1621982 (Refugee)

1621982 (Refugee) [2019] AATA 4800 (11 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621982
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Alison Murphy
DATE:11 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 July 2019 at 9:41am

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – particular social group – persons suffering severe mental illness – identifiable group of persons set apart by their common characteristics – stigma associated with mental illness – physical and emotional abuse from family – electroconvulsive treatment (ECT) without consent – women in Sri Lanka – combined factors of gender and mental illness – capacity to subsist – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a 32 [age] year old female from Kandy, Sri Lanka who seeks to invoke Australia's protection obligations so that she does not have to return to Sri Lanka, where she claims to fear harm from her family and on the basis of her poor mental health.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm. A summary of the relevant law is contained in Attachment A.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision of the delegate should be remitted for reconsideration.
History of proceedings
The applicant arrived in Australia [in] February 2010 as the holder of a [student] visa and she has not departed since. Her most recent student visa ceased on 30 August 2014 and she applied for the protection visa on 25 August 2014. A delegate of the department refused to grant the visa to the applicant on 6 December 2016.
The applicant appeared before the Tribunal on 25 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese (Sri Lankan) and English languages.
The Tribunal hearing
The applicant was first invited to attend a hearing on 17 September 2018. For reasons relating to the applicant’s mental health and her capacity to give evidence, the hearing was adjourned and rescheduled on several occasions. On 2 May 2019 the Tribunal heard evidence from a witness, [Ms A]. On 25 June 2019 the Tribunal heard evidence from the applicant and further evidence from [Ms A].
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
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 passport and national identity card. I find that the applicant is a citizen of Sri Lanka I have assessed her claims against that country.
Personal history
The applicant states that she is of Sinhalese ethnicity and Buddhist religion. The delegate’s decision (a copy of which was provided to the Tribunal by the applicant) sets out that the applicant has produced to the department a copy of her birth certificate, but stated at interview that the person named as her mother in that certificate is actually her step-mother and not her biological mother. She stated that her father had an affair with her biological mother who abandoned her shortly after she was born, with the result she was taken in by her father and step-mother and registered as their child in order to enrol her at school. The applicant stated it was only when she was older that her step-mother told her she was not her biological daughter.
I note the country information cited in the delegate’s decision which indicates that children are eligible to receive free education in Sri Lanka as long as a birth certificate can be produced. That information indicates that forged birth certificates are readily available through agents in Sri Lanka and are used to support the issuance of fraudulent ID cards and passports[1]. The delegate accepted the applicant’s explanation as to the circumstances of her birth and her parentage as plausible. In light of this, and having heard the applicant’s own evidence at hearing, I accept the applicant is the step-child and not the biological child of the person named as her mother on her birth certificate.
[1] Delegate’s decision dated 6 December 2016
The applicant has consistently stated she grew up with her father and his family in Kandy, completing primary and high school in that city. At hearing she told me she lived in a household comprising her father, step-mother, step-sister and [other relative]. She has no other siblings.
The applicant lived and studied in [City 1], [Country 1] between 2006 and 2009 where she lived in a student hostel near the university and completed a [Qualification 1] before returning to her family home in Kandy. During this time she made multiple return trips to Sri Lanka. Her father, step-mother and step-sister remain in Sri Lanka.
The applicant arrived in Australia [in] February 2010. Since arriving in Australia she studied a [Qualification 2] at [Institution 1] before she withdrew from that course. She studied a [Qualification 3] at [Institution 2] in 2011 and 2012 before being excluded. She completed a [Qualification 4] at [Institution 3] in 2013 and 2014. Since her arrival in Australia she has worked as a [Occupation 1] and is currently working casually as a [Occupation 2].
I accept the above matters to be true.
Medical evidence before the Tribunal
Medical evidence before the Tribunal indicates the applicant has experienced significant mental health issues over a long period of time:
·A Sri Lankan diagnosis ticket states that she was admitted to hospital between [January] 2005 and [February] 2005 and diagnosed with severe depression and a conduct disorder after making several attempts at committing suicide following a conflictual argument at home. The applicant also provided several scripts for psychiatric medication issued to her in 2005;
·The applicant has continued to seek medical treatment for her psychiatric symptoms in Australia. In 2011 a GP wrote that she was suffering from stress and a medical condition which severely affected her ability to study and undertake upcoming examinations. A different doctor reports seeing her in September and October 2012 for depressive symptoms and referring her to psychiatric services to clarify her diagnosis;
·The applicant was again diagnosed with depression by a GP in 2013, who reports she was undergoing psychotherapy with a psychologist and was unable to cope with her education requirements at that time;
·A psychologist’s report dated 27 September 2012 by [Ms B] states that the applicant presents with symptoms consistent with a major depressive disorder and other associated psychiatric disorders;
·A medical certificate from [Dr C] of [Medical Clinic 1] dated 8 September 2018 states she had significant concerns about the mental state of the applicant, with the result that her keys and shoes were confiscated and an ambulance called to transport her to [Hospital 1] for urgent psychiatric assessment. She states the applicant was not currently able to give evidence and present arguments at the scheduled hearing and had been referred to a psychiatrist in Bendigo. In a referral to that psychiatrist, she noted the applicant was seeking voluntary assisted suicide;
·A report dated 9 October 2018 from [Dr D], psychiatrist states that he conducted a detailed assessment on that date and recounted her personal and medical history in detail. He states she suffers from possible double depression with long standing [symptoms]. On 16 October 2018 [Dr D] reported that the applicant had identified him as being from the same cultural background as her and requested discharge from his clinic. He recommended she be referred to a psychologist for management and that she also may need support from a case manager from public mental health services at some point;
·A medical certificate dated 18 December 2018 from [Dr E], psychiatrist states the applicant was unable to attend the Tribunal hearing on 23 January 2019 for reasons of her mental health. A medical certificate from [Dr E] dated 3 April 2019 states the applicant is not able to attend any studies at TAFE or elsewhere in 2019;
·A medical report from [Dr E] submitted to the Tribunal on 1 May 2019 states she continues to have great concerns about the applicant’s mental health, noting she presented with post-traumatic stress disorder relating to childhood trauma as well as [other symptoms].
Claims of past harm in Sri Lanka
The applicant claims to have suffered physical and emotional abuse from her family during her childhood. At hearing she gave evidence that her step-mother and step-sister beat her, bullied her and told her she was useless, worthless, ugly and stupid. Her father often travelled for work and in his absence she was required to do all the household chores and cook meals for the family after school, getting into trouble if her step-sister didn’t like what she had cooked.
When her father returned from his work trips, her step-mother and step-sister would tell him that the applicant was ‘mad’ or ‘crazy’, that the neighbours were afraid of her and he should send her away to live elsewhere. She states her family forcibly admitted her to psychiatric hospitals on several occasions, where she received medical treatment including electroconvulsive treatment (ECT) to which she did not consent.
There is support for the applicant’s claims in the medical evidence submitted to the Tribunal. The Sri Lankan diagnosis certificate confirms her 2005 hospitalisation occurred after she made several attempts at suicide following a conflictual argument at home. It reports her treatment plan included behavioural medication, parenting skills, setting limits and structuring her day. It records that if the applicant broke the rules she would be admitted to hospital.
The psychologist’s report dated 27 September 2012 by [Ms B] contains a similar description of the applicant’s family circumstances:
[The applicant] was born on [date]. Her father had an extra-marital affair with her mother, while her father was married to her step-mother. . . Her biological mother abandoned her after her birth and left her at her father’s and step-mother’s residence. [The applicant] has never seen her mother. She does not know and has never seen her biological mother. She has been rebuked by her step-mother every time she attempted to find out.
[The applicant]’s stepmother was physically and verbally abusive and physically beat her for disobeying or failing to do household chores. She was required to keep their two bedroom house spotlessly clean, hand wash all clothes and cook meals after attending school. She was forced to cook her step-sister’s favourite meals and got into trouble if her step-sister did not like what she had cooked.
Her father worked for a [company] and was required to work overseas frequently in [Country 2], [Country 3] etc. Her step-mother was physically violent during his absence. Every time [the applicant] attempted to complain to her father she was accused of lying. Her father checked with her step-sister who also told her father [the applicant] was lying.
While her father was away the abuse got even worse since both her step-mother and her step-sister abused her both verbally and physically. They told her she had an ugly face, she was dumb and a bad student. Her step-mother often took her step-sister out shopping, or to watch movies, and to visit relatives. They left [the applicant] alone at home and insisted that she complete all chores before they returned.
[The applicant] attended [a named school]. During the grade [number] year her teacher called up her father to inform him that [the applicant] was constantly crying and looked depressed. She was taken to the family doctor who put her on anti-depressants. [The applicant] took this medication for five years. However, the abuse continued and [the applicant] was not able to focus on her studies at school.
At the age of [age] [the applicant] began to cut herself and attempted to kill herself with an overdose of antidepressant. At the age of [age] she was given electric shocks for depression in Sri Lanka.
These compelling and compassionate circumstances made [the applicant] feel very sad and empty. Symptoms of depression affected her emotions, her thinking, behaviour and physical wellbeing. . .
The above circumstances were very sad and traumatic experiences for [the applicant]. [The applicant] continues to spend sleepless nights, thinking about her stepmother’s accusations. She thinks about her horrible past so much that she has developed chronic sickliness and physical symptoms that are not explainable by medical evaluations by her family doctor. [The applicant] experienced daily depression accompanied by loss of interest and pleasure in usual activities. She has had lots of stomach and intestinal problems . . . and experienced fatigue, impaired concentration and self-deprecatory ideation.
The above symptoms are consistent with the somatization disorder and social phobia. Fear of embarrassment and humiliation in social situations are frequent in patients with depression . . . [The applicant]’s avoidance of certain phobic situations is mainly due to anxiety.
The report by [Dr C] dated 8 September 2018 reports the applicant suffers from significant symptoms of depression related to her ‘horrific life’ whilst living in Sri Lanka. [Dr C] reports that her condition had fluctuated over the last three years but had recently acutely deteriorated. She states she had significant concerns about the mental state of the applicant, with the result that her keys and shoes were confiscated and an ambulance called to transport her to [Hospital 1] for urgent psychiatric assessment. This was avoided only because her migration agent was able to attend the clinic and collect her. In a referral to a psychiatrist on the same date, [Dr C] reports that the applicant was requesting voluntary assisted suicide on the basis of her psychiatric symptoms.
The report by [Dr D] dated 9 October 2018 states the applicant’s family remains in Sri Lanka, but she has not had relationships or contact with them for some years. He recounts her family history in a manner similar to [Ms B]’s 2012 report extracted above. The further report by [Dr D] dated 16 October 2018 indicates the applicant has no family or social supports in Sri Lanka and suffers from possible double depression with long standing dysthymic symptoms. [Dr D] notes he had no collateral information to clarify her history but he did not see her as malingering and her descriptions appeared to be reality based. He stated her acute risk level was assessed as low at that time, but her chronic risk level was moderate due to ongoing stressors and underlying personality structure. He noted her risk level could increase with further difficult interactions around her immigration status and if there was any plan for deportation.
At hearing the applicant recounted her personal history in a manner entirely consistent with her previous statements and the documentary evidence before me. She gave evidence she had been physically, emotionally and verbally abused by her step-mother, step-sister and biological father, resulting in her severe depression. She underwent at least three periods of hospitalisation in psychiatric wards in Sri Lanka, attempting suicide on several occasions. She received three sessions of electroconvulsive treatment (ECT) and other psychiatric treatments while in hospital without her consent.
She stated that her step-mother and step-sister constantly described her as ‘mad’ and ‘crazy’, hitting her with a stick and her father’s belt. They told her father the neighbours were afraid of her and she should be sent to live somewhere else. They falsely reported to him about her behaviour while he was away for business, causing him to become angry with her. When he was angry he screamed and smashed things as well as hitting her.
In 2005 she should have undertaken her final year exams, but she was hospitalised twice and was unable to sit her exams. She completed her exams the following year and in 2006 her father sent her to [City 1], [Country 1] where she studied a [Qualification 1] over three years. She had to return to Sri Lanka on the expiry of her student visa.
In 2009 aged about [age] or [age] she returned to her father’s house in Kandy where she lived for a period of some months before travelling to Australia. She gave evidence she thought things would be better because she was no longer a child and she had studied overseas. However things resumed as they had before, with her step-sister and step-mother telling her father that she was crazy, she shouldn’t be allowed to live in their house and that the neighbours and relatives were all scared of her. They kept asking her why she came back to Sri Lanka and told her they didn’t want a mad person in the house. Her father had her admitted to hospital again, where she was discharged on medications including risperidone.
When she was discharged from hospital she told her father that nobody wanted her to live there and asked him to send her somewhere else. Her father initially financially supported her in Australia, but this stopped after she had been here for a few years when her step-mother found out. She has not had any contact with her step-mother or step-sister since leaving Sri Lanka in 2010, but spoke to her father on the telephone a few years ago. The first time she called he answered and spoke to her. The next time he did not take her call and when she tried again the service had been disconnected. To her knowledge, her father remains living with her step-mother and step-sister in the family home in Kandy.
At hearing the applicant became physically ill when describing the above events. I consider her evidence to be credible and I accept her account of her treatment by her family in Sri Lanka.
On the basis of the medical evidence before me, I accept the applicant first became mentally unwell while at primary school in Sri Lanka. By her teenage years she was suffering severe depression with symptoms including suicidal ideation which manifested in slashing her wrists. I accept she was involuntarily treated with electro-convulsive treatment in Sri Lanka and has continued to experience major depression, suicidality, self-harm and associated physical symptoms during her time in Australia.
I accept the applicant had an extremely difficult childhood characterised by physical and emotional abuse from her step-mother and step-sister, as well as physical abuse from her father. I accept that while her father has supported her financially well into her twenties, he failed to defend her from her step-mother and step-sister during her childhood and early adulthood with the result she has no ongoing relationship with any member of her family.

Having heard the evidence of [Ms A], I accept the applicant has lived in significant financial hardship in Australia since her father stopped supporting her financially. She currently supports herself from her casual earnings as a [Occupation 2], with the assistance of her current employer who has been understanding of her mental illness. I accept [Ms A]’s evidence that she has observed the applicant to be living in extremely precarious financial circumstances in Australia which has made her vulnerable to exploitation by both her acquaintances and employers.
Risk of future harm in Sri Lanka
At hearing the applicant told me that if returned to Sri Lanka, she has nowhere to go except her father’s home. I accept that to be true, noting she has not lived in Sri Lanka except for brief periods since she left to study in [City 1] in 2006. She has never lived anywhere in that country other than her father’s house and all the evidence before me indicates she is entirely without any other family or social connections or support in that country. I accept she will not be welcome at her father’s home and that if she returns there, there is a real chance she will again face mistreatment from her step-sister and step-mother, including emotional and physical abuse.
At hearing I discussed with the applicant the possibility that she could return to Sri Lanka and live independently from her family, either in her hometown of Kandy or another large city. The applicant stated she feared she would be unsafe living alone as a woman suffering from mental health issues and unable to find a job or support herself. Given the applicant’s very serious and long standing mental health issues, together with her status as a woman alone without any financial or social support, I accept there to be a real chance she would be unable to secure employment or safe accommodation and become destitute if she returns to Sri Lanka, now or in the reasonably foreseeable future.
Whether the harm feared constitutes persecution
For the purposes of Australian law, ‘persecution’ is not defined but is further explained by ss91R(1) of the Act which sets out that persecution has three elements:
·the essential and significant reason or reasons for the persecution must be one or more of the following: race, religion, nationality, membership of a particular social group or political opinion; and
·the persecution must involve serious harm to the person; and
·the persecution must involve systematic and discriminatory conduct.
Is the harm feared for a Convention reason?
Having found the applicant faces a real chance of serious harm from her family if she returns to Sri Lanka, I have considered whether the harm she fears is for the essential and significant reason of her race, religion, political opinion, nationality or membership of a particular social group for the purposes of s.91R(1). While I accept the applicant is of Sinhalese ethnicity and Buddhist religion, I do not consider that the harm she fears will be directed at her for these reasons, nor for reasons of her nationality or political opinion.
I have considered the submission that the applicant will face harm because of her membership of a particular social group, ‘illegitimate young female, mistreated by step-family, with no protector and suffering from mental illness’. It is submitted that members of this particular social group in Sri Lanka are subjected to stigma which would result in persecution of the applicant.
I do not accept that such a group could be considered a particular social group for the purposes of the Convention. This is because such a group must be identifiable by a characteristic or attribute common to all members of the group, which cannot be the shared fear of persecution, and must distinguish that group from society at large. There must be an identifiable group of persons with a social presence in that country, set apart from other members of society, and united by their common characteristic, attribute, activity, belief, interest, goal, aim or principle.[2] I am not satisfied that the proposed group of ‘illegitimate young female, mistreated by step-family, with no protector and suffering from mental illness’ is an identifiable group of persons in Sri Lanka and set apart from other members of society by their common characteristics. Rather I consider the proposed group to be merely a list of attributes and vulnerabilities particular to the applicant.
[2] Applicant S v MIMA (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ and at [69] per McHugh J
In considering the reasons for the applicant’s mistreatment by her family, I consider that it may initially have been the result of the circumstances of her birth and her step-mother’s unwillingness to accept her into the family. However it appears that by the time the applicant was in her early to mid-teens and demonstrating signs of mental illness, her step-mother and step-sister were motivated in their behaviour towards her for reasons of her mental illness, demanding she be sent to live elsewhere and describing her as ‘mad’, ‘crazy’ and scaring the neighbours.
While there may be a number of reasons for the applicant’s mistreatment within her family in the past, I am satisfied that the essential and significant reason for any future mistreatment would be the applicant’s mental illness. In making that assessment I note DFAT’s advice that while investment in Sri Lanka’s health sector increased following the conflict, mental health services are scarce and institutional capacity to respond to mental health needs is weak:
Mental illness is not widely discussed in Sri Lankan society and the stigma attached to those who seek treatment discourages others from doing so. Anecdotal evidence suggests a high incidence of trauma-related illnesses following the conflict, especially in the Northern and Eastern Provinces. Collective trauma, a lack of mental health support and high unemployment, especially among the young, have contributed to an increase in alcohol and drug abuse, suicide, domestic and societal violence in recent years.[3]
[3] DFAT Country Information Report: Sri Lanka 23 May 2018 at 2.16
Other sources confirm DFAT’s advice as to the stigma attaching to persons suffering from mental illness and suggest that the stigma associated with mental illness in Sri Lanka is severe and is directed not only towards the ill person, but also towards their family. It reports that families keep mental illness hidden out of shame and fear, including fear that a person’s mental illness will negatively impact on other family members’ chances of marriage. Within the family, relatives with mental illnesses are viewed negatively if they are unable to contribute financially to the household. Part of the stigma is that the person is ‘useless’ and doesn’t contribute to the family.[4] This is consistent with the applicant’s own experience.
[4] The Stigma of Mental Illness in Sri Lanka: The Perspectives of Community Mental Health Workers, Namali Samarasekare, Matthew Lloyd Millins Davies, Sisira Siribaddana, Vrije Universiteit Amsterdam, 01 January 2012, CISEDB50AD118
In light of that information I accept that ‘persons suffering severe mental illness’ constitute a particular social group for the purposes of the Convention, that group being identifiable by the common characteristic of their severe illness and a cognisable group within Sri Lankan society.
In relation to the harm feared by the applicant by the Sri Lankan community more broadly, I accept that the essential and significant reasons for that harm are her mental illness and her gender. DFAT reports that despite having the best social indicators for women in South Asia, Sri Lankan women are under-represented in the labour force and parliament and over-represented in informal, low skill and low wage jobs. DFAT also assesses that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that few support mechanisms are available to women in these circumstances.[5] I consider that ‘women in Sri Lanka’ constitutes a particular social group for the purposes of the Convention, being identifiable by the common characteristic of gender and a cognisable group within Sri Lankan society.
[5] DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.84 – 3.89
For these reasons I accept the harm feared by the applicant is for the Convention reasons of her membership of the particular social groups ‘persons suffering severe mental illness’ and ‘women in Sri Lanka’ for the purposes of s.91R(1).
Does the harm feared constitute ‘serious harm’?
I have accepted the treatment suffered by the applicant at the hands of her family members in the past constitutes serious physical harassment or ill-treatment and that if she returns to her father’s home, there is a real chance she will again face harm including significant physical harassment and ill-treatment. I have further accepted that if she tries to live independently from her family in Kandy or elsewhere in Sri Lanka, the combined factors of her mental illness and her gender create a real chance she will be unable to find employment or safe housing and will be rendered destitute.
As to whether such treatment feared by the applicant rises to the level of serious harm, I note that s.91R(2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test:
(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.
In Chan v MIEA it was recognised that persecution has traditionally taken a variety of forms of social, political and economic discrimination.[6] Justice McHugh in Applicant A v MIEA, observed that:
Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.[7]
[6] (1989) 169 CLR 379 at 430 per McHugh J.
[7] (1997) 190 CLR 225 at 258, per McHugh J.
It is also well established that it is not necessary that the conduct complained of should be directed against a person as an individual. Harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, can amount to persecution if done for a Convention reason.[8]
[8] Chan v MIEA (1989) CLR 379 at 388 per Mason CJ, and at 429 per McHugh J.
An assessment of refugee status requires the decision maker to have regard to the totality of the circumstances. For example, the cumulative effect of a number of ‘lesser’ harms, which of themselves do not constitute persecution, may lead to the conclusion that the combined effect of the harm is sufficiently serious to constitute persecution.[9]
[9] S1891 of 2003 v MIMIA [2005] FMCA 1069 (Smith FM, 20 July 2005 at [30]-[31].
In the circumstances of this particular applicant, I consider that the cumulative effects of the discrimination directed at her for reasons of her membership of the particular social groups identified above may rise to the level of serious harm set out in paragraphs (b), (c) and (d) of s91R(2).
In making that assessment I give weight to my findings that if she returns to her father’s home, there is a real chance she will be subjected to mistreatment including severe physical harassment and ill-treatment for reasons of her mental illness. If she seeks to live independently from her family in Kandy or elsewhere, the combined factors of her mental illness and her gender create a real chance she will be unable to find employment of any kind and will be rendered destitute, causing her economic hardship that threatens her capacity to subsist.
For these reasons, I find there to be a real chance the applicant will suffer serious harm if returned to Kandy, Sri Lanka, now or in the foreseeable future and that harm will be directed at her for the combined reasons of her membership of the particular social groups ‘persons suffering severe mental illness in Sri Lanka’ and ‘women in Sri Lanka’.
Does the harm feared involve systematic and discriminatory conduct?
Section 91R(1)(c) requires that the feared harm must involve systematic and discriminatory conduct to constitute persecution. The Australian case law sets out that the terms ‘systematic’ and ‘discriminatory’ convey deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.[10] In light of the country information set out above, I accept that the conduct feared by the applicant involves systematic and discriminatory conduct motivated by her membership of the particular social groups ‘persons suffering severe mental illness in Sri Lanka’ and ‘women in Sri Lanka’.
Availability of state protection
[10] VQAD v MIMIA [2003] FMCA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38]
In this case, the harm the applicant fears will be perpetrated upon her by members of her family and the Sri Lankan community more broadly, all of whom are non-state agents. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm. For the reasons set out above I have found that the essential and significant reason for the harm feared by the applicant is her membership of the particular social groups ‘persons suffering severe mental illness in Sri Lanka’ and ‘women in Sri Lanka’.
As to whether the applicant can receive protection in Sri Lanka from the harm that she fears, DFAT reports that very few police officers are female, reducing the ability of women to report crimes and seek support. Although Sri Lanka’s civil and criminal law regard women as equal, the law reportedly favours men in relation to divorce, custody of children, property distribution and inheritance. Severe stigma is associated with mental illness in Sri Lanka and attaches not only to the person suffering the illness, but also their family[11].
[11] DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.85 and 5.10
In the above circumstances, I accept that the state of Sri Lanka cannot meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that I accept the applicant faces a real chance of persecution for reasons of her membership of the particular social groups ‘persons suffering severe mental illness in Sri Lanka’ and ‘women in Sri Lanka’ if she returns to Kandy, Sri Lanka now or in the reasonably foreseeable future.
Relocation
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court held that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.
The applicant is a [age] year old woman from Kandy, Sri Lanka who has suffered from severe mental illness for much of her life. I have accepted that prior to coming to Australia, she had lived only at her father’s home in Kandy and at a student hostel in [City 1], [Country 1]. I have accepted that she has been seriously harmed by her family in the past and that if she returns to her father’s home there is a real chance they will seek to harm her again. I have accepted that other than her father’s family, the applicant is entirely without family or support of any kind in Sri Lanka.
I have accepted that if she seeks to live independently from her family, the combined factors of her gender and severe mental illness create a real chance that she will be unable to find employment of any kind and rendered destitute. DFAT reports that an absence of family connections or a lack of financial resources can limit internal relocation options and many returnees have reported difficulties in obtaining necessities such as shelter, food, water and sanitation and rebuilding livelihoods.[12]
[12] DFAT Country Information Report: Sri Lanka 23 May 2018 at 5.24
Medical evidence referred to above indicates the applicant suffers from post-traumatic stress disorder and major depression including suicidal ideation. Her treating psychiatrist states that she continues to have great concerns about her mental health. In all of the circumstances of the applicant, I accept that relocation within Sri Lanka is not reasonable.
For these reasons I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore she satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Alison Murphy
Member

ATTACHMENT A - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2019] AATA 4800

11 July 2019

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