1807390 (Refugee)

1807390 (Refugee) [2022] AATA 4216 (5 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nathan Willis (MARN: 1467692)
CASE NUMBER:  1807390
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Melissa McAdam
DATE:5 October 2022
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 05 October 2022 at 10:21am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – domestic violence – abusive and controlling husband – particular social group – women in Sri Lanka – gender-based violence – state protection – internal relocation – single older woman outside of her home and family area – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 16 March 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 10 May 2017.
The applicant was represented in relation to the review.
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.
SUMMARY OF Claims and evidence
Protection visa application
The following is a summary of the claims and information the applicant provided in her Protection visa application:
a.She was born in [year] in Negombo, Sri Lanka. She submitted a copy of her Sri Lankan passport.
b.She is married and her husband is in Sri Lanka. They married in 1987 and separated in October 2012. She has a daughter born in [year] who is in Australia on a Student visa. She also has a son born in [year] who is in Sri Lanka. She has a niece and nephew in Australia.
c.Her father and sister live in Sri Lanka. Her mother is deceased.
d.She is Sinhalese and of Roman Catholic religion.
e.Her marriage was an arranged marriage. Her husband is a doctor and devout Buddhist. Their marriage was troubled from the very start and after a couple of years her husband's temper began to spiral out of control. Once they had children, his behaviour deteriorated. He started getting angry with the children, insulting them, degrading them and threatening them with violence. His anger at the applicant also began to get worse and worse.
f.In around 1992 the applicant and her husband were living with the applicant’s parents and younger sister. The applicant’s younger sister met a man she wanted to start a relationship with. She asked her father for permission. One day the applicant and her husband had dinner at their house. The applicant’s father said that he gave permission to the applicant’s sister’s relationship. The applicant’s husband was very much against it, and threatened that if the applicant’s sister married the man he would leave the applicant and go away. After that there was significant animosity in the house. The applicant’s father was very concerned about this situation, so he withdrew his permission to the applicant’s younger sister.
g.After this the applicant’s husband began getting very violent and was frequently smashing items around the house. So on or around early 1992 the applicant’s mother, father and younger sister left the house and left the applicant with her husband. The applicant told her parents to let her younger sister continue with her relationship and she did.
h.The applicant’s sister's fiancé had lived in the same village the applicant’s husband was from. The applicant understood later that in her husband's family there had been issues. Her husband's mother had had a child outside of marriage. Her husband's brother had a second marriage. It seems her husband was concerned that through her sister’s fiancé the applicant or their social circle would discover this information and he would be shamed.
i.The applicant’s husband would recall past events and then fly into rages. In around 1995 he recalled a past event and became very angry at the applicant. Then he started verbally abusing her using sexually crude language, saying "why don't you go fuck yourself", also saying things about the applicant’s mother having sex with other men. He then became enraged and struck the applicant so hard that she fell to the ground. He then leapt on her and put his hands around her neck and began to squeeze. She started blacking out. It struck her that if she died there would be no one who could look after her daughter. She found the strength and pushed him back. He fell back and the applicant fled.
j.Their faith difference also contributed to the animosity between the applicant and her husband. He resented and would abuse the applicant for her faith. He would frequently make lewd comments about her having a sexual relationship with the priests.
k.He would also verbally abuse and scold the applicant in public places. Once he was holding her violently in the house. There was a knock on the door. Her husband said 'that's probably a patient, tell her I'm not here'. He then commanded the applicant to open the door. She did and it was a young girl. The applicant said 'my husband is not here'. But then her husband appeared behind her and said, "why are you lying?" He would do things deliberately to shame the applicant and make her appear weak or incorrect.
l.On or around May 1992 the applicant’s sister was married and the applicant’s husband forbid her to go to the wedding. One of her husband's elder brothers held the applicant by force and prevented her from leaving.
m.For around 17 years the applicant was not allowed to visit her parent's house and her family were not allowed to see her. She had about 30 cousins and she was forbidden to attend any of their functions or weddings. If her husband saw her family's vehicles he would become enraged at the applicant believing they had come to visit her. Her husband did not let her leave the house except to purchase items for the store and to help out with the Catholic church. At times he forced her to do sexual things that she did not want to do.
n.In around April 2012 the applicant fell sick with Dengue fever. Despite being a doctor her husband accused her of faking the sickness and refused to care for her. She called her father and younger sister and they took her to hospital. When she was discharged, her father came and took the applicant to his house to care for her. Her husband came the next day and broke in saying "if you are keeping this woman in your house I will kill you to teach her a lesson or I will kill her and her daughter." She believed he may murder them. He would say things like "Wherever you are I will find you" and "you cannot escape from me".
o.There were no domestic violence services in Negombo, the only option is to report the violence to the police. In the applicant’s case this is not an option. Sri Lanka is a very patriarchal country, police in Sri Lanka don't take domestic violence seriously and would not take her word against her husband. Her husband was extremely well-known in the Negombo area. He also provided free medicine to the police force in the region. All the lawyers and governmental leaders in the applicant’s region were friends with her husband. He was treated with a great deal of respect in the region and would frequently talk about his high level connections.
p.There is no way that the applicant could relocate to another part of Sri Lanka. She doesn't have family networks outside the Negombo region and would face serious subsistence challenges caring for herself and her daughter.
q.This abusive situation continued for so many years. The fights, violence and rage continued in the house for many years. Her children grew up and her mother fell sick. It was only after she died in 2009 that her husband allowed the applicant to see her family, if only briefly. She spent as much time as she could helping at the church.
r.When her son grew up, he began to fight with the applicant’s husband whenever her husband verbally abused her or threatened to hit her. This situation became more and more heated, and she began to consider sending her son to Australia to continue his studies. Her son went to [an Australian university] in 2009. When he completed his studies, he returned to Sri Lanka. He is living with the applicant’s father.
s.During this time the applicant’s daughter was growing up and living with them and was also being frequently verbally abused by the applicant’s husband. At the time she was around [age]. One time, her daughter was getting behind in her studies so the applicant arranged a tutor. After the tutor left her husband used to mock their daughter saying she was "fondling his penis". He regularly used sexually degrading language saying "you fuck with other men". Often he would come into the bedroom at night and wake the applicant and her daughter up with abusive, sexually degrading language.
t.The applicant left Sri Lanka [in] October 2012 to support her daughter in her study visa in Australia. She initially came to Australia on a Student Guardian visa. On this date she separated from her husband although she has not yet formally divorced him.
u.She returned to Sri Lanka on [date] as her daughter turned 18 and the applicant’s Student Guardian visa was due to cease. She returned to Australia [in] December 2012 on a Tourist visa.
v.Since being in Australia she has been attending a psychiatrist who has been treating her for posttraumatic stress disorder.
w.She fears that if she were to return to Sri Lanka she would be subjected to the violence and abuse perpetrated by her husband. There is no protection or state services available for women in her position.
x.She fears that for reason of her husband's belief in his dominance and his rage at her that wherever she goes he will harm her by trying to teach her a lesson. Her fear is based on her earlier experience and what she understands of the position of women in situations similar to her. She fears that the police will take the word of her husband over her word. In Sri Lanka domestic violence is not acknowledged or taken seriously by the authorities
y.She would not be safe if she returned to Sri Lanka due to the fact that wherever she goes her husband will seek to find her and punish her for leaving him. If she moved to another part of Sri Lanka she would experience significant subsistence challenges.
Departmental Interview, 27 February 2018
The following is a summary of the claims and information the applicant provided in her Department Interview:
a.The applicant stated she had nothing to change in the information provided.
b.The applicant previously travelled to India, in around 2002, when she took her mother for treatment in India.
c.She lives in Brisbane with her son and daughter and her sister’s daughter. Her son is in Australia with her. He went to Sri Lanka in 2016 but he returned here in November 2017. He returned because he received a permanent residence visa.
d.Her family in Sri Lanka are her sister, her sister’s husband and her father. Her mother is deceased. She contacts her sister and father every week. Her husband lives in the same town as her father and sister but in a different house. It is the house where the applicant lived with him in Sri Lanka.
e.She is working casually for people she knows in [specified] jobs. Her daughter and niece are both employed. Her father also helps support the family. He is a successful businessman and has many [businesses]. He also owns buildings he leases to people. He runs [his businesses].
f.She and her family are of Roman Catholic religion. Her children are Roman Catholic but her husband is Buddhist.
g.She fears returning to Sri Lanka because she suffered in her marriage for [years]. She could not bear it anymore and took the children and came to Australia. Her husband is a doctor. It was an arranged marriage. From the time she married he would humiliate her on many occasions. When the children were born it escalated into an unbearable situation. She and her husband lived in her ancestors’ home with her father and sister. When a boy came to request permission to see the applicant’s sister the applicant’s husband, who had huge anger management issues, started fighting and said that if the boy married the applicant’s sister it would scar the family and he would throw the family out. He became very abusive from that point on. He was extremely abusive to the applicant using bad language. The applicant’s father could not bear it so did not give consent to the applicant’s sister marrying the boy.
h.The situation worsened. The applicant’s parents and sister decided to move to another house they owned. The applicant then told her parents to allow her sister to marry the boy. The applicant facilitated the marriage to happen but her husband did not allow the applicant to attend the wedding.
i.After that the applicant’s husband ensured the applicant had no communication with her family. They were not allowed to go to the applicant’s place and the applicant was not allowed to go to them. The applicant was a housewife at the time. Only her son was born.
j.For 17 years until the applicant’s mother died, her husband did not allow the applicant to have contact with her family. She really suffered during this time. The applicant’s husband was suspicious the applicant was having contact with her family. He became very abusive and aggressive. He damaged a lot of property and he humiliated her in front of his friends.
k.There was an incident where her husband’s friend, another doctor, came to the house. Her husband told her to tell the man her husband was not at home. The applicant responded that she would not lie. Then her husband took her to a room, and took her son from her, and he threw the child onto the wall. Her son was around [age] then. She was frightened, her son had a big bump on his head but was not otherwise hurt. He was crying. She was helpless and had no one to tell.
l.The applicant was subservient and obeyed all her husband’s commands. She could not communicate to her parents because her husband threatened her all the time. Her family were worried she would get in trouble if they contacted her so they left her alone.
m.Two aunts would visit the applicant because they were in her husband’s good books. The applicant would tell them a limited amount of information and they would tell the applicant’s parents. They were in her husband’s good books because they were patients of her husband.
n.There were times when her son would disagree with her husband as he grew up. He would mentally trouble them but she can’t remember many things now. Her two children were good students and did their exams well. The son was selected to study [subject]. The son and the father were abusive towards each other and the applicant feared her son would get hurt so she decided to send the son to Australia to separate them. During this time she spoke to her father about these things.
o.When the applicant’s daughter was born her mother came to the house and forced her way in to see the applicant. From then her parents were allowed to come visit off and on, depending on her husband’s mood. The applicant’s mother was a [patient] but the applicant’s husband did not allow the applicant to take care of her when she was ill.
p.The applicant’s father helped the applicant to send her son as a student to Australia. The applicant was having a tough time because of her decision to send her son to Australia. Her husband did not want him to study outside Australia. But the applicant did not want her son exposed to the conflict with her husband.
q.There was a tutor who would teach the applicant’s daughter maths. The applicant’s husband would abuse her daughter with very bad language when the tutor was there. It was a humiliating experience for her daughter. The day she sat her [exam] the applicant told her they should attend the church mass and that whatever is done he is her father and she should worship him. But when they went home, the applicant’s husband just ignored the daughter and got into the car and almost ran her over.
r.In the initial stages of marriage her husband would not say anything when the applicant attended mass. But in the latter part of the marriage he became abusive about religion and the applicant attending church. He did not object to the applicant’s son being baptised, but he objected to her daughter being baptised and an elder had to intervene. He did not insist that the children were raised Buddhist. They lived in Negombo which is a predominantly Catholic town so the environment was very Catholic. Her husband was from a very remote hamlet in central Sri Lanka. Because they lived in a predominantly Catholic area it took dominance over his wishes.
s.There was some relaxation about five years before she came to Australia that her parents were allowed to visit the applicant but not her sister. Because of the disagreement about the marriage of her sister to the boy her husband never forgave them. The boy was from her husband’s village. The applicant assumes, but is not sure, that there were complications in her husband’s family and children from different parents and her husband feared the applicant would learn of this through the boy. She thinks he was fearful. He was very snobbish. He also had behavioural issues during his early ages with his cousin. If he had been honest to her about these things it would not have been a problem.
t.When her mother was falling sick the applicant would take a taxi to visit her because she could not bear seeing her mother ill. The applicant’s husband accompanied the applicant to take her mother to India in 2002.
u.He confronted the applicant many times about coming to Australia. She was sleepless for a long time because he was confronting her all the time. Her idea was to flee and give her son freedom. Her son was mentally stronger than her daughter. Her husband would humiliate her daughter in many ways. She would have a bath and there would be a knock at the door and her husband would expect her to get out of the bath and go to the door in a towel to tell people he was not there. She would cry and feel humiliated. He would use abusive language against her.
v.Her husband would humiliate the applicant in front of their workers. There were a lot of confrontations at home but the applicant was determined to separate her son from her husband. Her husband would never agree to it. He never gave his approval.
w.After 17 years, with her husband’s permission, she went to her parents’ place to attend to her mother’s funeral.
x.After her son left the situation continued at home with the applicant and her daughter. In 2012 the applicant fell very ill with fever. When she told her husband this he told her she was faking illness and scolded the applicant in front of a relative who was visiting. The applicant called her father and sister who took her to a specialist who tested the applicant and found she had Dengue Fever. Her father took the applicant to his house. The applicant called her husband to tell him she was going to her father’s place. Her husband went there and screamed at the applicant from the garden. When the applicant was taken to the hospital he called the hospital not to take her and that she should go to his clinic. When she arrived at the hospital she was almost unconscious and put on saline.
y.Her daughter could not go home as she had nowhere to go because her husband was screaming. The applicant was discharged from the hospital after 4 days and then was at her father’s place for a couple of weeks. While she was there her husband would call and she stopped answering his calls because she could not answer what he was saying. Her husband started a confrontation with the applicant’s father at his house. The applicant had to pull them apart and push her husband out of the house. He almost broke the door, came inside again and threatened to kill the applicant and her father.
z.The applicant could not go to the police about her husband because he would give them medical services free of charge so they felt obligated to him. In Sri Lanka they treated him like a god so there was no point in telling the police. Even if she made a complaint, before she arrived home, her husband would know. This is the situation with police in Sri Lanka.
aa.The applicant never thought of leaving her husband because she believed things would get better. She is also Catholic so is an obedient wife. The applicant’s father also told her that she had to endure and he would not give her a home if she left her husband. He told her it is humiliating when the applicant’s husband comes to the house and shouts and the neighbours hear. In Sri Lanka a wife is not supposed to leave her husband. The applicant felt hopeless when her father told her she had to go to her husband’s place. She and her daughter returned there very fearful. They felt very helpless.
bb.The applicant did not tell her husband that her daughter was coming to Australia to study. She was just crying at home when the issues became unbearable. She would debate with herself and God about why her husband is punishing her. There was a prayer group the applicant attended without the knowledge of her husband. The applicant met a counsellor there who advised her that her daughter should be separated and found another place to study. She was advised to take the daughter away.
cc.The applicant went to an agent who was sending students to Australia and made all the arrangements without her husband’s knowledge. She told her husband that her son was doing his exams and wanted the applicant to stay with him for a month. That was how she managed to get her daughter to Australia.
dd.The applicant’s father provided the funds for the financial support for the applicant’s daughter’s study in Australia.
ee.Her father and sister were aware the applicant was taking the daughter to Australia. They thought the applicant and her daughter needed to be taken out of the environment. The applicant’s father changed his mind about the applicant staying with her husband after what he had seen. He told the applicant to take the children and go away and not come back to Sri Lanka to live.
ff.The applicant can’t think of going back to Sri Lanka after five years. She cannot believe the sense of freedom she has now. She can now think about divorcing her husband but she doesn’t think he will agree to that. She has no contact with him. She came in 2012. They were in contact by telephone for the first few months but not since. He had thought she was just coming to Australia to see her son for a month.
gg.After a month the applicant told her husband she would continue staying in Australia and gave a future date for her return. He would become abusive and the applicant would not continue the conversation. He would call her frequently and the applicant stopped answering so after a while he gave up trying to call her. He would call her son but her son would avoid the calls. The applicant’s daughter did not want to talk with her father either.
hh.When her son went back to Sri Lanka he stayed with her parents. Her husband visited her son a couple of times. Her son went back to Sri Lanka in October 2016.
ii.Her husband did not visit the applicant’s family while the applicant and her son were in Australia. Her husband realised the applicant had escaped and wanted a change. In about the middle of 2013 he told the applicant’s sister that the applicant has done these things and she would be taught a lesson.
jj.She does not know what would happen to her if she returns to Sri Lanka. She cannot separate from her husband in Sri Lanka because he has a lot of connections and contacts. She can easily be identified. For example she went to see a surgeon one day and was recognised there as her husband’s wife. She cannot live alone in Sri Lanka. She only has her sister and father there. It is not the culture for her to live away from her family in Sri Lanka. She can’t live with her father and burden him. He is getting too old to support her. She does not know what her husband will do if she returns to Sri Lanka.
kk.When her husband visited her son in Sri Lanka after he returned there she had advised her son not to have a confrontation and to be peaceful with him. So he had a good time and no confrontation.
ll.The applicant’s daughter has a lot of anxiety and is attending counselling also.

The applicant submitted copies of the following materials with her application:
-     A letter from a Catholic church priest confirming that the applicant is a member of the parish in Brisbane and that she and her daughter are active members of the church.
-     A letter from the coordinator of a Brisbane Catholic group confirming that the applicant is involved in the group.
-     Character references from other church members.
-     A letter from the applicant’s treating psychiatrist, dated 11 July 2017, stating that the applicant suffers from debilitating and chronic PTSD with secondary depression, due to 19 years in a violent and abusive marriage. The psychiatrist has been treating the applicant since May 2014.
In a supplementary written statement the applicant explained she delayed applying for a Protection visa because she held a valid visa and didn’t want to share information about her difficulties in Sri Lanka with anybody for some time. She built trust with some people at her church and was finally able to share some of her past circumstances. She also met people from an agency assisting women with urgent assistance who listened to her story and advised her to apply for a Protection visa. They prayed for her and referred her to a migration agent firm. In late 2016 she met with the firm and obtained further advice. She remained reluctant but finally realised she had no other option so applied for the Protection visa in May 2017. After she departed Sri Lanka her husband told her sister that he was angry at the applicant for leaving Sri Lanka and bringing their daughter with her. He said that if the applicant returns he would teach her a lesson.
Delegate’s Decision
The Delegate found that the applicant’s claim of suffering past domestic violence from her husband was not credible. The Delegate was not satisfied that the applicant had a well-founded fear of persecution in Sri Lanka, or that she was owed complementary protection.
Information to the Tribunal
Pre-Hearing Submission
On 7 September 2022 the applicant provided the following written information to the Tribunal:
a.A copy of the 2021 USDOS Human Rights Country report for Sri Lanka.
b.A copy of the 2012 UK Home Office COI Report for Sri Lanka.
c.A Statutory Declaration from the applicant’s daughter in which she describes the years of abuse she and her mother suffered from her father in Sri Lanka.
d.A letter from a Consultant Psychiatrist, dated 11 August 2022, stating that the applicant has a “clear protracted history of PTSD and Major Depressive Disorder stemming from her past complex trauma.”
e.A copy of a 2013 RRT decision.
f.A copy of the applicant’s 2017 Divorce Application in the Brisbane Registry of the Family Court.
g.A copy of the applicant’s Sri Lankan passport issued [in] 2021.
h.A submission from the applicant’s representative in which he outlines that the applicant fears harm in Sri Lanka on the following grounds:
-Her membership of the particular social group of women who experience domestic violence in Sri Lanka.
-Her membership of the particular social group of women who are a female head of household in Sri Lanka.
-Her membership of the particular social group of women who have influential husbands in Sri Lanka.
-Her membership of the particular social group of women who suffer Post-Traumatic Stress Disorder (PTSD) in Sri Lanka.
-On the basis of the Complementary Protection criterion.
Tribunal Hearing
The applicant appeared before the Tribunal on 15 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant’s father, younger sister and her sister’s husband are living in Sri Lanka.
b.In Australia her son and daughter work and the applicant does some [specified] work.
c.In Australia she spoke to a person in her community about her problems in Sri Lanka and the person gave her the phone number of a domestic violence place. The applicant rang the number and they gave her the details of a woman in a church community and told the applicant the woman would help her. The applicant went to see the woman about four or five times. There were other people like the applicant present and the woman gave them tea and information. The applicant told her the details of her problems. The woman eventually connected the applicant with a lawyer. This was in about 2015.
d.Even though it has been about ten years since the applicant left Sri Lanka her husband will still try to harm her because he will want revenge on her for leaving, coming to Australia, and not returning to Sri Lanka.
e.She doesn’t have any connection with her husband so she doesn’t know anything about him currently. She and he would speak in the beginning when she first came here but not since. Her husband has never visited Australia.
f.Her daughter and son have no connection with her husband anymore. Her son has left Sri Lanka and is now living with the applicant in Australia. Her son last had contact with her husband about 4 or 5 years ago.
g.Her parents in Sri Lanka sometimes see her husband in Sri Lanka because they live in the same area. They will speak briefly with him but they don’t have good relations with him.
h.Her father is [age] years old and her husband is [age] years old, [age] years older than the applicant.
i.The applicant can’t live somewhere else if she returns to Sri Lanka because she will have nowhere to live except with her father. Her husband is very famous in their area. He has a lot of connection with police and lawyers who prosecute.
j.In Australia she can sleep well and go to church when she wants and see who she wants. She can serve and help others. She could not do this in Sri Lanka. She can find work in Australia. The people in the church help her. She would like to work in childcare one day.
k.She is not yet divorced as her father refused to serve the papers on her husband in Sri Lanka. None of her relatives were willing to go see the applicant’s husband. She would like to be divorced but she doesn’t know what to do as her family there don’t want to give the papers to her husband.
The applicant’s daughter, [Ms A], also gave the following evidence at the hearing:
l.Her father was extremely abusive to her mother and her. On one occasion he tried to stab her.
m.It was too much for her mother to find another way to complete her divorce in Australia. She totally gave up on it mentally. Some seniors at their church suggested the applicant obtain an annulment through the church and they had discussions about it. However her mother was too exhausted and she said she rather enjoy the freedom than go through the paperwork and repeating her story yet again, all the time having to seek help. So she gave up on the idea of divorce and annulment for the time.
n.[Ms A] has had contact with the woman at the church who was counselling her mother regarding the abuse she had suffered
Country Information
DFAT’s most recent ‘Country Information Report Sri Lanka’, published in December 2021, contains the following:
Women
The Constitution guarantees that no citizen shall be discriminated against on the grounds of sex. Sri Lanka is a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Optional Protocol. Although civil and criminal law regard women as equal, the law favours men in relation to divorce, custody of children, property distribution and inheritance. Sri Lanka ranked 90th out of 189 countries in the UNDP’s 2019 Gender Inequality Index. Sri Lankan women are highly educated: more women graduate from university than men and, according to the UNDP, more than 82 per cent of Sri Lankan women aged 25 or over have received some secondary education.
Sri Lanka has the best social indicators for women in South Asia, including low rates of maternal mortality and high rates of educational attainment, although these have not translated into greater political or economic participation. In practice, gender norms and other barriers to female engagement in society and the economy mean Sri Lankan women are significantly under‑represented in the labour force and parliament, and over‑represented in informal, low-skill and low-wage jobs. Nearly two-thirds of Sri Lankan women do not participate in the labour force. The World Economic Forum, in its 2021 Global Gender Gap Report, ranks Sri Lanka 116 out of 156 countries for economic participation and opportunity, indicating a high degree of inequality between men and women.
…
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. Survey data from 2019 by the UNFPA indicated that 28 per cent of women had experienced some form of physical or sexual violence in their lifetime and 6 per cent of women and girls aged over 15 had experienced intimate partner violence within the previous 12 months. Among women who suffered intimate-partner violence, only 18 per cent had sought help from the police. The UNFPA, in February 2018, reported that more than one-third of female homicides in Sri Lanka were related to intimate-partner violence.
The Prevention of Domestic Violence Act (2005) criminalises rape and domestic violence, but marital rape is considered an offence only in cases where the individuals are legally separated. Sexual harassment is an offence under Section 345 of the Penal Code with a maximum penalty of five years’ imprisonment; perpetrators of sexual harassment may also be ordered to pay compensation to their victims. Sexual harassment of women is common, particularly on public transport, but is rarely reported — according to a 2017 UNFPA study, 90 per cent of Sri Lankan women and girls had experienced sexual harassment on public buses and trains, only 4 per cent of whom had sought help from the police. …. Local sources report that women fear a lack of empathy from the police, lack of support services, and sensationalist treatment of any case in print and social media. Sources told DFAT that police are not adequately trained in collecting evidence in cases of sexual assault, and lack rape kits for evidence collection.
The Government provides legal aid and counselling for victims of gender-based violence, including through Legal Officers attached to the National Committee on Women and Assistant Counselling Officers attached to Divisional Secretariats. A wide range of NGOs offer a number of services for women in need including legal, counselling and other forms of support.
The police have established Women’s and Children’s Desks at some police stations and hospitals, including in Tamil-populated areas. The Ministry of Health, in partnership with non-government organisations, maintains district hospital-based medical services for sexual assault victims. Local sources told DFAT that state-provided support services for women had improved, but gaps remained, which often had to be filled by NGOs. While NGOs are increasingly active in this space, non-state support services for victims of gender-based violence are still relatively scarce and lack funding overall.
There are five women’s shelters in all of Sri Lanka, including one in the Northern Province (in Jaffna, operated by Women In Need). The inability of women using the shelters to be accompanied by their children over the age of five was cited by local sources as a major deterrent to women seeking shelter. Sources considered the scarcity of women’s shelters to be a major gap in the response to gender-based violence. Local sources told DFAT that police and judicial responses to gender-based violence were inadequate and, where instances of domestic violence were reported, women were often told to return to their partners and resolve the matter within the family unit.
Gender-based violence has increased significantly during the forced confinement of COVID-19 lockdowns according to the UNFPA. The number of calls made to the 24-hour Women’s Help-Line (a national government hotline for complaints of discrimination, harassment and violence against women) and other such services have increased, but many women are reportedly afraid or unable to call, or are unaware of the help-line.
Sources told DFAT that divorce is more common in Sri Lanka today than in previous generations, particularly in major urban areas like Colombo and among middle-class people. In contrast, divorce is less common in rural areas, particularly in more religious communities, owing to more conservative attitudes and more pronounced social stigma attached to divorce. The legal process for obtaining divorce can be lengthy (up to eight years according to the UN Special Rapporteur on the independence of judges and lawyers), and deters some women from seeking divorce from their husbands. This makes it more difficult for woman to escape intimate partner violence.
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.
…
Internal Relocation
The Constitution provides for freedom of movement for all Sri Lankan citizens, and no official restrictions apply to internal relocation. Access to government services through the local village level office (grama niladhari office) is available to Sri Lankans who relocate; a person intending to relocate to another district only has to register himself/herself with the grama niladhari office and in the house-holders list, and obtain a police clearance.
In practice, relocation can be difficult. An absence of family connections or a lack of financial resources can limit internal relocation options. An absence of language skills can act as an additional barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some part of the country. Continued military occupation of private land, difficulties establishing title to land, and uncleared land mines or unexploded ordnance also complicate internal relocation, particularly in the north.
Sri Lankan security forces maintain effective control throughout Sri Lanka and individuals are unlikely to be able to relocate internally with anonymity. In particular, the Sri Lankan military, intelligence and police continue to maintain a high level of awareness of returned IDPs to the north and east. The Government has reduced the level of monitoring, but some individuals have reported that their movements continue to be observed.
The US DOS 2021 Human Rights Report for Sri Lanka states:
… For domestic violence, a victim can obtain a protection order for one year and request a maintenance allowance. The law prohibits spousal rape only if the spouses are legally separated. Women’s organizations reported police and judiciary responses to rape and domestic violence incidents and cases were inadequate. The police Bureau for the Prevention of Abuse of Women and Children conducted awareness programs in Page 36 schools and at the grassroots level to encourage women to file complaints. Police continued to establish women’s units in police stations. Services to assist survivors of rape and domestic violence, such as crisis centers, legal aid, and counseling, were scarce nationwide due to a lack of support.
… Reports of gender-based violence rose substantially during the pandemic, with reports of survivors often being trapped indoors with their perpetrators.
The UNFPA report, “A Shelter Struggles as the Sri Lanka Crisis Deepens”, 18 August 2022, states:
Sri Lanka is experiencing its worst socio-economic crisis since independence. The country’s once robust healthcare system is teetering on the edge of collapse amid debilitating power shortages and a lack of critical supplies, equipment and medicine. This is severely impacting the delivery of sexual and reproductive health services, including maternal health care and access to contraception. Existing protection mechanisms for women and girls in need, including survivors of gender-based violence, have also been severely compromised…. The economic crisis has led to a range of problems including government funding shortfalls for all health services, even essential services like safe houses for women.
A March 2022 report, “Gender-Based Violence Plaguing Sri Lanka” from the Global Human Rights Defence organisation, states:
In Sri Lanka, sexual and gender-based violence is experienced by a large percentage of the female population, making it an important human rights issue for women in the country. According to a 2019 Women’s Wellbeing survey by the Department of Census and Statistics, 20.4% of the 51.6% of females in Sri Lanka were reportedly subjected to domestic (physical)/ sexual violence by their intimate partner. Furthermore, 24.9% of the female population in Sri Lanka has faced domestic (physical)/sexual violence since the age of 15. …
Besides the gender-based violence previously pervasive in Sri Lankan society, the onset of the COVID-19 pandemic and the lockdown measures has aggravated the number of domestic and sexual violence cases against women. Moreover, many of such cases go un(der)reported on account of a multitude of factors . While Sri Lanka has ratified international treaties to protect the rights of women and has passed laws to curb gender-based violence, a prominent absence of constructive and immediate actions to ensure such protection remains.
An August 2021 article in the Tamil Guardian, “Sri Lankan police turn a blind eye to domestic violence”, states:
Speaking to the media, Senior DIG Attorney Ajith Rohana admitted that “under no circumstances” would they separate a married couple in cases of domestic abuse. When questioned if the police would take a different approach if there were continuous complaints, Rohana claimed the police would take action but not in cases of “slight abuse” or “abuse and threats”. “Unlike European countries we have a culture, we have values, we have ethics” Rohana claimed. He maintained the need to remand abusers as it may lead to the couple separating. “Then what happens to the children” he asked.
The August 2022 SitRep from OCHA, “Sri Lanka Multi-Dimensional Crisis”, states:
Incidents of sexual and gender-based violence (GBV) are reportedly increasing, while the capacity of government services to respond is severely affected. Service providers lack fuel for field and home visits and are currently working only two days per week. Many women shelters have run out of space, and the police has only limited capacity to review cases, as they are being assigned to monitor fuel stations. In addition, there is a lack of financial support for women and girls at risk of GBV.
CONSIDERATION OF Claims and evidence
The applicant submitted her Sri Lankan passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied she is a citizen of Sri Lanka. The Tribunal assesses the applicant’s claims against Sri Lanka as her country of nationality and receiving country.
Credibility
The applicant claims to fear harm in Sri Lanka from her estranged husband. She claims he was physically and emotionally abusive and controlling during the years of their married life in Sri Lanka, and that he was also abusive to their daughter.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The applicant provided reasonably clear and consistent evidence about her married life and the abuses she suffered from her husband in Sri Lanka. Both she and her daughter were notably distressed during the hearing when speaking about their experiences in Sri Lanka. At times there was some confusion and possibly exaggeration from the applicant about her past situation however this may be attributable to the impact of the past trauma and her psychological disorder, as referenced by her treating psychiatrists. The Tribunal notes that the Australian Institute of Judicial Administration National Domestic and Family Violence Bench Book contains the following regarding the impact of family violence experiences upon memory:
Memories associated with traumatic events and experiences, including the experience of domestic and family violence victimisation, are often fragmented, disorganised and lack coherence. Victims may remember only sensations or emotions rather than chronological details of events.
… When intentionally recalled, as when interviewed by police or in court, recounting may be disorganised, with variability and errors in recall across time. Very intense emotional experiences may lead to distorted memories and amnesia, meaning witnesses cannot give a coherent narrative of a traumatic event or experience.
The experience of giving evidence may itself trigger a traumatic flashback, causing a witness to become confused or disorientated. They may consequently become anxious, forget where they are momentarily or be unable to understand or answer questions. Such witnesses may be perceived to lack credibility and reliability. An understanding of the impact of trauma on memory and witness responses may ameliorate the impact of this on perceptions of witness credibility and reliability.[1]
[1] AIJIA, National Bench Book, Trauma Informed Judicial Practice, >
The applicant has had to explain her married life story several times during the visa and review application processes. In each instance she has provided a simple yet descriptive account of living with a husband who was highly controlling, threatening, possessive, suspicious, humiliating, emotionally abusive, and occasionally physically abusive. She described her husband’s angry and irrational outbursts accompanied by his demands for compliance from not just the applicant but also the members of her family.
The applicant’s daughter has also provided very detailed evidence about her father’s abuse of her mother and herself when they lived together in Sri Lanka. At hearing she gave an emotional but clear recollection of one of the most egregious acts of harm her father perpetrated upon her. She also spoke of witnessing the suffering to her mother caused by her father’s intimidatory and controlling behaviour.
The applicant and her daughter have described a past history with the applicant’s husband in which he exhibited constant controlling and threatening behaviour. According to the Australian Institute of Judicial Administration National Domestic and Family Violence Bench Book:
Coercive control manifests and is experienced in various ways in different class and cultural contexts. Victims commonly describe coercive control as feeling like ‘walking on eggshells’ and report they need to ask permission to do small everyday things and fear the repercussions of not fulfilling their abuser’s expectations or demands. Generally coercive control is understood as a course of conduct aimed at dominating and controlling another (usually an intimate partner, but can include other family or ‘carer’ relationships) and is mainly perpetrated by men against women. Professor Evan Stark has described coercive control as “a pattern of domination that includes tactics to isolate, degrade, exploit and control” victims.
… Research has identified that domestic and family violence is rarely a single incident, rather it is a pattern of behaviour that may or may not include physical force, and extends beyond the home and beyond the duration of a relationship. These patterns of behaviour may occur throughout a relationship, or may be initiated or exacerbated at times of heightened risk, for example, pregnancy, attempted or actual separation, and during court proceedings.
… In some relationships physical violence is part of the pattern of coercive control but incidents of physical violence may be routine, minor and frequently repeated. Other victims report that physical violence is rare or a once off or occurred early in the relationship, but establishes the abuser’s capacity and potential for physical violence. Some people who experience coercive control do not experience physical violence..
Coercive control can be damaging even when there is no physical violence. Many victims identify that non-physical abuse deeply impacts on their sense of self and freedom, and often continues to affect them years after separation. Many victims of domestic and family violence report that the most difficult forms of abuse they experienced were non-physical forms of abuse, especially emotional abuse.
Researchers have suggested that coercive control is a common thread running through risk identification and assessment for domestic violence. In NSW, a detailed analysis of intimate partner homicides between 2008-2016 demonstrated that 99% … of the homicides were preceded by coercive control.
The medical evidence submitted by the applicant from her treating psychiatrists contains diagnoses of PTSD and depressive disorder, attributed to her past experiences of physical and psychological family violence in Sri Lanka. While the reports rely upon information provided by the applicant herself there is nothing in the reports that reflects any doubts or concerns regarding the psychiatrists’ observations and diagnoses. The Tribunal notes that the 2017 report was from a psychiatrist who had been treating the applicant since 2014. Considering this substantial period of time the Tribunal gives the report weight that its contents were the psychiatrist’s informed opinion.
On the evidence before it the Tribunal accepts that the applicant was subjected to domestic and family violence from her husband in Sri Lanka over the years of their marriage.
Fear of Harm on return to Sri Lanka
As put to the applicant it has been about ten years since the applicant left Sri Lanka and had contact with her husband. It is therefore possible he no longer has any interest in harming her. The applicant however maintains that he will wish to harm her still because he will remain angry at her for leaving him and taking their daughter with her.
The Tribunal notes that the applicant and her husband are still legally married and that he lives in the same home area as the applicant’s family.
According to the accepted evidence the applicant’s husband demonstrated significant displays of anger and violent outbursts during his relationship with the applicant. In view of his past behaviour, the proximity of the applicant if she was in Sri Lanka, and her defiance of him the Tribunal is satisfied there is a real chance he would again try to harm her and that the potential harm from him includes serious physical attack.
The Tribunal is therefore satisfied there is a real chance of serious harm to the applicant from her husband in Sri Lanka. Given the harm will be done intentionally and selectively to the applicant the Tribunal is satisfied that it involves systematic and discriminatory conduct.
The harm the applicant suffered in Sri Lanka and will face on return to Sri Lanka can be characterised as gender-based violence. It is noteworthy that the applicant’s husband targeted the applicant and their daughter in his household. His behaviour indicates a perception that women and girls are inferior and subject to his control and abuse.
An Australian Parliament Study found in March 2021 that:
… ‘the key drivers of [domestic and family] violence are gendered. The framework: … identifies gender inequality as setting the necessary social context in which violence against women occurs. A range of international evidence finds that these gendered drivers arise from unequal and discriminatory institutional, social and economic structures, social and cultural norms, and organisational, community, family and relationship practices. Together, these structures, norms and practices create environments in which women and men are not considered equal, and violence against women is both more likely to happen, and more likely to be tolerated and even condoned.’[2]
[2] Commonwealth government ‘Inquiry into family, domestic and sexual violence’, March 2021
The available country information also indicates that societal attitudes regarding women, their role and their status, create an environment in which intimate partner violence occurs with little check.
The Tribunal therefore considers that the essential and significant reason for the harm feared by the applicant is her membership of a particular social group, women in Sri Lanka.
The available country information shows that the police are unlikely to protect the applicant from the violence she fears from her husband and will often expect or encourage a complainant wife to return to her husband’s home. The Tribunal is therefore not satisfied there is effective protection available to the applicant in Sri Lanka.
The Tribunal notes that Sri Lanka is a small country and that the presence of a single older woman outside of her home and family area would become known and remarked upon, if the applicant tried to move to a different part of Sri Lanka. The Tribunal considers there is a real possibility that the applicant’s husband would be able to discover where the applicant is if she did try to relocate and that he would be able to harm her there. The Tribunal is therefore satisfied that the serious harm the applicant is at risk of relates to all areas of Sri Lanka.
On the basis of the above reasoning the Tribunal is satisfied the applicant has a well-founded fear of persecution in Sri Lanka as defined by s.5J of the Act.
Section 36(3)
There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds she has no such right and that she is not excluded from Australia’s protection by s.36(3) of the Act.
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.
Melissa McAdam
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.
…

[2022] AATA 4216

5 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Standing

Remedies