1614642 (Refugee)

[2018] AATA 4790

1614642 (Refugee) [2018] AATA 4790 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614642

COUNTRY OF REFERENCE:                  Sri Lanka

MEMBER:Alison Murphy

DATE:17 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 17 September 2018 at 11:04am

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – particular social group – middle aged divorced women in Sri Lanka – fears discrimination, harassment and economic hardship – applicant waived her right to attend tribunal hearing – applicant did not attend interview with the department – applicant has not suffered harm in Sri Lanka in the past – close family ties in Australia – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 345, 351, 417, 454, 499, 501J

Migration Regulations 1994 (Cth), Schedule 2, Schedule 3

CASES

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is [an age] year old female citizen of Sri Lanka who first arrived in Australia [in] March 2006 as the holder of a [student] visa.  She was granted further student visas in 2007, 2009 and 2010 and she applied for the protection visa on 11 July 2014.  She seeks to invoke Australia's protection obligations so that she does not have to return to Sri Lanka where she fears discrimination, harassment and economic hardship as a divorced woman from a conservative community in Sri Lanka.

3. A delegate of the minister refused to grant the protection visa on 1 September 2016. Although the delegate accepted that ‘divorced women in Sri Lanka’ is a particular social group for the purposes of s.91R(1)(a), the delegate was not satisfied that she had a well-founded fear of persecution or was at real risk of significant harm for this reason.

4. The applicant was invited to appear before the Tribunal on 24 September 2018 to give evidence and present arguments. The applicant’s representative initially responded to the hearing invitation indicating the applicant would attend the hearing. On 6 September 2018 her representative advised the Tribunal that the applicant wished to waive her right to attend and consented to the review application being determined on the papers. On the same date the Tribunal wrote to the applicant advising that the member did not consider she could make a favourable decision on the information currently before the Tribunal.  The Tribunal’s letter sought confirmation that the applicant was aware the Tribunal would cancel the scheduled hearing and proceed to affirm the review application on the papers. By email of the same date the applicant’s representative confirmed the applicant had agreed to waive her right to attend the scheduled hearing.

   Submissions by the applicant’s representative

5. The applicant was represented in relation to the review by her registered migration agent. The representative has filed documents and submissions in relation to the review.

6. In submissions lodged with the Tribunal on 3 September 2018, the applicant conceded through her representative that she is not eligible for a protection visa:

   Although she will likely face discrimination, social stigma and other hardship if forced to return to Sri Lanka, her claims do not satisfy the criteria for a protection visa under section 36(2)(a) or 36(2)(aa).

7. Notwithstanding the applicant’s concession, I have assessed her claims on their merits. For the reasons set out below I consider the decision of the delegate to refuse the applicant a protection visa should be affirmed.

8. The applicant seeks to have the matter referred to the Minister for consideration under his intervention powers.  For the reasons set out below under the heading ‘Referral for Ministerial Intervention’, I consider it appropriate to do that.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Country of nationality

9. It is not in dispute that the applicant is a Sri Lankan national and she has produced to the Department copies of her Sri Lankan passports. The Tribunal finds that the applicant is a citizen of Sri Lanka and has assessed her claims against that country.

   Personal history

10. The applicant was born in Colombo, Sri Lanka.  In her protection visa application she states that she completed 17 years of school in Sri Lanka [and] a Diploma [in] Australia.

11. She states she worked in a number of positions in [Sri Lanka]. Since arriving in Australia she has worked as [an Occupation 1] and in customer service.

12. The applicant is the youngest of [number] siblings, three of whom are in Australia and [the rest] are in Sri Lanka. She married her husband [in] Sri Lanka in 1999 and they have no children. The applicant’s husband divorced her in 2008, shortly after she travelled to Australia.

13. The applicant came to Australia in 2007 aged [age], completing a [diploma] and working in the retail [industry], including at [two businesses] owned by her sister [Ms A].

14. The applicant currently lives with her sister [Ms A] in Melbourne as well as [Ms A]’s husband, son and mother-in-law.  [Ms A] is an Australian citizen as is her husband and son. [Ms A] has recently been diagnosed with [a medical condition] and requires [treatment]. Another sister, [Ms B], is an Australian permanent resident, as is her [daughter].  The three sisters are close, as are their extended families.

15. The applicant’s other siblings remain in Sri Lanka, although some of them have children in Australia. Some of the siblings remaining in Sri Lanka are dependent on the applicant and other relatives in Australia for financial and other assistance.

16. I accept the above matters to be true.

    Claims for protection

17. In assessing the applicant’s protection claims, I have had regard to the information contained in her visa application and accompanying documents as well as submissions and country information put forward by her representative to the Department and the Tribunal. Those submissions indicate the applicant fears harm as a member of the particular social group ‘divorced women in Sri Lanka’ and that her claims engage both s36(2)(a) and s.36(2)(aa) of the Act.  I note the applicant did not attend an interview to discuss her claims with the delegate, nor did she attend a hearing before the Tribunal.

18. In her protection visa application, the applicant stated that she came to Australia to study [and] had not experienced harm in Sri Lanka.  As a divorced woman she fears discrimination, harassment and economic hardship in the workplace and in the community if she returns to Sri Lanka. She grew up in Sri Lanka and understands the conservative attitudes towards women her age and has witnessed the discrimination, harassment and stigma experienced by divorcees in that country.

19. She states her siblings in Sri Lanka do not approve of her divorce and will not financially support her.  She fears as a middle aged divorcee she will face discrimination and harassment from prospective male employers and she will not be able to subsist if she cannot find work. 

20. I have considered the material submitted by the applicant to the Department. I note there was some confusion about the date of divorce, with the applicant apparently misunderstanding the nature of the paperwork she provided to the Department.  While the applicant originally stated her husband divorced her in 2013, the decree nisi issued by [a] District Court [in] 2008 indicates the divorce was granted in that year on the basis of her husband’s uncontested evidence that she had maliciously deserted him. The court documents indicate that the applicant was not present at the hearing and she had been served by substituted service, apparently on a relative.  I note the applicant was in Australia at the time of the court hearing and has not returned since and I accept she was not aware of the court proceedings at the time.  I find the applicant was divorced in 2008, although she did not become aware of this until several years later.  I accept she is a member of the particular social groups, ‘middle aged women in Sri Lanka’, ‘divorced women in Sri Lanka’ and ‘middle aged divorced women in Sri Lanka’.

21. In considering the applicant’s claims to fear harm on the basis she is a middle aged divorced woman from a conservative community in Sri Lanka, I have considered the country information provided by the applicant’s representative to the Department as well as that cited in the delegate’s decision.

22. I have considered the submissions by the applicant’s representative to the department dated 10 July 2014. The US Department of State 2010 Human Rights Report: Sri Lanka reports that women have equal rights under civil and criminal law, however face de facto discrimination in the adjudication of questions relating to family law, including divorce, child custody and inheritance.  While the law provides for equal employment opportunity in the public sector, in practice women have no protection against discrimination in the private sector, where they are sometimes paid less than men and experience difficulty rising to supervisory positions.  Most women are employed in low skilled, casual jobs and traditions of male leadership make it difficult for them to challenge this situation. There is a lack of specific laws dealing with sexual harassment and the female unemployment rate is higher than that of males[1]. 

    [1] Submissions of the applicant’s representative to the department dated 10 July 2014

23. In submissions dated 3 September 2018, the Tribunal was referred to more recent reports by the International Labour Organisation and the UN Committee on the Elimination of All Forms of Discrimination Against Women.  The ILO report states that while Sri Lanka has distinguished itself as a regional trendsetter on gender equity with regard to education and other social indicators, women have remained pegged at a meagre 30-35% of the workforce for the past two decades. It concludes they have lower chances to get into the workforce than men and also face wage discrimination, earning anywhere between 30-36% less than their male counterparts, although there is greater parity in wages in the public sector[2]. The submission states that a 2017 CEDAW report also raised concerns about the economic reports of divorced women.

    [2] International Labour Organisation 8 March 2018 Women at Work: The Course for Sri Lanka as cited in the submissions of the applicant’s representative to the department dated 3 September 2018

24. I have also considered the country information cited in the delegate’s decision indicating that approximately 4.8% or half a million women in Sri Lanka are divorced or separated[3]. 

    Refugee criterion

    [3] At page 10 of the delegate’s decision dated 1 September 2016

25. I accept the applicant is a middle aged divorced woman from a socially conservative community.  For the reasons set out above, I have accepted she is a member of the particular social groups ‘middle aged women in Sri Lanka’, ‘divorced women in Sri Lanka’ and ‘middle aged divorced women in Sri Lanka’.

26. The applicant fears she will face discrimination and harassment from prospective employers and she will not be able to subsist if she cannot find work. On the basis of the country information cited above, I accept there to be a level of discrimination against women in the labour market in Sri Lanka, causing them to be under-represented in the workforce and to be subjected to wage discrimination. I further accept her siblings in Sri Lanka may not approve of her divorce and may be unwilling or unable to financially support her if she returns.

27. Not all kinds of discrimination rise to the level of serious harm for the purposes of s.91R(2). In this case the applicant’s evidence is that she was employed in a variety of positions while she was in Sri Lanka. She has 17 years of education in Sri Lanka and since her arrival in Australia she has obtained further qualifications and work experience in [Occupation 1]. She states that she has not experienced harm in Sri Lanka in the past. In such circumstances I do not accept that if the applicant returns to Sri Lanka, there is a real chance she will be unable to work or subjected to significant economic hardship such as would threaten her capacity to subsist, nor a denial of access to basic services or the capacity to earn a livelihood of any kind.

28. I am mindful that the applicant’s husband did not divorce her until after she arrived in Australia and I accept her claim that there remains a degree of stigma related to divorced women in Sri Lanka. However the country information before me does not indicate that divorced women are subjected to harm by their families or society for this reason. On the information before me I do not accept there to be a real chance that she would face harm for reasons of her membership of the particular social groups ‘middle aged women in Sri Lanka’, ‘divorced women in Sri Lanka’ or ‘middle aged divorced women in Sri Lanka’ if she returns to Sri Lanka, now or in the foreseeable future.

    Complementary protection criterion

29. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk she will suffer significant harm. ‘Significant harm’ is exhaustively defined in s.36(2A) of the Act. It is not suggested, and I do not accept, that the applicant will be arbitrarily deprived of her life nor that she will be subjected to torture or have the death penalty carried out upon her.

30. For the reasons set out above, I have not accepted there to be a real chance the applicant would face harm because of she is a middle aged divorced women if she returns to Sri Lanka, now or in the foreseeable future.  Nor have I accepted there to be a real chance she will be unable to work or subjected to significant economic hardship such as would threaten her capacity to subsist, nor a denial of access to basic services or the capacity to earn a livelihood of any kind.

31. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4]  For the same reasons I do not accept there to be a real risk that the applicant would face significant harm on these bases. 

    [4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

32. For the reasons set out above, I have accepted there to be a level of discrimination against women in the labour market in Sri Lanka, causing them to be under-represented in the workforce and to be subjected to wage discrimination. I have also accepted that there remains a degree of stigma related to divorced women in Sri Lanka and that the applicant’s siblings in Sri Lanka may be unwilling or unable to financially support her. However in circumstances in which the applicant has worked and studied in Sri Lanka and Australia for many years, I do not accept there to be a real risk she will be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment. In making this assessment I note she states she has not suffered harm in Sri Lanka in the past and she was able to find employment in a number of [positions]. As noted above, since her arrival in Australia she has obtained further qualifications and work experience in [Occupation 1].

33. For these reasons I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka, there is a real risk that she will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Referral for Ministerial Intervention

34. The Tribunal notes the applicant travelled to Australia as the holder of a [student] visa and was granted several other student visas while in Australia, completing a Diploma [course].  According to submissions lodged by her representative, her application for a [skilled] visa was first refused on 30 May 2011 on the basis that she did not meet English language requirements, however that decision was later remitted for reconsideration by the Migration Review Tribunal.  Her application for a [skilled] visa was again refused on 26 June 2013, this time on the basis that her sponsorship nomination had expired and she did not meet Schedule 3.  That decision was also remitted for reconsideration by the Migration Review Tribunal, but by that time her nomination had expired due to the effluxion of time.  While she was able to find a new sponsor and have her nomination approved, she was again refused the [visa], apparently on the basis of the Department’s policy relating to [a specific industry].  Her application for review to the Migration Review Tribunal of this refusal was mistakenly lodged in the name of her sponsor, as a consequence of which the Tribunal found it had no jurisdiction.  It appears that having completed her studies in Australia, the applicant would have been eligible for a [skilled] visa except for the delays caused by multiple appeal processes to the Migration Review Tribunal.

35. However, these are not matters that the Tribunal can take into account in making a decision. As the applicant does not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review. Only the Minister has the discretion to intervene and take these circumstances into account.

36. Having regard to the circumstances of the applicant and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351 set out in PAM3 “Minister’s guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)” the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention on the basis that it appears to raise circumstances that the legislation does not anticipate and circumstances where the application of relevant legislation may lead to an unfair or unreasonable result in a particular case. 

37. The Tribunal notes the existence in this case of further circumstances raised by the Ministerial guidelines, namely the length of time the applicant has been present in Australia, her level of integration into the Australian community and compassionate circumstances regarding her age and psychological state.  The applicant has now been in Australia for more than 12 years.  She lives with her sister [Ms A] and [Ms A]’s husband and son, all of whom are Australian citizens. [Ms A] has recently been diagnosed with [a medical condition], requiring [treatment].  She relies on the applicant for support around the house and in caring for her son [Mr C].  The applicant paid for [Mr C]’s [surgery] in July 2018 and also financially supported [another relative] through a [degree] in Australia, leading to her being granted permanent residence.

38. The applicant is also close to her sister [Ms B] and [Ms B]’s [daughter], both permanent residents living in Melbourne.  In all the applicant has [a number of relatives] in Australia, all of whom have or are applying for permanent residency.  Her efforts to gain residency in Australia are supported by [two organisations] as well as her friends and family.

1. Having regard to the circumstances of the applicant as outlined above and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351 set out in PAM3 “Minister’s guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)” the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

   CONCLUSIONS

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

3. 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).

4. 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

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

   Alison Murphy
   Member

   
   

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

7. 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).

8. 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.

9. 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’).

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