people suffering from the sort of medical problems which the applicants have. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm as defined as a result of their medical problems.

2. In her statutory declaration made on 12 October 2016 the applicant wife said that she would not be able to cope with the fear and pressure if she had to return to Sri Lanka. However I do not accept that the fear and pressure which she may feel if she were to be removed from Australia to Sri Lanka brings her within the complementary protection criterion: it is well-established that harm arising from the act of removal itself will not meet the definition of ‘significant harm’ in subsection 36(2A) of the Migration Act.[2] At the hearing before me the applicant wife said that her [child] was receiving a good education here and was learning well and she produced a folder containing documents relating to her [child]’s educational achievements and the like. However such matters which may be regarded loosely as compassionate circumstances do not bring her family’s situation within the complementary protection criterion. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

   [2] See SZRSN  v Minister for Immigration & Anor [2013] FMCA 78 at [64] per Driver FM, upheld in SZRSN v Minister for Immigration & Citizenship [2013] FCA 751 at [48]-[49] per Mansfield J.

   CONCLUSIONS

3. For the reasons given above I am not satisfied on the evidence before me that the applicants are persons in respect of whom Australia has protection obligations. Therefore they do not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in paragraph 36(2)(b) or (c) of the Act. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

4. The Tribunal affirms the decision not to grant the applicants protection visas.

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

5. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

   ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

   Refugee criterion

6. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

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

7. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

8. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

   (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.

9. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

   ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

10. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

    ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

11. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

12. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

    ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

13. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

    ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

    Complementary protection criterion

14. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

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

    Member of the same family unit

16. Subsection 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person and that ‘member of the family unit’ has the meaning given by the Regulations for the purposes of the definition.

    Credibility

17. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

18. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

19. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.