1823575 (Refugee) [2024] AATA 4142 (4 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Luke Brennan
CASE NUMBER: 1823575
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Alison Murphy
DATE:4 October 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 04 October 2024 at 9:02am
CATCHWORDS REFUGEE – protection visa – Sri Lanka – written claims of religion, imputed political opinion membership of particular social groups – Muslim, young single woman and returned failed asylum seeker – claims at hearing of conversion to Christianity, interfaith marriage and divorce – fundamental characteristics and no significant issues of credibility – father Tamil-speaking Muslim and mother Sinhalese-speaking Buddhist who converted to Islam – family moderately observant and applicant attended church with Catholic friends – female genital mutilation and sexual assault by relative – married Buddhist, pressure from husband’s family to convert, and relationship ceased – second relationship with Buddhist, violence and homelessness – some attendance at Buddhist temples – currently undertaking formal conversion process to Catholicism – estranged from family – fear of harm from male relatives – physical and mental health – country information – special legislation for Muslims and customary laws, even when inconsistent with constitutional rights – effective state protection not available, behavioural modification impermissible and practical barriers to relocation – decision under review remitted
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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of Sri Lanka, applied for the visa on 10 June 2015. The delegate refused to grant the visa on the basis that she did not engage Australia’s protection obligations.
The applicant appeared before the Tribunal on 1 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1823575 (Refugee) [2024] AATA 4142
Case
[2024] AATA 4142
Decision Date
CaseChat Overview and Summary
The applicant, a Sri Lankan national, sought a protection visa. The dispute concerned whether Australia had protection obligations towards her under the Migration Act 1958 (Cth). The applicant's claims evolved from those initially made in her application to those presented before the Tribunal, involving her Muslim faith, imputed political opinion, status as a young single woman, and as a returned failed asylum seeker. Before the Tribunal, her claims were framed around her renunciation of Islam, conversion to Christianity, interfaith marriages and relationships, and subsequent divorce, leading to a fear of harm from male relatives. The Tribunal considered the applicant's personal background, including her family's religious and linguistic diversity, her education, marriage, and return to Sri Lanka. Medical evidence indicated she suffered from diabetes, anxiety, depression, borderline personality disorder, a history of family violence, a past suicide attempt, and female genital mutilation.
The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal was required to assess the applicant's claims against the country information for Sri Lanka and consider the relevant guidelines and directions, including Ministerial Direction No. 84. Specifically, the Tribunal had to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether effective protection measures were available to her in Sri Lanka. The Tribunal also considered whether behavioural modification would be permissible to avoid persecution, and if relocation to another area within Sri Lanka would be reasonable.
The Tribunal found that the applicant's claims, despite the shift in emphasis, arose from characteristics fundamental to her identity as a woman raised in the Muslim faith. It was satisfied that no significant issues of credibility arose, as her evidence regarding her identity, movements, mental health, and experiences of gender-based violence was consistent with her migration history and supported by medical evidence. The Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth).
Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958 (Cth).
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
There is no dispute about the applicant’s identity or nationality, and the Tribunal notes that she travelled to Australia from Sri Lanka in 2007 after being granted a student visa. The Tribunal accepts the applicant is a Sri Lankan national and has assessed her claims against Sri Lanka as her country of nationality and the receiving country.The applicant’s personal background The applicant is a [Age]-year-old woman from [City], Sri Lanka. She grew up in a family comprising her parents, one brother and one sister. Her father worked at a [workplace] and her mother undertook home duties. The applicant’s father and his family grew up speaking Tamil, while the applicant’s mother grew up speaking Sinhalese. The applicant speaks, reads and writes English, Sinhalese and Tamil, and at hearing she told me her father’s family spoke a broken Tamil that is spoken by most Muslims in [City]. In their own household the family spoke mainly Sinhalese and English. The applicant completed high school in [Year], undertaking an English course and [a subject 1] course. She married her former husband in July 2007 when she was [Age] years old and travelled with him to Australia in November 2007 as the holder of a student visa. In Australia the applicant undertook a Certificate III in [Subject 2] but did not complete her Certificate IV. She returned to Sri Lanka for three months in 2011/2012, staying with her family. She has since remained in Australia on a series of bridging visas.The applicant’s medical conditions Medical evidence before the Tribunal indicates the applicant has diabetes and has been diagnosed with anxiety and depression and borderline personality disorder, for which she receives medical treatment. That medical evidence also indicates that she has a history of family violence, a past suicide attempt and that she was subjected to female genital mutilation (FGM) as a child.The applicant’s claims for protection In a statement accompanying the protection visa application, the applicant claimed to fear harm as a person from a religious minority (being of Muslim religion); the political opinion imputed to her as a Muslim; and as a single young woman and returned asylum seeker. Before the Tribunal, her claims were framed quite differently – the applicant claimed to fear harm as a young Muslim woman who has renounced Islam, converted to Christianity, entered into interfaith marriages/relationships and been divorced. In particular she claims to fear harm from members of her extended family. Notwithstanding the difference in emphasis, the Tribunal is satisfied that the applicant’s claims in both instances arise from characteristics fundamental to her identity as a woman born and raised in the Muslim faith and that no significant issues of credibility arise. Her evidence at hearing about her identity and movements is consistent with her known migration history, and her claims about her mental health and gender-based violence are supported by the medical evidence. Having heard her oral evidence, the Tribunal is satisfied as to the credibility of her central claims for protection.
Evidence
Evidence Before The Court
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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Country of nationality There is no dispute about the applicant’s identity or nationality, and the Tribunal notes that she travelled to Australia from Sri Lanka in 2007 after being granted a student visa. The Tribunal accepts the applicant is a Sri Lankan national and has assessed her claims against Sri Lanka as her country of nationality and the receiving country.The applicant’s personal background The applicant is a [Age]-year-old woman from [City], Sri Lanka. She grew up in a family comprising her parents, one brother and one sister. Her father worked at a [workplace] and her mother undertook home duties. The applicant’s father and his family grew up speaking Tamil, while the applicant’s mother grew up speaking Sinhalese. The applicant speaks, reads and writes English, Sinhalese and Tamil, and at hearing she told me her father’s family spoke a broken Tamil that is spoken by most Muslims in [City]. In their own household the family spoke mainly Sinhalese and English. The applicant completed high school in [Year], undertaking an English course and [a subject 1] course. She married her former husband in July 2007 when she was [Age] years old and travelled with him to Australia in November 2007 as the holder of a student visa. In Australia the applicant undertook a Certificate III in [Subject 2] but did not complete her Certificate IV. She returned to Sri Lanka for three months in 2011/2012, staying with her family. She has since remained in Australia on a series of bridging visas.The applicant’s medical conditions Medical evidence before the Tribunal indicates the applicant has diabetes and has been diagnosed with anxiety and depression and borderline personality disorder, for which she receives medical treatment. That medical evidence also indicates that she has a history of family violence, a past suicide attempt and that she was subjected to female genital mutilation (FGM) as a child.The applicant’s claims for protection In a statement accompanying the protection visa application, the applicant claimed to fear harm as a person from a religious minority (being of Muslim religion); the political opinion imputed to her as a Muslim; and as a single young woman and returned asylum seeker.
Decision
Reasons for decision
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.Alison MurphyMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Country of nationality There is no dispute about the applicant’s identity or nationality, and the Tribunal notes that she travelled to Australia from Sri Lanka in 2007 after being granted a student visa. The Tribunal accepts the applicant is a Sri Lankan national and has assessed her claims against Sri Lanka as her country of nationality and the receiving country.The applicant’s personal background The applicant is a [Age]-year-old woman from [City], Sri Lanka. She grew up in a family comprising her parents, one brother and one sister. Her father worked at a [workplace] and her mother undertook home duties. The applicant’s father and his family grew up speaking Tamil, while the applicant’s mother grew up speaking Sinhalese. The applicant speaks, reads and writes English, Sinhalese and Tamil, and at hearing she told me her father’s family spoke a broken Tamil that is spoken by most Muslims in [City]. In their own household the family spoke mainly Sinhalese and English. The applicant completed high school in [Year], undertaking an English course and [a subject 1] course. She married her former husband in July 2007 when she was [Age] years old and travelled with him to Australia in November 2007 as the holder of a student visa. In Australia the applicant undertook a Certificate III in [Subject 2] but did not complete her Certificate IV.