1808567 (Refugee)

[2023] AATA 2418

1808567 (Refugee) [2023] AATA 2418 (8 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rayan Hazim (MARN: 1685918)

CASE NUMBER:  1808567

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Paul Noonan

DATE:8 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i) that applicants one and four satisfy s 36(2)(aa) of the Migration Act; and

(ii) that applicants two and three satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as applicant one.

Statement made on 8 May 2023 at 12:18pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – first applicant wife/mother, second applicant son, third applicant husband/father and fourth applicant daughter – political opinion – mother and son’s support for political party – low-level members, local campaigners and charity organisers – house and car attacked – son’s relationship with daughter of powerful politician – vague claims and evidence – relationship ended many years ago – claims on political and relationship grounds not accepted – economic conditions and availability of medical treatment – mother and father’s ages, physical and mental health, son’s serious traffic accident and extensive injuries – country information – conditions apply generally – members of family unit – daughter’s late claim as woman with dependent male family members with severe health problems – perceived inadequacy and prejudice of protection measures – claim not accepted on refugee criteria, accepted on complementary criteria – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5F, 5H(1), 5J(2), 5LA(2), 36(2)(a), (aa), (c)(i), (2A), 65

Migration Regulations 1994 (Cth), r 1.12

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Sri Lanka, applied for the visas on 6 March 2015. The delegate refused to grant the visas on the basis that they were not satisfied the applicants are owed protection by Australia.

3. The applicants appeared before the Tribunal on 2 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

4. [Applicants one and two] made original claims for protection in this matter. [Applicants three and four] did not make their own claims for protection to the Department. They have, however, made claims for protection during the course of the hearing with the Tribunal.

   Family unit considerations

5. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (Cth) (the Regulations) for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include the spouse and children of the applicant (who have not turned 18).

6. Spouse is defined in s 5F of the Act and the Tribunal has considered this section of the Act for the purposes of reg 1.12. Firstly, the Tribunal is satisfied that applicant one and applicant three are in a married relationship that is valid for the purposes of the Act. The Tribunal finds this to be the case on the basis of applicant two and four’s translated birth certificates which list them as their parents. The Tribunal also notes that applicant one and three have resided together for many years. There is no material before the Tribunal which may cast doubt on the existence of their genuine spousal relationship and the delegate also took no issue with the relationship. As such, the Tribunal finds that applicants one and three have a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship between them is genuine and continuing and that they live together. Applicant three is a member of the family unit of applicant one. As applicant four works full time, she is taken not to be a member of the same family unit as applicant one. Applicant two suffers from extensive and debilitating injuries caused by a motor bike accident as discussed later in these reasons. The Tribunal accepts that he lives with applicant one and three and is dependent upon applicant one and three as per the requirements set out at reg 1.05A of the Regulations. He is therefore taken to be a member of the same family unit as applicant one.

   Summary of claims

7. Applicant one maintains her claims to fear harm as per her original claim to the Department. She informed the Tribunal that she fears persecution because of her political opinion as a supporter of the United People’s Freedom Alliance Party (UPFA) and more broadly the Rajapaksa regimes and animosity towards her from supporters of the United National Party (UNP) because of these political alignments. She also fears persecution because of applicant two’s past relationship with the daughter of a powerful politician aligned to the UPFA who opposed the relationship. She also fears persecution because of the economic collapse of Sri Lanka and the resultant lack of adequate medical care and availability of necessary medicines required to treat her chronic health conditions.

8. Applicant three told the Tribunal that he fears persecution for reason of the economic collapse of Sri Lanka and the resultant lack of adequate medical care and availability of necessary medicines required to treat his chronic health conditions. He also noted that he fears persecution because of his political opinion for the same reasons as applicant one.

9. Applicant two, born on [Date], maintains his claims to fear harm as per his original claim to the Department. He told the Tribunal that he fears persecution because of his past relationship with the daughter of a powerful politician aligned to the UPFA who opposed their relationship. He also fears persecution because of the economic collapse of Sri Lanka and the resultant lack of adequate medical care and availability of necessary medicines required to treat his chronic health conditions.

10. Applicant four is the daughter of applicants one and three and was born on [Date]. She informed the Tribunal that she works on a full-time basis. She told the Tribunal that she fears persecution should she be required to return to Sri Lanka for reason of being a young female and for reason of the economic collapse of Sri Lanka, which she contends makes it increasingly dangerous for her and difficult to access protection should she require it.

11. The Tribunal notes that the applicants’ representative notified that applicant one and applicant two are being treated for mental and physical health related ailments. The Tribunal took this into account with respect to the conduct of the hearing. The Tribunal finds that the applicants were able to fully participate in the hearing and review process and that they understood the Tribunal’s expressed concerns put to them at hearing and that they made responses in an attempt to address these issues. The applicants are also represented in relation to the review and their representative attended the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

12. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Country of nationality

18. The applicants travelled to Australia on apparently genuine Sri Lankan passports, copies of which are contained on the Departmental file. They have at all times stated that they are citizens of Sri Lanka and they have been assessed on that basis by the Department. The Tribunal finds that the applicants are Sri Lankan citizens and has assessed their claims against Sri Lanka as the country of nationality and the receiving country.

    CONSIDERATION OF Claims and evidence

19. The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit as such a person and that person holds a protection visa of the same class.

20. The applicants disclosed in their protection applications to the Department that they are ethnically Sinhala and speak the Sinhalese and English languages. Their religion is Roman Catholic. Applicant one was born on [Date], applicant two was born on [Date], applicant three was born on [Date] and applicant four was born on [Date]. Applicants one, two and three were born in Sri Lanka and applicant four was born in [Country]. The evidence reflects that applicant three was employed in [Country] at the time of applicant four’s birth, however, also that applicant three subsequently lost his employment in [Country] and that he was required to depart [Country]. There is nothing to indicate that any applicant has a right to reside in [Country] or any other third country.  

21. In her original protection claim, which she signed and dated 4 March 2015, applicant one stated (in summary) that she fears persecution in Sri Lanka because of her political opinion. She is a known supporter of the UPFA and she fears serious harm from supporters of the UNP who are opposed to the UPFA. In the 2010 election she supported a prominent UPFA candidate ([Mr A]). She received threatening messages soon afterwards from people she believed to be UNP supporters. She decided to leave Sri Lanka due to these threats.

22. In his original protection claim, which he signed and dated 4 March 2015, applicant two stated (in summary) that he fears persecution in Sri Lanka because of his political opinion. He is a known supporter of the UPFA and he fears serious harm from supporters of the UNP, who are opposed to the UPFA. In the 2010 election he supported a prominent UPFA candidate ([Mr A]). He received threatening messages soon afterwards from people he believed to be UNP supporters. In addition, he had a falling out with [Mr A] and his family because he had a relationship with [Mr A]’s daughter and [Mr A]’s family did not approve of the relationship. He started received threatening phone calls and he thinks [Mr A]’s family was responsible for these calls. He decided to leave Sri Lanka because of these political and personal threats.

23. Prior to the Tribunal hearing, applicant one made a further written submission to the Tribunal. She stated that she fears harm due to her political opinion as a supporter of the UPFA, as a supporter of the Rajapaksa regimes, and as a person suffering physical and mental health issues. She informed the Tribunal that in December 2020 she suffered a work injury resulting in shoulder surgery. She also noted that applicant three suffers heart, diabetes and kidney problems. She noted that she and applicant three are post retirement age. She also submitted that applicant two suffered severe injuries in March 2021 due to a motor bike accident and suffers ongoing physical and mental health problems as a result. As a family they would find it difficult to survive in Sri Lanka given these problems; they would not be able to access required medicines. They will also be shunned due to stigma attached to mental health problems.

24. The Tribunal has examined medical documents submitted by the applicants. The Tribunal accepts that applicant three suffers from diabetes and chronic heart disease, amongst other debilitating health conditions. He currently takes eight prescribed medications to treat his conditions.  The Tribunal also accepts that applicant two has undergone major back surgery as a result of a motor bike accident and is severely compromised and debilitated by his injuries suffered as a result of this accident. The Tribunal also accepts that applicant one has suffered a debilitating workplace shoulder injury and has recently undergone shoulder surgery; she receives WorkCover payments and does not work.

    Do the applicants have a well-founded fear of persecution for reason of their political opinions?

25. To varying degrees during the course of the hearing all of the applicants expressed fear of persecution due to their political opinion or imputed political opinion. Applicant one informed the Tribunal with respect to her newly introduced claim to fear harm as a supporter of the Rajapaksa regime that she had a friend who was a Minister in the Rajapaksa government for a long time and as a result she helped and supported them.

26. The Tribunal noted that the written submissions before it reflect that applicant one, two and three’s political activities encompassed handing out political flyers and posters and engaging generally with people in their area but that these applicants were not political candidates. Applicant one confirmed this is correct. The Tribunal put to the applicants that this may reflect that they were not active and high-profile political activists and as such would be unlikely to have a high political profile and therefore, they would be unlikely to be actively targeted for harm for reason of their political opinion. Applicant one stated that she considered that she was highly politically engaged. She submitted that her house and car were targeted for attack during the 2010 election and for this reason she left for Australia. When asked why she was targeted in this way, applicant one stated in general terms that there is rivalry between the political parties. The Tribunal note that the UPFA was a mainstream political party at the time with many members and it was not clear why she and her family would have been targeted for harm given she was merely a grassroots member and campaigner. She submitted that because she was supporting her friend’s husband, who was a powerful member, the opposition was against them. These opposition people came and threw stones at her house and car in 2010. The Tribunal noted that she then continued to stay in Sri Lanka for some time after that. She submitted that once a month after that incident she received threatening phone calls to not participate in political activities or she would be harmed and killed. She did not approach the authorities about these threats as she thought this would attract more trouble and all she wanted to do was leave the country. The Tribunal put to the applicants that it may find it surprising that they would not take some steps to obtain protection prior to making the decision to leave their country. Applicant one responded that their assailants would find out about the complaint and step up their campaign of threats and harm. Applicant one stated that she still supports the UPFA.

27. The Tribunal put to the applicants that since they left Sri Lanka there have been several elections and that country information now states that the UNP are politically a spent force. This may indicate that the applicants’ fears of harm from UNP supporters are not well-founded as the UNP party no longer effectively exists, having won only one seat at the 2020 elections.[1] Applicant one agreed that while the UNP may be a spent force, even mentioning the Rajapaksas may lead to them being killed. The Tribunal noted that in the 2020 elections there was majority support for the Rajapaksas.[2] The Tribunal noted that this may indicate that if blame was to be apportioned with respect to the country’s subsequent economic collapse, there is a lot of blame to be shared around and it is not clear why they would be particularly singled out. Applicant one simply reiterated her fears in general terms without giving any further detail as to why she or her family would be particularly targeted for reason of their past support for the Rajapaksas.

    [1] Parliament of Sri Lanka - General Election 2020, Sri Lankan parliamentary elections: Five key takeaways | News | Al Jazeera, >

    Applicant two submitted to the Tribunal that he and applicant one’s support of the UPFA was greater than that of normal supporters. They did a lot of charity organisational work for people in the area. He referred to video and photos of these activities, which the Tribunal has had regard to. With respect to the current political situation in Sri Lanka, he submitted that Ranil Wickremesinghe is in power and he was a former leader of the UNP. He has stated that he will treat people harshly, so he fears reprisals for their former role as opposition supporters. He also considers that there is corruption in Sri Lanka, and this will result in reprisals if they report threats to the police as they are linked to the government. The Tribunal noted that Ranil Wickremesinghe is generally considered a supporter of the Rajapaksas.[3] The Tribunal noted that, as his family have given evidence that they are generally historically aligned with the Rajapaksas, it may consider that they would be unlikely to be targeted for harm for reason of their political opinion. Applicant two simply stated that ordinary people are vulnerable and there is a lot of corruption.

    [3] Profile: Ranil Wickremesinghe, Sri Lanka’s new president | News | Al Jazeera, type="1">

28. The Tribunal accepts that the applicants have supported the UPFA political party and the Rajapaksas in the past. As discussed during the hearing, these represent mainstream political parties in Sri Lanka. Ranil Wickremesinghe is aligned with the Rajapaksas. The Tribunal considers, as discussed at hearing, that the applicants were previously involved in politics as low-level campaigners. The Tribunal accepts that the applicants may have experienced some violence at election times in the past associated with political campaigning as country information reflects this can occur, however their evidence with respect to why they were specifically and repeatedly targeted was unconvincing and lacking detail. They were only able to cite support of candidates and general political tensions as reasons. It is clear that the applicants were never political candidates in their own right nor were they integral members of a campaign team. There is simply no credibly plausible reason before the Tribunal as to why members or supporters of the UNP or any other persons would be motivated to adversely target them for the reason of their political opinion on an ongoing basis. The Tribunal rejects that this occurred. As discussed at hearing, there has been a significant passage of time since the claimed violence associated with the 2010 election, and several changes in political power since then. The Tribunal is satisfied, and so finds, that should the applicants return to Sri Lanka they will not be of any adverse interest to anyone for reason of their political opinion. It follows that there is no real chance of serious harm to the applicants for reason of their political opinion should they return to Sri Lanka either now or in the reasonably foreseeable future. As such, their fear of persecution for reason of their political opinion is not well-founded.

29. For the reasons set out above, the Tribunal has not accepted there to be a real chance the applicants will face serious harm for reason of their political opinion, whether actual or imputed. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] For the same reasons, the Tribunal does not accept there to be a real risk the applicants will be subjected to significant harm for reason of their political opinion as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

    Do the applicants have a well-founded fear of persecution for reason of applicant two’s past relationship with [Mr A]’s daughter?

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

30. With respect to his relationship with [Mr A]’s daughter, applicant two confirmed that the relationship ceased many years ago. He submitted that despite this fact he fears harm for this reason as she came to visit his family unexpectedly in Australia. When questioned for specifics about this claimed visit, applicant two stated that he does not know why she visited, however, this visit concerned him and the other applicants as her family has previously threatened him with harm. The Tribunal put to applicant two that it is entirely unclear why she would be interested in visiting his family. He speculated that maybe she was trying to find out information about them but was unsure why that would be. He stated that this fear of harm is specific to himself. He fears that her family maintain animosity towards him. He confirmed that he has not received any threats of harm since the relationship ended. The Tribunal put to applicant two that his fears appear highly speculative given the relationship ended many years ago and no threats of harm have been issued since then. Applicant two simply stated that he maintains a fear of harm based on past threats.

31. Applicants one and three also submitted in general terms that they fear that there is animosity stemming from [Mr A] because of the affair applicant two had with his daughter.

32. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

    Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[5]

    [5] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293

33. The Tribunal considers the applicants’ evidence and claims to fear harm with respect to adverse interest stemming from applicant two’s past relationship with [Mr A]’s daughter to be unconvincing, vague, lacking in detail and highly speculative. This is because it is clear that this relationship ended many years ago and there have not been any threats made due to this relationship since it ended. Even when [Mr A]’s daughter visited the applicants, there were no threats of harm made. The Tribunal would expect that, if the [A] family retained any adverse interest in applicant two or his family, this would have been made clear during [Mr A]’s daughter’s visit. As no threats were made and the relationship ended many years ago, the Tribunal is satisfied that the claims to fear harm for this reason are mere speculation. The Tribunal finds that, should the applicants return to Sri Lanka, there is no real chance of serious harm for the reason of applicant two’s past relationship with [Mr A]’s daughter either now or in the reasonably foreseeable future.

34. For the reasons set out above, the Tribunal has not accepted there to be a real chance the applicants will face serious harm for reason of applicant two’s past relationship with [Mr A]’s daughter. For the same reasons, the Tribunal does not accept there to be a real risk the applicants will be subjected to significant harm for reason of applicant two’s past relationship with [Mr A]’s daughter as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

    Do the applicants have a well-founded fear of persecution for reason of their health and the poor state of the economy?

35. Applicant two stated that he had a serious motorcycle accident. He nearly died. He has significant residual health problems from this including pain, depression and mobility issues.

36. Applicant one stated that she is not working and cannot work because of her age and injuries. She receives a WorkCover payment. The Tribunal put to the applicants that, as they have a house in Sri Lanka, they may be able to return to Sri Lanka and not suffer hardship as they have ready access to accommodation. Applicant one responded that owning a house would not be enough as they need to continue to see medical specialists, and this would cost a lot of money which they do not have. The Tribunal noted that, while it may accept that the level of medical care available to them in Sri Lanka is not of the same standard as that which they may be able to access in Australia, it also has to consider whether medical treatment would be intentionally withheld from them. Applicant one reiterated her fears related to her political profile as a reason why medical treatment may be withheld.

37. Applicant three submitted that there is a severe shortage of medicines in Sri Lanka and he requires medicine for his underlying health conditions.

38. The Tribunal put to the applicants that DFAT assesses that Sri Lanka inherited a well-developed health care system at independence. The health care system has a long record of strong performance, including in maternal and child health and infectious disease control. The public health system offers universal free health care; however, regional disparities exist in the quality of care and facilities, particularly between urban and rural areas. Sri Lanka offers some mental health services but there are gaps. Local sources report that mental illness still carries a stigma and elicits a strong sense of pity in Sri Lankan society. Such stigma deters sufferers from revealing and seeking treatment for mental illness and that stigma is likely worse the more a mental illness is ‘visible’ to outsiders. Overall, stigma has declined considerably in the last 15 years and Sri Lankans now access counselling services more freely, where available. DFAT assesses that there is no discrimination on the basis of religion or ethnicity with regard to health services.[6]

    [6] Ibid, p. 11-12

39. The Tribunal noted that this country information may indicate that the applicants face no real chance of serious harm for reason of their health considerations in Sri Lanka. Applicant one stated that she does not agree. There is a serious shortage of medicine in Sri Lanka and people miss out on treatment. Medicines are not readily available, nor is medical treatment. The Tribunal agreed that the latest country information sets out that the current economic and health situations are poor.

40. The Tribunal notes that the applicants did not advance any arguments as to why they would be denied medical care or employment for a refugee reason. The Tribunal is satisfied that the country information indicates that Sri Lanka maintains a universal health care system accessible to all citizens and that treatment for mental health concerns has improved in recent times with a significant drop in the stigma attached to mental health concerns. While there are significant capability gaps and issues with respect to access to medicines, it is clear that they will not be targeted for harm with respect to the withholding of medical care or medical malpractice for a refugee reason should they return to Sri Lanka. It is also clear that the applicants retain a house in Sri Lanka and as such will not be destitute should they return to Sri Lanka. The Tribunal finds that the applicants’ fear of persecution for these reasons is not well-founded.

41. With respect to the complementary protection criterion, the Tribunal discussed with the applicants that the current poor state of the economy and its related detrimental effect on the health system and the availability of medicines is a situation applying generally to everyone in the country and that to constitute significant harm as per s 36(2A) the harm must be inflicted as a result of an intentional act or omission perpetrated by another person. The applicants were unable to provide any cogent reasons as to why this would occur with respect to health or employment, except to cite their claimed adverse political profiles, which the Tribunal has already rejected as a reason for fearing harm. The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk of them being significantly harmed for reason of the current poor state of the economy and its related detrimental effect on the health system and the availability of medicines.

    Does applicant four have a well-founded fear of persecution due to her membership of a particular social group (being women with immediate dependent male family members with severe health problems).

42. The Tribunal spoke to applicant four about this newly introduced claim. She stated that she fears returning to Sri Lanka because the economic crisis means that it is not safe for a young woman such as herself and she fears harm for this reason. The Tribunal noted that if she were to return it would be with her family and as such it may consider she would be provided some security. She submitted that her parents are old and her brother is crippled and they would not be able to support or protect her. They would be reliant upon her for physical and financial support. She would not be able to study. She wanted to study in Australia but because she is on a bridging visa, she cannot afford the full fees. She lives with her parents and brother, and her father. She works on a full-time basis as [an Occupation]. 

43. The Tribunal noted that 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. 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. 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. Anecdotal evidence suggests that victims of sexual violence, especially statutory rape of minors, are reluctant to report the matter to the police due to social stigma and out of fear they would be ostracised by their families and have difficulty marrying if the matter became widely known. 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. There are, however, various legislative provisions that criminalise gender-based violence. The Constitution guarantees that no citizen shall be discriminated against on the grounds of sex. 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 s 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. [7] The Tribunal discussed that this may indicate that the authorities have taken effective protection measures for women. Applicant four submitted that any man with money in Sri Lanka can bribe officials and as a result she fears she will be open to serious harm as a woman.

    [7] Ibid, p. 32-33

44. The Tribunal notes applicant four’s concerns about the poor state of her family’s health and their consequential inability to support and protect her in Sri Lanka. The Tribunal notes with concern the country information that reflects there is a moderate risk of societal discrimination, including violence against women in Sri Lanka and that violence and sexual harassment against women in public spaces is common. The Tribunal considers that applicant four would be relied upon by her significantly aged and or disabled immediate family to care and support them. She would be without able bodied immediate male family support and required to navigate an unfamiliar society as a young single woman. In addition applicant one would be forced to navigate this society with significant age and health concerns trying to support her son and husband. The Tribunal concludes that there is a real chance of serious harm to both applicants one and four should they return to Sri Lanka because of their membership of a particular social group, being women with immediate dependent male family members with severe health problems.  Applicant four’s fear of persecution in this regard is therefore well-founded.

45. Section 5H(1) of the Act states as follows:

    (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: (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.

46. Section 5J(2) of the Act states that a person does not have a well-founded fear of persecution if effective protection measures are available in a receiving country.

47. The Tribunal considers that the Sri Lankan state has enacted significant legislation to protect women from serious harm and is willing and able to offer protection against persecution as per s 5LA(1) of the Act. DFAT assesses that Sri Lanka has no laws or government policies that hinder access to state protection on the basis of religion or ethnicity. All citizens have access to avenues of redress through the police and judiciary.[8]

    [8] Ibid, p. 44

48. Section 5LA(2) of the Act provides that a relevant state, party or organisation is taken to be able to offer protection against persecution where:

    (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.

49. The country information indicates that there is a chronic lack of reporting by women of endemic and pervasive gender-based violence. This is because of a perceived lack of empathy and associated lack of training in this area within the police force as well as fears of societal stigma and public shaming. However, the country information also indicates that applicants one and four will not be prevented from accessing protection, the protection is durable (in that is not temporary in nature) and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

50. Due to the findings above, the Tribunal finds that effective protection measures are available to applicants one and four should they require them for reason of persecution due to their membership of the particular social group being women with immediate dependent male family members with severe health problems.

51. With respect to complementary protection considerations the Tribunal considers that the country information reflects violence against women is pervasive and experienced across all social and ethnic strata in Sri Lanka. The Tribunal considers, on the basis of this information, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk of significant harm to applicants one and four, for the reason of them being women with immediate dependent male family members with severe health problems as per the criteria set out at s 36(2)(aa). Section 36(2B) sets out circumstances in which there is taken not to be a real risk of significant harm. The Tribunal is satisfied that the first of these circumstances, dealing with an ability to safely relocate, is not an option as the risk is pervasive in Sri Lanka.

52. The second circumstance contemplates protection from an authority. Section 36(2B)(b) requires the Minister to be satisfied that the protection available would remove the real risk of significant harm. In MIAC v MZYYL, for example, the Court expressly rejected that s 36(2B)(b) requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’.[9] Instead, the provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection, there would still be a real risk of significant harm.[10] 

    [9] MIAC v MZYYL (2012) 207 FCR 211 at [36]–[37].

    [10] ABAR15 v MIBP (No 2) [2016] FCA 721 at [60]–[61]

1. The Tribunal notes that the country information reflects pervasive and ongoing violence and sexual harassment of women in Sri Lanka perpetrated in society at large, as set out above, and that, as per DFAT’s most recent assessment, all women face a moderate risk of societal discrimination, including violence. The Tribunal considers this risk is exacerbated with respect to applicant’s one and four by the severe health problems of their immediate male family members as they would be required to navigate the society by themselves in support of both themselves and their immediate male relatives who suffer severe health problems. Women are also found to be significantly reluctant to access state protection for a number of factors including a chronic perceived inadequacy and prejudice of the police in effectively dealing with such matters. As such, the Tribunal considers that the protection measures employed by the authorities in the form of relevant legislation does not reduce the risk of harm to applicants one and four, as they would have difficulty obtaining protection, and even if it was obtained, such measures clearly do not reduce the risk of harm to something less than a real risk given the above country information.

2. Finally, the risk faced by applicants one and four is not one faced by the population generally and there is no evidence that they have a right to enter and reside in any other country.

3. Given the above considerations and findings, the Tribunal finds that applicants one and four are entitled to complementary protection.

   CONCLUSIONS

4. For the reasons given above, the Tribunal is satisfied that applicants one and four are persons in respect of whom Australia has protection obligations and they satisfy the criterion set out in s 36(2)(aa).

5. The Tribunal is not satisfied that applicants two and three are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that applicant two is the son of applicant one and that he is dependent upon her and that applicant three is the husband of applicant one and as such they are members of the same family unit as applicant one for the purposes of s 36(2)(c)(i). As such, the fate of their applications depends on the outcome of applicant one’s application. It follows that applicants two and three will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.

   DECISION

6. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that applicants one and four satisfy s 36(2)(aa) of the Migration Act; and

   (ii)that applicants two and three satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as applicant one.

   Paul Noonan
   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.

   …