1724014 (Refugee)

[2022] AATA 3428

1724014 (Refugee) [2022] AATA 3428 (10 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Andrea Main

CASE NUMBER:  1724014

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:         10 August 2022 at 10:47 am

DATE OF WRITTEN RECORD:                10 August 2022

PLACE OF DECISION:  Melbourne

Statement made on 10 August 2022 at 3:26pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – child applicant born in Australia while parents’ protection visa applications in progress – taken to have applied for protection at birth – father’s application refused – department seemingly unaware of applicant’s birth at that time, and refused her application separately later – mother and sister’s application granted – father departed Australia – family violence and mother’s harassment and assault in community in home country – ethnicity and gender – Tamil woman and girls – mother’s mental health – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 36, 46A, 48A
Migration Regulations 1994 (Cth), r 2.08; Schedule 2

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.

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 on 30 August 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 10 August 2022, I made an oral decision. The following is the written record of the decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is [an age]-year-old child, born in Australia to Sri Lankan parents. I accept that, by virtue of decent, the applicant is a citizen of Sri Lanka and assessed her claims against Sri Lanka as her country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes. I also find that the applicant cannot avail herself of a right to enter and reside in a third country.

4. The applicant was born in Melbourne on [date] to Sri Lankan citizens, [Mr A] and [Ms B]. At the time of her birth, both parents held bridging visas. The couple have an older daughter, [Ms C], who was born on [date] in Sri Lanka. [Mr A] arrived in Australia by boat [in] July 2012. [Ms B] and [Ms C] arrived in Australia by boat [in] November 2012.

5. [Mr A] applied for a Subclass 866 Protection visa on 12 December 2012. Regulation 2.08 sets out that if a non-citizen applies for a visa and has a child after the application is made, but before it is decided, the child is taken to have applied for a visa of the same class at the time they are born. As such, the applicant was taken to have applied for protection.

6. No unique claims for protection were put forward on behalf of [the applicant] at the time of application. Departmental records suggest that the Department was not aware of the applicant’s birth at the time the decision was made in respect of [Mr A]’s visa application. As such, her application proceeded independently.

7. [Mr A]’s visa application was refused by a delegate of the Minister for Immigration on 11 June 2014. He applied to the Tribunal for merits review of that decision, which was affirmed by the Tribunal (differently constituted) on 13 May 2016. He then applied for judicial review, but the matter was dismissed by the Federal Circuit Court on 8 November 2017. On 30 August 2017, [the applicant]’s visa was refused, primarily on the basis that her father did not hold a protection visa.

8. [Ms B] applied for a Subclass 790 Safe Haven Enterprise visa on 30 August 2017, after the Minister issued a written notice allowing her to make a valid application under section 46A of the Act.[1] [The applicant]’s sister, [Ms C], was included as a secondary applicant on their mother’s application. [The applicant] could not be included because she was subject to a section 48A bar, resulting from her protection visa application refusal.

   [1] Section 46A(1) of the Act restricts unauthorised maritime arrivals from making a valid visa application. The Minister can issue a written notice that s46A(1) does not apply if they believe it is in the public interest to do so.

9. [Ms B]’s application was approved by the Department and Subclass 790 visas were granted to both [Ms B] and [Ms C] on 5 May 2022.

10. On 9 December 2021, the applicant’s representative advised the Tribunal that [Mr A] departed Australia. Departmental records confirm that he departed Australia on 24 February 2020. She further advised that [the applicant] wished to proceed with the current application because she had her own claims for protection. The claims were not set out in the email.

11. On 16 May 2022, the applicant’s representative made submissions detailing the claims put forward on behalf of [the applicant]. A signed statement made by [Ms B] on 13 May 2022 accompanied the submissions.

12. [Ms B] was first invited to appear before the Tribunal at a hearing on 23 May 2022. However, prior to the hearing, the applicant’s representative contacted the Tribunal to request that it make a favourable decision on the papers. She made submissions and provided evidence that [Ms B] and [Ms B]’s claims had been accepted by the Department. I agreed to adjourn the hearing in order to consider the new evidence.

13. The submissions of 16 May 2022 contained the following information:

    ·[The applicant] is [an age]-year-old girl who is of Tamil ethnicity and Hindu religion. Her mother was born in [Village], Vavuniya District, in the Northern Province of Sri Lanka and her father was born in [Town 1], Central Province. Her mother’s family still reside in Vavuniya District in the Northern Province.

    ·The applicant’s mother and father are separated. [Mr A] returned to Sri Lanka and [the applicant] now lives with her mother and sister.

    ·[The applicant], her sister and her mother are survivors of family violence perpetrated by [Mr A]. [Ms B] is a survivor of a sexual assault by a police officer and harassment by several police officers in Sri Lanka.

    ·[The applicant] would be at risk of serious harm from her father, members of her father’s family, men in the community and police or other authorities in Sri Lanka.

    ·The family would be denied state protection due to their gender and ethnicity.

    ·Violence against women and girls is common and often goes unaddressed by police and Sri Lankan authorities. Those in the north are at particular risk.

    ·It would be a perverse outcome for [the applicant] to be returned to Sri Lanka as an unaccompanied minor because her mother and sister are owed protection.

14. The statement of [Ms B] provided more detail on the claims set out above. The statement was prepared with the assistance of an interpreter in the English and Tamil languages.

    ·[The applicant] was present when [Mr A] assaulted her mother and sister.

    ·[Mr A] threatened to take [the applicant] from her mother.

    ·Rates of physical and sexual violence against women and girls are high in Sri Lanka. As an unmarried single Tamil woman, [Ms B] would not be able to provide effective protection for [the applicant] in Sri Lanka.

    ·[The applicant] would have no male relatives who could support her in Sri Lanka. She could not return to the care of her father because she would be at risk of family violence.

15. [Ms B] also advised that she speaks to [the applicant] primarily in Tamil, because that is the language she is most comfortable using. [The applicant] understands short sentences in Tamil but only speaks, reads and writes in English.

16. [Ms B] provided copies of two additional statements that were submitted to the Department in support of her own claim for protection, the first was made on 2 August 2017 and the second was made on 5 November 2021. In addition to the information previously discussed, the statements outlined that:

    ·When [Ms B] first arrived in Australia, she was questioned by an officer from the Immigration Department. During that interview, she did not discuss her or her family’s association with the LTTE and she did not discuss her past sexual abuse.

    ·[Ms B] claimed to be separated from her husband in both the statements of 2017 and 2021. She would like a divorce, but [Mr A] would not sign the necessary paperwork.

    ·In 2017, [Ms B] had [siblings] living in Australia and [siblings] in Sri Lanka. Her father passed away in 2019 and in 2021 her mother was in the care of her brother [Mr D] in Sri Lanka, and her sister who was previously in Sri Lanka had moved to [Country 1].

    ·[Ms B] and [Mr A] were married [in] November 2009 and lived in [Town 2], where [Mr A] is originally from. [Ms B] was forced into the marriage by her family.

    ·[Ms B] expressed the view that her husband was of interest to the Sri Lankan Criminal Investigation Department (CID). He attempted to flee Sri Lanka, but he was cheated by the migration agents and forced to return to Sri Lanka. He again fled Sri Lanka in 2012 when he arrived in Australia by boat.

    ·After [Mr A] fled Sri Lanka, CID officers visited [Ms B] twice to question her about his whereabouts. The officers threated to kill [Mr A] and [Ms C].

    ·Three weeks before [Ms B] fled Sr Lanka, she was sexually abused by a CID officer while her niece and daughter were in the home. The officer ran from the house when he heard a neighbour checking on [Ms B] due to the noise.

    ·[Ms B]’s brother, [Mr D], felt he could no longer protect her in Sri Lanka and organised her boat travel to Australia. He has a wife, [children] and cares for their mother.

    ·[Ms B]’s other brother does not have a relationship with the family. They do not keep in touch.

    ·After [Ms B] fled Sri Lanka, CID visited her parent’s home to ask about her whereabouts. Her parents told the officers that [Ms B] was in Australia and they became angry. They threatened to sexually assault her and kill her if she returned to Sri Lanka.

    ·When [Ms B] arrived in Australia, she told [Mr A] about the sexual assault. He started to abuse her from that time.

    ·[Mr A] was physically, emotionally and sexually abusive towards [Ms B] during their relationship. He would beat her in front of the children. He would also beat, bite and pinch their eldest daughter.

    ·[Ms B] reported [Mr A] to Victoria Police and an intervention order was granted. Even after the couple were separated and the intervention order was in place, [Mr A] would stalk and assault [Ms B].

    ·[Mr A], his older brother and mother visit [Ms B]’s mother in Sri Lanka because she wants a divorce. On one occasion, when she wouldn’t open the door, they broke the gate and yelled swear words at her.

    ·[Mr A]’s brother and sister live in Australia. They call the applicant and abuse her over the phone.

    ·In 2021, the applicant said her mental health had deteriorated. She was prescribed medication by a General Practitioner. A few years prior to making the statement, she attempted suicide and the hospital referred her to a counsellor for psychological support. She was no longer seeing a counsellor due to the cost.

17. On 14 June 2022, I issued a summons to the Department, requiring that it provide a copy of the file relating to [Ms B]’s protection visa application. On 27 June 2022, the Departmental file was received by the Tribunal.

18. [Ms B] appeared before the Tribunal on 10 August 2022 to give evidence and present arguments on behalf of [the applicant]. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

19. The day before the hearing, the applicant’s representative provided the Tribunal with a copy of a Family Violence Final Intervention Order issued by the Magistrates’ Court of Victoria on [in] January 2017 against [Mr A]. The order was made for the protection of [Ms B] and [Ms C] and [the applicant]. The application was made by [Constable E] and [Mr A] was in attendance at Court.

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

21. 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).

22. 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.

23. The Department of Foreign Affairs and Trade (DFAT) reports that violence against women is common in Sri Lanka. Local sources told DFAT that violence against women occurs throughout the country, across all ethnic groups and social strata. Violence against women is most common in domestic settings. DFAT assesses that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence, and that support mechanisms are available to women in these circumstances, but they are often inadequate.[2]

    [2] Department of Foreign Affairs and Trade, Country Information Report Sri Lanka, 23 December 2021.

24. Having considered the information contained in the Departmental files of both [Ms B] and [the applicant], the documentary and oral evidence provided to the Tribunal, I make he following findings of fact:

    ·[The applicant] is [an age]-year-old female of Sri Lankan nationality, Tamil ethnicity and Hindu religion. She currently resides outside her country of nationality.

    ·The applicant’s mother and sister were victims of family violence perpetrated by her father.

    ·The applicant, along with her mother and sister, were protected persons under the Family Violence Protection Act 2008 (Cth).

    ·The applicant’s father was repatriated to Sri Lanka by the Australian Government when his application for protection and subsequent appeals were denied.

    ·A delegate of the Minister for Immigration determined that it was unsafe for the applicant’s mother and sister to return to Sri Lanka and they are owed protection in Australia.

    ·The applicant would be returned to Sri Lanka as an unaccompanied minor, or into the custody of her father.

    ·As a minor, the applicant would find it difficult, if not impossible, to independently seek protection against violence from Sri Lankan authorities.

    ·The applicant would not be protected against family violence perpetrated by her father in Sri Lanka.

    ·The applicant has a well-founded fear of persecution in Sri Lanka for reasons of membership of a particular social group – being female Tamil, Hindu, children and victims of family violence.

25. Owing to that well-founded fear of persecution, I find that the applicant is unable or unwilling to avail herself of the protection of Sri Lanka.

26. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

27. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.

    Sheridan Lee
    Member