1801920 (Refugee)

1801920 (Refugee) [2023] AATA 2291 (20 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Galen Jaffurs
CASE NUMBER:  1801920
COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Rachel Da Costa
DATE:20 April 2023
PLACE OF DECISION: Sydney
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 20 April 2023 at 2:53pm
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – race – Tamil –imputed political opinion – applicant was suspected of supporting the LTTE – sexuality – homosexual – membership of particular social group – gay men – a homosexual man who expresses feminine attributes – fear of serious harm as a gay man if he returns to Sri Lanka is genuine – effective protection measures are not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91, 499
Migration Regulations 1994, 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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sri Lanka, applied for the visa on 14 October 2015. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information. He was born in [year] in [Village 1], [District 1] district, Sri Lanka. His parents are Sri Lankan citizens. He does not have the right to enter or reside in any other country. His ethnicity is Tamil and his religion is Hindu. He has never been married. He is in touch with his siblings and mother by phone about twice a week. He lived in Tamil Naidu, India as a refugee with his family from 1990 to 2004.
His father is deceased. His mother, two sisters and brother live in Sri Lanka. He has a brother in law (his [sister’s] husband) who lives in Australia. From birth to 1990, he lived in [Village 1], [District 1] district, Sri Lanka. From 1990 to 2004, he lived in different refugee camps in Tamil Naidu, India. From 2004 until he left Sri Lanka in May 2007, he lived in [Town 1], [District 1] district. He completed primary school and up to [a grade] in secondary school in Tamil Naidu. He speaks, reads and writes Tamil and a little English and he speaks Malay.
In India, he worked as a [occupation]. From 2004 to 2007 in Sri Lanka he was self-employed as a fisherman.
He departed Colombo airport in Sri Lanka on [date] May 2007, travelling on his Sri Lankan passport issued on [date] 2005. A smuggler took his passport from him in [Country 2]. He overstayed his visa in [Country 2] but he registered with the UNHCR and had a card. From May 2007 to October 2009 he was in [Country 2]. From October 2009 to June 2010 he was in [Country 3]. He arrived at Christmas Island by boat on [date] June 2010 as an unauthorised maritime arrival.
He attached a copy of his Sri Lankan national identity card and his United Nations High Commissioner for Refugees (UNHCR) documents.
Evidence before the Department
Protection visa application
In his protection visa application form, the applicant states that his claims are set out in the decision of his Independent Merits Review (IMR) dated 22 December 2011 and the attached statutory declarations.
In his statutory declaration made 20 August 2010 in support of his Refugee Status Assessment made 6 October 2010, the applicant makes the following claims:
·     He fled Sri Lanka because he was suspected to be a member of the LTTE.[1] He has never been a member of supporter of the LTTE.
[1] The LTTE is the Liberation Tigers of Tamil Eelam. See DFAT Country Information Report Sri Lanka 23 December 2021 (DFAT Report) at 2.2.
·     When he was [age] years old, his family fled to Tamil Naidu in India because of fighting between the LTTE and the Sri Lankan government in their town.
·     In 2004, they returned to [Town 1] town in [Village 1], Sri Lanka during the truce. The applicant worked with a friend as fishermen.
·     Their town was under the control of the Sri Lankan Army (SLA). The LTTE came to the area and spoke to the people about their beliefs. The applicant and his family went to the meetings because they had no choice. They were observed by the SLA and CID[2].
[2] The CID is the Criminal Investigation Division of the police.
·     The applicant’s mother had a brother in the LTTE. He came to their house sometimes to visit during the truce period. After the truce collapsed, they had no contact with the brother and do not know what happened to him.
·     Because of his mother’s brother’s visits and the applicant being a fisherman, the SLA thought they were supporting the LTTE.
·     The applicant was falsely suspected of transporting people and goods between Sri Lanka and India for the benefit of the LTTE.
·     In 2006 and 2007, the applicant was jailed twice. On the first occasion, he was accused of being an LTTE supporter and was released after a court hearing. He was beaten and kicked while in jail. On the second occasion, he was released after fifteen days because his family paid a bribe.
·     The police, EPDP[3] and Karuna and similar groups started to look for him. This was because they gained approval from the government if they shot Tamils.
·     The applicant went to live with his mother’s eldest sister in [District 1] district for a while. Then he moved to his father’s sister’s house in [District 1] district. While he was staying there, police and army came to the house, falsely accused his aunt and her family of having weapons and put them in jail. The applicant was not home at the time of the arrest.
·     The applicant’s father decided the applicant should leave Sri Lanka for his safety. In around May 2007, the applicant’s father arranged for the applicant to leave. He had the help of a Muslim man who helped the applicant arrange a passport and travel to [Country 2]. The applicant went to Colombo and stayed in this agent’s house for five days without leaving his property.
·     He flew to [Country 2] and registered with the UNHCR. He did various jobs during the two years he was there. A friend introduced him to a smuggler who agreed to take him to Australia.
·     In January 2009, his father was shot by forces supporting the SLA. They had come to the house of the applicant’s parents looking for him. They threatened his father to tell where the applicant was hiding, and pushed him and shot him. The police did not take any action.
·     The boat the applicant was on from [Country 2] was captured by the [Country 3] navy and taken to [a location]. He was on this boat for [a period of time]. During that time, their photos were taken and sent to the Sri Lankan government.
[3] Eelam People’s Democratic Party. See DFAT Report 3.4.
The applicant made an additional statement in preparation for his IMR interview, in response to the findings of the RSA decision in his case, made on 6 October 2010, which was negative.
In this statement, the applicant provides the following additional or relevant information:
·     His aunt was not arrested after he came to stay at her house, but before that. She was arrested in 2005. He does not know why he said it was after he came to her house and that was an error.
·     His brother is living back in [District 1] but mostly in hiding. He is frightened of the paramilitary groups.
·     Because he was on the boat in [Country 3], he would be recognised by the Sri Lankan authorities as having sought asylum. Because the authorities will know from his travel documents that he has sought asylum, he will be harmed.
In his IMR interview on 20 July 2011, the applicant provided the following additional relevant information:
·     His boat was frequently stopped by the Sri Lankan Navy. Other than this, he did not have any run-ins with the authorities.
·     The first time he was arrested, he was told he was suspected of supporting the LTTE. He was detained and then brought before a court. The court found there was no evidence he was involved with the LTTE and dismissed the case.
·     A few days later he was arrested again at the docks. He was held and freed when his parents paid a bribe. He does not know why the was captured this second time.
·     The first aunt he stayed with lived in a village about 10km away. The second aunt he stayed with for about eight months.
The IMR decision made on 22 December 2011 was in the applicant’s favour and found he met the criterion for a protection visa.
In his statutory declaration dated 16 February 2016, made in support of his protection visa application, the applicant makes the following claims:
·     He continues to rely on all the evidence he has provided previously including his statutory declaration dated 20 August 2010 and his statement submitted for his IMR.
·     He is afraid because of his long stay in Australia. He thinks the Sri Lankan government will think the reason he has been protected for so long in Australia is because he has links to the LTTE.
·     Paramilitary groups are still active and his mother has told him they have come to her house asking about him. About six months ago they demanded money from her. He fears being kidnapped or killed if he returns.
·     He is wanted by the Sri Lankan government because of his suspected LTTE links and because he was detained on the [boat].
In a further written statement dated 26 June 2017, provided before the applicant’s scheduled interview with the Department in relation to his protection visa application, the applicant makes the following significant new claims:
·     He is gay and fears returning to Sri Lanka because of his sexuality.
·     He was afraid to disclose this information earlier because he lived in Sri Lanka, India and [Country 2] where homosexuality is not accepted.
·     He has only recently become courageous enough to tell some people about his sexuality but he still keeps it and his relationships very private.
·     He never sought to develop a homosexual relationship in Sri Lanka or India because being homosexual is not accepted there and people are at risk of harm from the authorities and their families.
·     He first realised he was attracted to men when he was living in [Country 2]. He had a brief sexual relationship with his roommate.
·     In Australia, he has felt more comfortable with his sexuality and had a relationship with another man. They met about two years ago at a gay club in Sydney. They keep their relationship secret because they are scared they will be stigmatised by the Sri Lankan community in Sydney and that the community may inform their families in Sri Lanka about their relationship. He has felt ashamed and guilty about his relationship.
·     The applicant is scared that if he is forced to return to Sri Lanka, he will be physically and mentally harmed or even killed for being gay. He fears his family will not accept him and will harm him. He fears the Sri Lankan authorities will target, harass and discriminate against him. He does not feel he can be openly gay in Sri Lanka without being harmed.
Interview with the delegate
On 25 September 2017, the applicant attended an interview with the Department to discuss his application for a protection visa. In that interview, the applicant provided further detail about his time in [Country 2], the current situation of his family in Sri Lanka, the problems he experienced with the SLA in Sri Lanka including his two arrests and the circumstances of his detention and release, his stays with his aunts, his time on the [boat] and how and when he obtained his Sri Lankan passport.
In addition, the applicant was asked about his new claim to be homosexual. The delegate questioned him about his claimed same-sex relationship in [Country 2] and his current claimed relationship in Australia with a man he met in Sydney, as well as his involvement with the gay community more generally in Sydney.
Post-interview submissions
On 5 October 2017, the applicant’s representative provided post-interview submissions in support of the applicant’s claims. The submissions summarise the applicant’s protection claims, including his membership of the particular social group ‘gay men’. The submissions address various concerns raised by the delegate in the interview about aspects of the applicant’s evidence relating to what he claims happened to him in Sri Lanka, including in relation to his imputed political opinion in support of the LTTE and refer to various sources of country information that discuss the risk of human rights abuses of Tamils in Sri Lanka.
The submissions go on to address the applicant’s claims about being gay and refer to guidelines, including from the UNHCR, on how interviewers and decision-makers should approach such claims and how they should question applicants. It is submitted that aspects of the delegate’s questioning relied on certain assumptions or expectations about how the applicant ought to have behaved in particular situations and that this approach was flawed. It is submitted that in the applicant’s circumstances, as a legally vulnerable person from a rural area in Sri Lanka who fears stigma from the Tamil community, his choice not to disclose his sexuality earlier was credible. In relation to the situation for gay men in Sri Lanka, the submissions refer to the DFAT Report, a 2016 Report by Human Rights Watch and material from the UNHCR. It is submitted that the cumulative effect of the country information is that based on his profile, the applicant would face a real chance of serious harm from the Sri Lankan authorities as a gay man in Sri Lanka, that he cannot be required to hide his sexuality or act discreetly, that he will suffer discrimination, and that he would not have the protection of the police.
The delegate’s decision
On 9 January 2018, the delegate made his decision. In his decision, the delegate reviewed the applicant’s claims for protection and the decisions that had been made at each stage of the process. The delegate set out the applicant’s most recent statement in which he made the claim to be gay and considered the evidence given at the interview. In relation to the applicant’s claims to have been arrested and detained twice in Sri Lanka, the delegate set out a number of concerns he had about the credibility of this claim, including relating to the applicant’s evidence about the timing of obtaining his passport and changes in his evidence about his aunts. The delegate also had concerns relating to the credibility of the applicant’s claims about the level of SLA interest in his family due to him having an uncle in the LTTE and this being the cause of his father being shot by people connected to the SLA while they were looking for the applicant. The delegate did not accept that the applicant having been on the [boat] would make him a person of concern to the Sri Lankan authorities. In relation to the applicant’s claim to be gay, the delegate had a number of concerns about the applicant’s evidence, including inconsistencies in his evidence and aspects of his evidence being vague and lacking in credibility. Based on the evidence, the delegate was not satisfied that the applicant is gay. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 25 January 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
Pre-hearing submissions
On 25 March 2023, the applicant’s lawyer provided the following documents to the Tribunal:
·     Legal submissions dated 25 March 2023 in support of the application for review
The submissions summarise the reasons the applicant fears returning to Sri Lanka, based on his imputed political opinion of being pro LTTE, his ethnicity as a Tamil and his membership of the particular social groups of a homosexual man and a homosexual man who expresses feminine attributes.
It is submitted that the Tribunal should pay particular attention to the findings of the IMR reviewer who found the applicant was a credible witness and accepted his account of events in Sri Lanka. It is submitted that the risks faced by the applicant are more than remote and viewed individually and cumulatively, he would suffer persecution if he returned to Sri Lanka.
The submissions go on to refer to country information about the risks faced by Tamils who are actual or perceived former LTTE members or supporters. It refers to the DFAT Report, as well as a 2021 report by the United Nations Office of the High Commissioner for Human Rights which indicates significant risks remain for someone like the applicant. The submissions refer to the UK Upper Tribunal decision of KK and RS[4] and the Sri Lankan government’s sensitivity to the re-emergence of any Tamil separatism. It is submitted that the applicant’s profile, including his presence on the [boat], is likely to lead to significant adverse interest in him and persecution. It is submitted that the applicant’s circumstances and profile mean he would be considered to be equivalent to a high-profile former LTTE member and to pose an ongoing threat to the regime and he therefore faces a real chance of serious harm.
[4] KK and RS (Sur place activities: risk) [2021] UKUT 130
It is also submitted that as an LGBTI person in Sri Lanka, the protections available are practically non-existent. It is submitted that based on the applicant’s profile, which includes his intention to be open about his sexuality, he would attract adverse attention. The submissions refer to the DFAT Report and a 2021 United Kingdom Home Office Report on LGBTI individuals in Sri Lanka which discuss the criminal nature of same-sex sexual acts and the use of other laws to harass LGBTI people. It is submitted that LGBTI people in Sri Lanka face a range of stigma, harassment, abuse, discrimination and pressure from society, particularly if they come from rural areas and lower socio-economic backgrounds like the applicant. It is submitted that the current economic crisis will further exacerbate the problems faced by the applicant.
·     Statutory declaration of the applicant dated 24 March 2023.
In his statutory declaration, the applicant explains his work and living circumstances in Australia. He says he has probably suffered from depression since being in Australia and sought help for a time but it did not work for him. He is worried about the Tamil community finding out that he is gay so he hides his sexuality from them. He is also worried about his family in Sri Lanka finding out. He explains how he has found a group of gay friends with whom he can be himself. They are mainly from [Country 2]. He explains how he goes about dating and seeing men in Sydney. He states that he is shy but also gay and he now has more confidence to talk about his sexuality and to be himself.
The applicant provides updated information about his family’s situation in Sri Lanka. He claims that his mother told him last year some people had come to her home asking about him. He reiterates that he fears returning to Sri Lanka due to being suspected of being LTTE. He also claims to fear returning to Sri Lanka as a gay person. He says he has never come out to his family and their culture and town is very conservative. He fears that if he returns to his home village he will be rejected and the community will force him out.
The applicant claims that living in Sri Lanka as a gay man he would be at risk of being beaten and killed. He would have to hide who he is in order to be safe. He would be ostracised and could not survive. If he acts as a gay man, he would be rejected by everyone.
·     Statement in support from [Mr A] dated 22 March 2023
Mr [A] explains that he met the applicant at a gay party in 2020. They became close friends. He confirms the applicant is gay and he knew some of the men he got together with. He says the applicant is shy and is worried about expressing himself openly at the wrong time and the Sri Lankan community finding out about his sexuality, but he is becoming more open. He says it would be hard for the applicant to hide the fact that he is gay.
·     Statement in support from [Mr B] dated 22 March 2023
Mr [B] says he has known the applicant since 2021 when they met at a party held by mutual friends. They now meet regularly and are good friends. Mr [B] knows the applicant is gay and he uses dating apps to meet other men. He goes to gay clubs in the city. He says that seeing the applicant socialise in these environments, there is no doubt the applicant is gay and he can be very feminine. Around straight people, the applicant is more reserved and hides his real self. He takes particular steps to hide his sexuality around other Sri Lankans because he is worried about them finding out and the potential backlash. The applicant is worried about what would happen if it became known he was gay and he had to return to Sri Lanka.
·     Statement in support from [Ms C] dated 25 March 2023
Ms [C] explains that she is [a Country 2 national] and lives at the same property as the applicant. She says she knows the applicant is gay, she has seen him socialising with the same-sex community. She thinks he hides his sexuality around Sri Lankan Tamil people because he is afraid of discrimination and social isolation from that community. He is worried about his family in Sri Lanka finding out he is gay. He was previously in a relationship with a [nationality deleted] man. She thinks it would be hard for him to hide his sexuality if he went back to Sri Lanka.
The hearing

The applicant appeared before the Tribunal on 28 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review and his representative attended the hearing.
Nationality
The applicant claims to be a citizen of Sri Lanka and provided to the Department a copy of the bio-data page of his Sri Lankan passport issued on [date] 2005, as well as some other identity documents. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sri Lanka. The Tribunal finds Sri Lanka is the applicant’s receiving country for the purpose of assessing his claims for protection. The Tribunal finds that the applicant does not have the right to enter and reside in a third country.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In the Tribunal hearing, the Tribunal discussed with the applicant his family, education, migration history, sexuality and relationships, and why he fears returning to Sri Lanka. When talking about his sexuality and relationships, the Tribunal found the applicant to be an honest and credible witness. He gave his evidence in a clear and considered way and was able to speak with insight and reflection on his emotions and experiences in a manner that indicated to the Tribunal that he was telling the truth rather than recounting a rehearsed set of claims. The Tribunal has concerns about the credibility of other aspects of the applicant’s evidence discussed in the hearing which was less clear and involved differences over time. However, for the reasons set out below, this does not change the Tribunal’s decision in this case and it is not necessary to consider those matters further.
The applicant’s sexuality
In the Tribunal hearing, the applicant gave evidence that in Australia, he lives with a [Country 2 national] couple in their late [age] who have no children. He likes them and they like him because he behaves well. The statement of support he has provided from the person called ‘[Ms C]’ is the wife in the couple. The applicant was working for a [company] and now he is working as a [occupation]. He speaks Tamil and English.
The Tribunal notes that in the interview with the delegate, the applicant was not asked about his feelings and experiences growing up in terms of his sexual identity and coming to realise he was gay. The Tribunal explored this with the applicant in the hearing.
The applicant explained that being gay means to him that he is not attracted to females. Even from childhood or when he was young he had thoughts, but it was not until after he left Sri Lanka that he felt this more. The thoughts were things like the way he walked was different and a bit ‘girlish’. Most of the time he didn’t play with boys and preferred playing with girls. The boys used to laugh at him and embarrass him. The boys played cricket and he wasn’t interested and didn’t join them. He started feeling attracted to men when he was around [age] or [age] years old, but didn’t know it. He was worried about it and whether he had some kind of disease or illness. He knew there were one or two people like that in Sri Lanka and India and people would mock them and make fun of them so he could not bring this out. When he was [age] or [age] he started to understand a bit more.
The first intimate contact he had with a man was while living in the refugee camp in India. There was an older ‘brother’ (not a relative) who used to come to their house. At first, the applicant was afraid of him but then he started looking for this person. They had a sexual relationship, but later the applicant felt that this person had used him. They were able to find private places to go because in the camp lots of houses were vacant. The applicant was in love with this person and wanted to be intimate with him, but this person just wanted sex and then left the applicant. After returning to Sri Lanka with his family, the applicant didn’t have any contact with other gay people. He said the whole village were his relatives and if he had done something he would have been attacked. In India, it was easier because it was a third country and there were lots of people around.
The applicant has never experienced life in Sri Lanka as a gay man in terms of trying to express his sexuality there. His first same-sex relationship was with his roommate in [Country 2]. They lived in a small house with other people and had to sleep near each other. At first, the applicant was not attracted to this person, but they used to sleep next to each other and so little by little it started. The relationship did not last for very long.
The applicant first came out to people in Australia. He had [Country 2 national] friends here who he could talk to. He met one of them on [social media]. They met up in the city. Through that person he met other [Country 2 people] and those are the people he has become friends with, including the people he lives with. He started slowing distancing himself from Sri Lankan people he knew in Sydney. He knows Tamil people in Sydney and if he sees them he smiles at them, but he mostly avoids them. He is worried about them making fun of him and saying something if they find out he is gay. He thinks they used to suspect him of being gay and if he was with a group of Sri Lankan men, they used to mock him even though they didn’t actually know he was gay. He knows some gay Tamil people in Sydney and is in contact with them, but the [Country 2] group is his proper group of friends now.
He has not come out to his family in Sri Lanka. In the past, his mother didn’t speak to him about marriage and he thought that she understood him because he used to do things like cooking, which was a bit different from other males, but he has realised she doesn’t understand him. He thought he could tell her about being gay but now she has started talking about marriage which scares him. The applicant said he used to speak to his mother often but he doesn’t like talking to her now because she is ‘torturing’ him to find a girl and get married. Now when they speak, they just have a quick chat and then he gets off the phone.
He is afraid that if he tells his family, they will all come to know he is gay and they will stop talking to him, cut off contact with him and keep away from him. At least now he can talk to them. Also, he is worried that because his family and relatives all live in the one village, if people find out he is gay, they will think his siblings are also gay and will talk about the family openly and tell everyone. He said that his siblings and his mother live in the same [village], [District 1] district in Sri Lanka. His mother lives with his younger sister and her family. His family don’t have any particular problems in Sri Lanka and the situation for them is much better than 10 years ago.
In Sydney, he goes to the city with friends, goes to a gay club, dances and feels good. He used to go every two weeks but now it’s just when people are free. He started doing this when he met the [Country 2 people]. They have regular parties at the applicant’s house. He didn’t do this when he was with the Sri Lankan guys. He hasn’t told his work colleagues that he is gay. He does not try to hide it, but he only tells people who he is comfortable with and who are true to him. He recently came out to a friend whom he has known for six or seven years. He said the friends who have provided the statements of support would be willing to speak to the Tribunal if necessary and would confirm what is in their written statements.
In terms of living as a gay man if he had to return to Sri Lanka, the applicant said he could not show his sexuality in Sri Lanka. In his family and village, nobody would accept it. Instead of telling people and being beaten, he says it would be better not to tell them. While his family is financially better-off than some people, they are very traditional and conservative and if he tells them he is gay, they will think a ghost is inside him and would beat and kill him. He feels danger from his relatives and that other people generally would mock him, not respect him and think he is a bad person. He can’t go back to Sri Lanka and show his true identity anywhere. The authorities have this same negative attitude towards gay people. He is not afraid anymore of being open about being gay, but he is afraid of what would happen to him if he went back to Sri Lanka and told people. He would stand out because of the way he walks and uses his hands and he used to be mocked in the village for this. Now, as a man who is not married and who is like this, people could attack him because of the stigma.
When he came to Australia, initially he didn’t say anything about being gay, including in his protection visa application, because he wanted to hide it. Having seen gay people living happily and independently in Australia, he has gained confidence and trust and has come a long way personally and he does not want to hide who he is anymore.
The applicant’s oral evidence was consistent with the statutory declaration he provided prior to the Tribunal hearing about his sexuality. The Tribunal accepts his evidence about this.
Findings
The Tribunal accepts that the applicant is from the north of Sri Lanka. The Tribunal accepts that he is a gay man and this has been part of his identity since he was young, although he only came to understand it as time went on. The Tribunal accepts that the applicant had a physical relationship with another male while he was living in India, but did not have any relationships or contact with other gay people in Sri Lanka after his family returned from India, at least in part because he was scared of the consequences. The Tribunal finds that the applicant’s understanding and acceptance of his sexuality and his confidence in this has grown since he has been in Australia and he now lives, and intends to continue to live, openly as a gay man. The Tribunal accepts that the applicant has not told his family in Sri Lanka that he is gay because he fears being ostracised by them and others. The Tribunal accepts that the applicant has deliberately distanced himself from the Tamil community in Sydney because he is worried about people in that community, and his family, finding out that he is gay. The Tribunal accepts that the applicant has what some people may regard as some ‘feminine’ mannerisms that he tries to hide depending on the circumstances and that people noticed this even when he was young and he has been mocked for it.
The Tribunal accepts that although the applicant is a fairly private person, if he returned to Sri Lanka he would want to live openly as a gay man and that if he were to hide his identity as a gay man in Sri Lanka it would be out of fear of serious harm rather than any personal wish to be discreet. The Tribunal accepts that the applicant’s family is financially comfortable compared to some people in their area but not wealthy, and that they are conservative and live in a rural (not urban) area in the north of Sri Lanka. The Tribunal is prepared to accept that the applicant’s family would not accept or support him if he returned to Sri Lanka and told them he was gay and that they, or other relatives, may physically harm him as a result. The Tribunal accepts that the applicant’s mother is pressuring him to find a girl and get married. The Tribunal accepts the applicant’s fear of serious harm as a gay man if he returns to Sri Lanka is genuine.
The Tribunal finds that the applicant has some skills as a fisherman and labourer and that he speaks Tamil and English. The Tribunal finds that if he returned to Sri Lanka, his socio-economic status would not be high, particularly without family support.
Does the applicant meet the refugee criterion?
The Tribunal has considered whether being a homosexual in Sri Lanka makes the applicant a member of a particular social group.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal finds that being a homosexual in Sri Lanka is a particular social group as defined by s 5L as the characteristic of being homosexual is shared by each member of the group and the applicant shares this characteristic. Further, the characteristic is an innate or immutable characteristic and is so fundamental to the member’s identity the member should not be forced to renounce it, and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic is not a fear of persecution.
The Tribunal has considered whether the applicant would face a real chance of serious harm if he returned to Sri Lanka in the foreseeable future due to being homosexual.
In the hearing, the Tribunal discussed with the applicant country information relating to the situation for homosexuals in Sri Lanka. The applicant also provided country information about the situation, as referred to above, and the Tribunal has taken this material into account in making its decision.
The current DFAT Report on Sri Lanka states as follows in relation to Sexual Orientation and Gender Identity:
Sexual Orientation and Gender Identity
3.107 Freedom of sexual orientation is not protected under the Constitution and same-sex intercourse is a criminal offence, even when consensual. Lesbian, gay, bisexual, transgender and intersex (LGBTI) advocates have recommended, as part of the constitutional reform process, inclusion of gender identity and sexual orientation as a fundamental right in the Constitution’s equality clause (Article 12.2). Sri Lanka’s National Action Plan for the Protection and Promotion of Human Rights does not include sexual orientation and gender identity as a basis for protection against discrimination.
3.108 Sections 365 and 365 (a) of the Penal Code make it a criminal offence to engage, respectively, in ‘carnal intercourse against the order of nature’ and ‘acts of gross indecency’. These are commonly understood to apply to sexual acts between same-sex individuals and can attract sentences of up to 10 years’ prison and a fine. Human Rights Watch reports several prosecutions between 2017 and 2020, which included forced anal and vaginal inspections to ‘prove’ gay or lesbian sexual conduct. Local sources report the recent conviction and jailing of two men, one of them a police officer, for same-sex sexual activity; the punishment was reduced to a fine upon appeal. According to local LGBTI sources, police use sections 365 and 365 (a) of the Penal Code or the Vagrants Ordinance (which empowers authorities to detain people considered to be loitering in public) to threaten, harass, extort money and sexual favours, and arbitrarily arrest and detain LGBTI individuals.
3.109 Equal Ground, an LGBTI advocacy group, in its 2017 mapping study, found that 46.7 per cent of LGBTI people in Sri Lanka (willing to participate in the study) had experienced police harassment. LGBTI victims of abuse and harassment, including by the police, are generally unwilling to file complaints due to safety concerns and a reluctance to bring attention to their sexual orientation, meaning incidents go largely unreported.
3.110 No legislation exists to protect LGBTI individuals from discrimination or hate crimes. According to local sources, LGBTI individuals are widely seen as ’sexual deviants‘ and routinely experience discrimination and bullying in the workplace and the education and health care systems. Local sources told DFAT that openly-gay couples face obstacles to securing housing and accommodation. As a result, many LGB individuals seek to conceal their sexual orientation (transmen and transwomen are sometimes less able to conceal their status). In its May 2021 study of LGBTI inclusion at work in Sri Lanka, Equal Ground found that 42 per cent of LGBTI workers were not ‘out’ at work; 58 per cent stated they had experienced verbal harassment, and 23 per cent reported leaving their job as a result.
3.111 Transgender individuals, particularly male-to-female transgender people, are considered particularly vulnerable and are more likely to experience discrimination. Employers are reluctant to hire transgender individuals, and DFAT has received accounts of transgender individuals being dismissed from their jobs due to their gender identity. Transgender individuals are also more likely to encounter obstacles gaining access to basic services that require identity documents. In 2016, the Ministry of Health established a Gender Recognition Certificate, which allows someone to change their legal gender and amend government-issued identity documents, including National Identity Cards (NICs). However, to do so is a long and complex process; according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, one must undergo psychiatric evaluation by a medical professional, receive a diagnosis of ‘trans-sexualism’ based on the International Classification of Disease, and undergo hormone and surgical treatment before being issued a Gender Recognition Certificate. A Gender Recognition Certificate is available only to individuals aged 18 years or older. Hormone treatment and gender reassignment surgery services are scarce and expensive.
3.112 According to local sources, the LGBTI community faces threats, harassment and forced heterosexual marriage from family and other members of the community. Some middle and upper class, educated and urban Sri Lankans are open about their sexuality within their family and community circles; however, risks are higher for lesbian and bisexual rural women due to more traditional familial expectations and values. DFAT considers reports of violence in the home and public spaces to be credible, and many LGBTI individuals – especially Muslims – hide their identity to avoid harassment. Local sources told DFAT that some families pressure LGBTI individuals to seek treatment to ‘cure’ their same-sex sexual orientation at dedicated profit-making centres or through witchcraft. Local sources told DFAT that hostility toward LGBTI individuals was ‘across the board’ and was not confined to a particular ethnic group or geographic area. Some LGBTI individuals have chosen to relocate to larger centres, especially Colombo, which have larger LGBTI communities and support networks.
3.113 According to local sources, lesbians face added difficulties in being open about their sexuality. Sources told DFAT that being a woman in Sri Lanka, as a patriarchal society, was challenging in itself, and the challenge of being a lesbian was greater still. Lesbians are reportedly pressured by their families into heterosexual marriage and face harassment in public, including on public transport.
3.114 Hate speech against the LGBTI community is common on social media, including against those who advocate for LGBTI rights. In 2016, critics, notably Sinha Le, published threatening comments on social media relating to the 12^th Annual Gay Pride Festival and prevented Equal Ground from holding a promotional event at the Good Market in Colombo. Organisers cancelled some public events; police provided protection for participants at others. According to local sources, police protection of LGBTI individuals at public events such as LGBTI marches has increased since 2015. One source identified conservative religious groups as posing particular threats to the LGBTI community.
3.115 LGBTI individuals have few support mechanisms. Only a small number of local NGOs support LGBTI rights, through advocacy or provision of services. The most prominent of these, Equal Ground, provides legal aid and advice to LGBTI individuals and mental health counselling. Equal Ground has operated a counselling hotline for LGBTI individuals since 2005, available in Sinhala, Tamil and English — the only such service in Sri Lanka. Support groups like Equal Ground are concentrated in urban areas.
3.116 According to local sources, anti-LGBTI sentiment is deeply ingrained in Sri Lankan culture and society, particularly in rural areas. The majority of Sri Lankans hold conservative views about sexual orientation and gender identity, and many prioritise collective values over individual rights. DFAT assesses that LGBTI individuals in Sri Lanka face a moderate risk of official discrimination and a moderate level of societal discrimination on a day-to-day basis. The level and frequency of discrimination differs, depending on the socioeconomic status, religion and geographic location of the individual. DFAT also assesses that transgender individuals face a high level of official and societal discrimination compared to other members of the community, and a moderate risk of violence.

The US Department of State 2022 Country Report on Human Rights Practices: Sri Lanka[5] states that:
A 2021 report from Equal Ground, an organization that advocates for LGBTQI+ rights in the country, documented that approximately 10 percent of LGBTQI+ persons who responded to a national survey had experienced physical assault due to their sexual orientation or gender. Some LGBTQI+ persons reported that they feared being arrested for their sexuality if they went to police.
[5] (accessed 19 April 2023)
Recent news reports indicate that the Sri Lankan government has announced that it will decriminalise homosexuality and the President has stated his support for this.[6] For Tamil people in the north of Sri Lanka, there is a small pro-LGBT space in Jaffna and in 2021 and 2022, Pride month celebrations were held. Commentary indicates that despite this, the situation for LGBTI Tamil people in the north and east is not easy and these LGBTI spaces struggle to exist.[7] While there is country information that suggests the situation for LGBTI individuals is easier in Colombo where there is a larger population, there are also reports of arrests and abuse by police and in the Tribunal’s view, country information again suggests that socio-economic status and family support is likely to be important.[8]
[6] Homosexuality to be decriminalised | The Morning; Sri Lanka government announces support for bill decriminalising same-sex relationships (gaytimes.co.uk) ; CEDAW’s Landmark Decision on the Criminalisation of Same Sex Conduct Between Women – EJIL: Talk! (ejiltalk.org) (accessed 19 April 2023)
[7] Jaffna Tamils celebrate Pride Month with annual Rainbow Pride Walk | Tamil Guardian; Bringing Pride Month to Northern Sri Lanka | International Republican Institute (iri.org); Jaffna Sangam: Decentralising queer spaces | The Morning; Tamil LGBTQ voices face even greater risk in Sri Lanka | Tamil Guardian (accessed 19 April 2023)
[8] DFAT Report 3.112; UK Home Office Country police and information note: sexual orientation and gender identity, Sri Lanka, November 2021 at (UK Home Office note) (accessed 19 April 2023)
In the Tribunal’s view, the country information referred to above indicates that most Sri Lankans hold conservative views about sexual orientation and gender identity and that same-sex sexual conduct is illegal. Although these laws are not widely enforced, they exist and along with other laws are used by the authorities to threaten, harass, extort money and sexual favours, and arbitrarily arrest and detain LGBTI individuals, which may include violence. While the government has announced that it will decriminalise homosexuality, that has not happened yet and legislation does not exist to protect LGBTI individuals from discrimination or hate crimes. Hate speech against LGBTI people is common on social media. As LGBTI people are seen by many as ‘sexual deviants’ they commonly experience discrimination and bullying in the workplace and the education and healthcare systems. Many individuals therefore conceal their sexual orientation in an effort to protect themselves. LGBTI people can face pressure from families to enter heterosexual marriage to treatment to ‘cure’ them, as well as violence and ostracization. There are few support services available. Anti-LGBTI sentiment is deeply ingrained in Sri Lankan culture, particularly in rural areas. The Tribunal considers that even if homosexuality is decriminalised in Sri Lanka, cultural change is likely to be slow. DFAT assesses that LGBTI individuals in Sri Lanka face a moderate risk of official discrimination and a moderate risk of societal discrimination on a day-to-day basis, and that the level and frequency of discrimination differs depending on socio-economic status, religion and geographic location of the individual.
As set out above, the Tribunal has found that the applicant is a gay Tamil man and he has some ‘feminine’ mannerisms. He did not feel comfortable expressing his sexuality when he lived in Sri Lanka and was mocked at times by people when he was growing up due to his demeanour. His family is conservative and live in a rural, rather than urban, area in the north of Sri Lanka near many relatives and would not accept or support him in Sri Lanka if they found out he is gay. The Tribunal accepts that the applicant may experience physical harm from family or relatives if he came out to them in Sri Lanka as gay. His socio-economic status if he returned to Sri Lanka would not be high. His mother has been pressuring him to find a girl and get married. The Tribunal accepts that the applicant wishes and intends to live openly as a gay man.
Having considered the applicant’s claims and evidence and taking into account the Tribunal’s findings in the context of the country information referred to above, the Tribunal considers that based on the applicant’s profile, including his ‘feminine’ mannerisms, lack of family support and resulting socio-economic status, if he returned to Sri Lanka in the foreseeable future, as a gay man there is a real chance he would experience the types of discrimination, ostracization and harassment described above, and potentially more than this, including violence. Given the atmosphere of hostility towards LGBTI people across Sri Lankan society and the lack of community and official support, combined with the more general difficulties that can be faced by Tamils living in the north of Sri Lanka,[9] the Tribunal finds that the type of behaviour that would be faced by the applicant, especially on a cumulative basis, may reach the level of serious harm in the form of significant physical harassment or significant physical ill-treatment. The Tribunal does not consider the chance of this to be remote or far-fetched.
[9] See, eg, DFAT Report 3.13; (accessed 19 April 2023)
Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of his membership of a particular social group, namely, homosexuals in Sri Lanka, and there is a real chance that he would be persecuted for this reason if he returned to Sri Lanka in the foreseeable future. For the reasons explained above, based on the country information and the applicant’s profile, the Tribunal finds that the real chance of persecution relates to all areas of Sri Lanka.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of his membership of a particular social group, it involves serious harm to him and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant.
In light of the country information referred to above, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Sri Lankan State and that the Sri Lankan State is not willing to offer such protection. In this context, the Tribunal notes that the UK Home Office note states at 2.5.5 that ‘effective protection in individual cases is often unavailable and in general, the state appears able but unwilling to offer effective protection. As such, the person will not be able to avail themselves of the protection of the authorities.’ Accordingly, the Tribunal finds that effective protection measures are not available to the applicant in Sri Lanka.
The Tribunal accepts the applicant’s evidence that if he returned to Sri Lanka he would feel compelled to behave in a discreet manner to hide his sexuality out of a fear of serious harm and that it is his wish and intention to live openly as a gay man. The Tribunal is satisfied that the applicant cannot take reasonable steps to modify his behaviour in future so as to avoid a real chance of persecution in Sri Lanka because it would require him to alter his sexual orientation or gender identity or conceal his true sexual orientation and gender identity. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of his membership of the particular social group, namely homosexuals in Sri Lanka.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, he is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Rachel Da Costa
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2291

20 April 2023

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