1823575 (Refugee)

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
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (2), 5LA(1), (2), (3)(c)(v), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
FCS17 v MHA (2020) 276 FCR 644
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 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 (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.
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.
For the following reasons, the Tribunal considers the matter should be remitted for reconsideration.
FINDINGS OF FACT
In view of the oral and documentary evidence before it, the Tribunal accepts the following matters to be true.
It is not in dispute that the applicant grew up in [City]’s [Muslim] community, [who] predominantly speak Tamil as their first language.[1]
[1] ‘DFAT Country Information Report Sri Lanka’, Australian Government, Department of Foreign Affairs and Trade, [2 May 2024]
The applicant’s mother was of Sinhalese ethnicity and Buddhist religion. She converted to Islam when she married the applicant’s father and the applicant and her siblings were raised in the Muslim faith. This is consistent with DFAT’s advice that a non-Muslim wishing to marry a Muslim in Sri Lanka must convert to Islam and raise any children as Muslim.[2] Consistently with DFAT’s advice [about FGM], the applicant was subjected to FGM as a child.[3]
[2] Ibid paragraph 3.30
[3] Ibid paragraph [number]
The applicant attended a school of mostly Buddhist and some Catholic students with only a few Muslims. The students had to choose to undertake religious education in either the Catholic or Buddhist faiths and the applicant enjoyed attending church and religious education activities with her Catholic friends.
The applicant’s immediate family prayed five times a day but was less religious than her father’s family, in which her father was one of five siblings. One of the applicant’s father’s two brothers stopped speaking to her father when he married her mother, angry at his marriage outside their Muslim faith. By contrast the applicant’s grandfather had known the applicant’s mother before her marriage to his son and protected her from the wider family after the marriage. The applicant’s grandfather lived with the applicant’s parents and her mother cared for him when he was bedbound in the years leading up to his death.
The applicant’s mother was required to change her name to an Islamic name chosen by one of the applicant’s father’s two sisters. That sister has two sons, [Mr A and B], now adults. In her own household the applicant was not required to cover but sometimes wore a shawl, but when they visited her father’s family her father would ask her to cover her face and head. Some relatives in her father’s extended family have two or three wives.
The applicant claims, and the Tribunal accepts, that [Mr A] sexually assaulted her throughout her childhood when her family stayed at her aunt’s house during school holidays. In her final years of school she refused to go to her aunt’s house, using her studies as an excuse. She has never told either of her parents about the sexual assaults, believing that if her father ever finds out there would be very serious consequences.
As a young adult, the applicant commenced a relationship with [Mr C], a close friend of her brother who came to their house to study. She was scared to disclose her relationship to her family because interfaith relationships were not acceptable in the family. Her father was angry about the relationship because [Mr C] was Buddhist and not Muslim, and she was expected to enter into an arranged marriage after completing her Australian studies. The applicant told her father she would only commence her studies in Australia if [Mr C] went with her, and the applicant’s father reluctantly agreed to the marriage on the basis that the couple would migrate to Australia and his family wouldn’t find out about it.
In accepting this evidence, the Tribunal notes DFAT’s advice that Sri Lankans are encouraged to marry from within their own religious communities and some families disapprove of inter-faith marriages. In particular Muslims who marry outside their faith are reportedly more likely to experience social stigma within their community than Buddhists, Hindus and Christians.[4]
[4] ‘DFAT Country Information Report Sri Lanka’, Australian Government, Department of Foreign Affairs and Trade, 2 May 2024 at 3.50–3.52
The couple married in [Year] and departed [City] for Australia in November 2007. After the marriage the applicant came under pressure from [Mr C]’s parents to convert to Buddhism and her relationship with her former husband deteriorated. The applicant separated from her former husband in 2011 and returned to Sri Lanka to visit her family.
At the time she returned to Sri Lanka, her extended family still did not know about her marriage and her immediate family did not know she had separated from her former husband. She told her parents that [Mr C] didn’t accompany her because of work, knowing that getting a divorce would bring dishonour on her family. Her extended family constantly talked about arranging her marriage, believing that the only thing preventing this was the completion of her Australian studies.
The applicant returned to Australia before telling her family that she had separated from her former husband. Her mother rarely spoke within the family but was quietly supportive, concerned about the applicant’s mental health. Her father was very upset, particularly as he hadn’t wanted the marriage to take place in the first place, asking her how he could explain to his family that she had not only married outside of their faith but also divorced. Her father eventually told his family who were furious and did not talk to her father for several months. The applicant’s divorce from [Mr C] became final in 2012.
[Mr A] rang the applicant after finding out about her marriage and divorce, accusing her of lying to the family when they had wanted to arrange her marriage when she was in Sri Lanka in 2011. He said that she had to marry someone that the family arranged and that she couldn’t say no because her hidden marriage and divorce were a black mark on the whole family.
After returning to Australia, the applicant commenced a relationship with [Mr D], a Sri Lankan national who was also Buddhist. She occasionally attended temple with [Mr D], but never practised Buddhism. The applicant’s relationship with [Mr D] was marred by violence and she experienced periods of homelessness where she lived in her car after fights with [Mr D]. In or about 2014, she attempted suicide after a fight with [Mr D]. That relationship ended in 2019.
The applicant has not observed the tenets of the Muslim faith since leaving Sri Lanka in 2007. She occasionally attended Buddhist temple with her former partners, but never converted to or practised Buddhism. Since about 2020 she has attended various Catholic churches but had no regular practice and did not attend mass.
The applicant discussed her interest in converting to Catholicism with her mother on the phone. Her mother said she had no objection, and her father said he did not agree but would not try to stop her. The applicant decided to formally convert to Catholicism after her mother’s death in 2022 and is currently undertaking a one-year course in preparation for baptism around Easter 2025.
The applicant’s sister also married a Buddhist man, later divorcing that husband and marrying another Muslim man. She has been banished from the family for many years and was allowed back into the household only to perform religious rituals following her mother’s death because those rituals can only be performed by a daughter. She otherwise has no contact with the family and her husband will not allow her to maintain contact with the applicant because of the way the family treated the couple at the time of their marriage.
The applicant has had little contact with her family since her mother’s death in 2022. Her brother has migrated to [Country] and they rarely speak. She has had no contact with her sister since her mother’s funeral. Her father remains angry about the applicant’s interfaith marriage and subsequent divorce as well as her decision to convert to Catholicism.
She fears that if she returns to Sri Lanka, she will be harmed by the male relatives in her family because of her gender and her religion.
Real chance of serious harm on return
The applicant claims to have a well-founded fear of persecution from members of her family for reasons of her gender and religion because she has renounced Islam, converted to Christianity, had an interfaith marriage and another relationship with a Buddhist man and been divorced.
The Tribunal accepts that the applicant was raised in [a small, conservative Muslim community]. The applicant’s father married a Sinhalese Buddhist woman, but she was required to convert to Islam, and the applicant and her siblings were raised as Muslims.
While the applicant’s father married a Sinhalese woman of Buddhist faith, she converted to Islam at the time of her marriage, and the applicant and her siblings were raised as Muslims. The applicant’s sister also married and divorced a Buddhist man with the consequence that she was banished from the family with whom has no ongoing contact. The Tribunal accepts her situation to be somewhat different from the applicant as she has since remarried and has the protection of her husband.
DFAT reports that Muslims in Sri Lanka are considered a separate ethnic and religious group. While women in Sri Lanka generally have equal rights to men under law, laws in the Muslim community around matters including marriage, divorce, child custody and inheritance are governed by personal customary laws, which tend to favour men.[5]
[5] ‘DFAT Country Information Report Sri Lanka’, Australian Government, Department of Foreign Affairs and Trade, 2 May 2024 at 3.21, 3.136
Marriage in the Muslim community is governed by the Muslim Marriage and Divorce Act (1951) (the MMDA), which is derived from sharia law and applies only to Muslims. Sri Lanka’s Constitution affirms the validity of the MMDA and unwritten customary laws, even where inconsistent with constitutionally recognised ‘fundamental rights’ which include the rights to freedom of thought, conscience and religion, the right to equality and the right to not be discriminated against on the grounds of sex.[6]
[6] ‘DFAT Country Information Report Sri Lanka’, Australian Government, Department of Foreign Affairs and Trade, 2 May 2024 at 2.67–2.68
The MMDA is reported to be highly discriminatory against Muslim women, including by permitting the marriage of girls as young as 12 and allowing marriages to be registered without the woman’s consent. The Sri Lankan Government has reportedly made efforts to reform the MMDA, but those efforts have faced opposition including from Muslim MPs and reforms have not yet passed.[7]
[7] Ibid

Other sources confirm DFAT’s advice that efforts to reform the MMDA which have been ongoing since 2009 continue to be met with strong resistance from religious groups. As well as allowing child marriage, the MMDA allows a male guardian to force his daughter or niece into marriage, even where she objects. It does not mandate that a woman be physically present for her own marriage (nikah) or sign her own marriage documents, rather that role rests with the wali (immediate male guardian) of the bride. Groups such as the Muslim Personal Law Reform Action Group are advocating for reform, but face fierce opposition and regular attacks from conservative religious groups. [8]
[8] 'Muslim women in Sri Lanka still 2nd class citizens – by law', Asia Times, 05 April 2017, CXC9040665259; 'Muslim Women’s Quest for Equality in Sri Lanka', Hyshyama Hamin, Diplomat, The, 12 July 2023, 20231020164940;
Indeed, submissions on the proposed amendments stated to be unanimously agreed by Sri Lanka’s Muslim Members of Parliament in June 2023 note that any amendments should comply with the sources of Islamic sharia law. Those submissions express concern about key characteristics of the proposed amendments including the age of marriage, rulings regarding the wali (guardian) and polygamy. It noted that in a Muslim marriage, the bridegroom and the wali are the sole contracting parties and any consent of the bride should not invalidate the mandatory requirement for the wali’s signature on the marriage registration document, as one of the contracting parties to the marriage. It objected to raising the minimum age of marriage to 18, on the basis that this would not eradicate child marriage and there were still situations that required it. It agreed that polygamous marriages should be regulated by law, but argued that regulation should be conducted by religious authorities rather than the courts.[9]
[9] Muslim-Marriage-and-Divorce-Act.pdf (mmdasrilanka.org)
The Tribunal has accepted that the applicant was subjected to FGM as a child. The UNHCR’s Guidance Note on Refugee Claims Relating to Female Genital Mutilation (the UNHCR Guidance Note) establishes that a girl or woman seeking asylum because she has been compelled to undergo or is likely to be subjected to FGM can qualify for refugee status under the 1951 Convention relating to the Status of Refugees. The UNHCR assesses FGM to be a form of gender‑based violence that inflicts severe harm, both mental and physical, and amounts to persecution.[10]
[10] UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation May 2009 at Microsoft Word – Note on FGM May09.doc (refworld.org)
Other sources indicate that the form of FGM and the conditions under which it occurs varies in Sri Lanka.[11] All forms of FGM are considered harmful, although the consequences tend to be more severe the more extensive the procedure. The UNHCR reports that ‘almost all those who are subjected to FGM experience extreme pain and bleeding and other health complications include shock, psychological trauma, infections, urine retention, damage to the urethra and anus, and even death’. Importantly, the UNHCR Guidance Note cautions that the consequences of FGM do not stop with the initial procedure, rather the girl or woman is permanently mutilated and can suffer other severe long-term physical and mental consequences.[12]
[11] 'FGM in Sri Lanka: It's never 'just a nick'', Aljazeera, 26 December 2007, CXC90406620244
[12] Ibid at paragraph 5
The Tribunal accepts that the FGM to which the applicant was subjected as a child constitutes gender-based violence rising to the level of serious harm, inflicted upon her for the essential and significant reasons of her gender and religion. The Tribunal considers that the harm is indicative of the status of Muslim women in Sri Lanka, which exposes them to risks of child marriage, forced marriage and discriminatory treatment in the areas of marriage, divorce, child custody and inheritance. DFAT assesses that Muslim women face a high risk of official discrimination in relation to personal status because of the MMDA and a high risk of FGM, as well as the moderate risk of gender-based violence that DFAT assesses is applicable to all women in Sri Lanka.[13]
[13] ‘DFAT Country Information Report Sri Lanka’, Australian Government, Department of Foreign Affairs and Trade, 2 May 2024 at 3.147; 3.164
While Sri Lanka has not incorporated apostasy into its criminal laws, it is reported that Sri Lankans wishing to leave Islam find it very difficult to do so. DFAT reports that it is rare for a Muslim to change their religion and persons adopting another religion would face a high risk of ostracisation from their family and the broader Muslim community.[14] Members of the Council of Ex-Muslims of Sri Lanka report receiving death threats such that the organisation has only one public face and conducts its activities in secret. It identifies that one of its main goals is to support Muslim women suppressed by men who use religion as a tool to control them.[15]
[14] ‘DFAT Country Information Report Sri Lanka’, Australian Government, Department of Foreign Affairs and Trade, 2 May 2024 at 3.147; 3.24
[15] Ex-Muslims in Sri-Lanka still have to gather in hiding (humanists.international)
The Tribunal has accepted that since her arrival in Australia, the applicant has explored other religions, occasionally attending Buddhist temple with her former partners without ever converting to or practising Buddhism. The Tribunal has accepted that since about 2020 she has attended various Catholic churches but had no regular practice and did not attend mass. She is currently enrolled in a one-year course in preparation for potential baptism at Easter 2025.
Whether or not the applicant completes that course, or is subsequently baptised into or otherwise recognised as an adherent of the Catholic faith, the Tribunal is satisfied that she has renounced her family’s Muslim faith. The Tribunal has accepted that her extended family are already angry about her interfaith marriage and subsequent divorce and are likely to become even more so if she returns to Sri Lanka and refuses to submit to their demands regarding her marriage or her observance of the Muslim faith, whether or not she seeks to practice any other faith. In such circumstances, the Tribunal accepts there to be a real chance the applicant will face serious harm from her father’s extended family and in particular her cousin [Mr A] including serious physical harassment, violence and forced marriage for the combined reasons of her renunciation of Islam and her membership of the particular social group ‘women in Sri Lanka’.
Effective State protection
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The Tribunal considers that however the applicant identifies her religion, she will be immediately perceived as Muslim as a result of her Muslim name. As noted above, the rights and protections of Muslim women are governed by the MMDA and personal customary laws derived from sharia law, even where those laws are inconsistent with constitutionally recognised ‘fundamental rights’ including the rights to equality and the right to not be discriminated against on the grounds of sex. The MMDA is highly discriminatory against Muslim women, including by allowing male guardians to force women into marriage and register their marriages without their consent.[16] In such circumstances, the Tribunal finds that effective protection measures are not available to the applicant in Sri Lanka, who among other things seeks to resist any forced marriage.
[16] ‘DFAT Country Information Report Sri Lanka’, Australian Government, Department of Foreign Affairs and Trade, 2 May 2024 at 2.67–2.68
Behavioural modification
The Tribunal finds that any modification of the applicant’s behaviour to avoid a real chance of persecution in Sri Lanka on the basis of her gender and religion would conflict with characteristics that are fundamental to her identity or conscience in contravention of s 5J(3), and would be undertaken only to avoid the threat of serious harm that would follow from returning to Sri Lanka as a woman who has renounced Islam. Requiring a person to enter into or remain in a marriage to which that person is opposed is specifically listed as an instance of impermissible behavioural modification in s 5J(3)(c)(v) of the Act.
Does the harm feared by the applicant extend to all areas of Sri Lanka?
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
In considering whether there is a safe area within Sri Lanka in which the applicant would not face a real chance of serious harm, the Tribunal has had regard to DFAT’s advice that while there are no official barriers to internal relocation, structural, economic and societal barriers may sometimes prevent people from doing so.[17]
[17] Ibid at 5.31–5.35
The applicant is a divorced woman, immediately identifiable as Muslim from her name, who does not observe the tenets of that faith or have the support of her family or the broader Muslim community. Notwithstanding her religious beliefs, she will be considered subject to the highly discriminatory provisions of the MMDA as they apply to Muslim women. While [City] would usually be the most likely place of relocation, it is also the residence of the perpetrators of the harm she fears. In these circumstances, the Tribunal is unable to identify any potential safe place in which the applicant could live without a real chance of serious harm. For these reasons, the Tribunal concludes that the real chance of persecution relates to all areas of the receiving country.
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.
Alison Murphy
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.
…

'Burned alive – the fate of another Muslim child marriage', Sri Lanka Brief, 20 May 2017, CXC9040667773

[2024] AATA 4142

4 October 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Natural Justice

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