1905471 (Refugee)

1905471 (Refugee) [2019] AATA 4601 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1905471
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Frances Simmons
DATE:4 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that:
a) the applicant satisfies s.36(2)(a) of the Migration Act; and
b)    the grant of the visa is not prevented by s.91WA.

Statement made on 04 July 2019 at 4:19pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – religion – Muslim – interreligious relationship – particular social group – Muslim women in an interreligious relationship – victim of family violence – physical assault – fear of killing – gender-based violence – intervention by religious leaders – exclusion from the Mosque – genuine and ongoing relationship – threat of forced marriage – decision under review remitted

PRACTICE AND PROCEDURE – whether grant of the visa prevented by s 91WA – loss of passport – reasonable explanation for destruction or disposal of documentary evidence of identity – applicant’s identity accepted as claimed – applicant did not attempt to conceal identity in the visa application process – acts by a third party which involve destroying or removing documents from the applicant’s possession

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 91WA, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72
Briginshaw v Briginshaw (1938) 60 CLR 336
Chan Yee Kin v MIEA (1989) 169 CLR 379
DFE16 v MIBP [2017] FCCA 308
EDI18 v Minister for Home Affairs [2019] FCCA 631
EUR18 v Minister for Home Affairs [2019] FCCA 1002
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Khawar (2002) 210 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
NAQJ v MIMIA [2004] FCA 946
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sullivan v CASA (2014) 226 FCR 555

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 March 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Sri Lanka, arrived in Australia [in] January 2019 and applied for the protection visa on 6 February 2019. She claims she will be persecuted if she returns to Sri Lanka because she is a Muslim woman and she has entered into an interreligious relationship with [Mr A], a Sri Lankan Tamil man of the Hindu faith.
The applicant appeared before the Tribunal on 13 May 2019 and 30 May 2019 to give evidence and present arguments. The Tribunal also took evidence from [Mr A] who is resident in Australia. For the following reasons, the Tribunal has concluded that the applicant is a refugee and the matter should be remitted for reconsideration.

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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that it is relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Claims and evidence before the Department

The applicant is a national of Sri Lanka who arrived in Australia [in] January 2019 as an unauthorised air arrival. Upon arrival she participated in a ‘screening’ interview at [the] airport. In this interview she declared she was born in [City 1] in the eastern province of Sri Lanka on [date]. She is of the Muslim faith and speaks the Tamil language. She claimed that she needed protection because of a ‘religion problem’: she was a Muslim who loved a Hindu Tamil boy and there was a problem with marrying in Sri Lanka. She repeatedly said her life was in danger in Sri Lanka and she referred to being chased and injured before she travelled to Australia. She travelled to Australia to seek protection and also to live safely with her fiancée, [Mr A], who is in Australia. She would have more problems if she returned to Sri Lanka.
In the Tribunal’s opinion the applicant raised claims that potentially engaged Australia’s non-refoulement obligations in the screening interview [in] January 2019. However, the applicant was informed her claims had been assessed her claims as ‘unmeritorious’ and she would be removed from Australia. The applicant subsequently lodged a valid application for a Safe Heaven Enterprise (subclass 790) visa on 6 February 2019. It appears that she was able to lodge this application because she acquired representation and her representative made determined submissions that she should be able to make a protection visa application.
The information the applicant provided with her application for a protection visa and in her screening interview can be summarised as follows:
·The applicant is a Tamil speaking Muslim woman from [City 1], Sri Lanka. Her immediate and extended family are Muslim and she was brought up as a Muslim. She is unmarried. She has lived at the same address in [City 1] from her birth until she left Sri Lanka. She completed her [specified grade] at a Muslim school ([named]) in [City 1].
·The applicant has [specified family members]. Her [siblings] married Muslim [spouses]. Before she travelled to Australia she lived with her mother and [a sibling]. [Other siblings] live nearby in [City 1]. She worked as [an occupation] from 2007 to 2009 and [in a specified position] from June 2010 until January 2019 at [an employer] in [City 1].
·In 2010 applicant began a relationship with [Mr A], a Sri Lankan man from of Tamil ethnicity and Hindu faith who she met while at work at the [employer]. The applicant’s family found out about her relationship with [Mr A] and they disapproved of this relationship and threatened her because [Mr A] is a Hindu. Her father would physically abuse her when she had arguments with him about their relationship.
·The applicant told the delegate that there was gossip in the community about her interreligious relationship and a formal complaint was made to the mosque committee which placed shame upon the applicant and led the committee to visit her house and discuss the situation with her father.
·In 2012 the applicant’s sister disappeared. The applicant believes this disappearance may have been related to the trouble her relationship with [Mr A] caused for her family but she does not know what happened to her sister.
·In 2012, [Mr A] fled from Sri Lanka to Australia by boat because he was wanted by CID for suspected involvement in the Liberation Tigers of Tamil Eelam (LTTE).
·After [Mr A] travelled to Australia he resumed contact with her and they continued their relationship. Her family and relatives found out she was still in contact with [Mr A] and threatened to kill her if she married and lived with [Mr A] because if she married a non-Muslim her family would be removed from the Mosque, stigmatised and shunned in town by other Muslims. She felt like she was constantly being watched and monitored by her relatives wherever she went.
·In 2018, about a month and a half before she arrived in Australia, she was chased by four boys in a three-wheeler auto-rickshaw as she was returning from work on her motor scooter. She could not identify the boys but she feared her relatives had sent them. She got into an accident while getting away from them and required hospital treatment (a medical certificate from the hospital dated [in] December 2018 was provided).
·The applicant fears she will be persecuted because she is in an interreligious relationship. She cannot relocate to another part of Sri Lanka because the stigma of her relationship will follow her. The Islamic community is a close knit; everyone knows each other. She would not be able to live and work elsewhere as a single Muslim woman in Sri Lanka without coming to the attention of the local Muslim community and they would find out who she was and what she had done.
·The applicant fears her mother will have told everyone in her community that she came to Australia to be with a Hindu man. She fears that she will be shunned at home and at work, physically assaulted by her relatives and other members of the Muslim community in Sri Lanka, forced to marry a Muslim man or excluded from the Mosque and denied the right to practice her faith.
·At an interview with the delegate the applicant claimed she was involved in an earlier road accident which occurred approximately in 2017. She also claimed that she was sexually harassed at work due to her relationship with [Mr A].
The Tribunal has considered the post-interview submissions and supporting documentation provided to the Department by the applicant’s representative.

Evidence before the Tribunal

The applicant supplied a copy of the delegate’s decision with the application for review. The delegate accepted that the applicant was an unmarried Muslim woman who entered into a relationship with a man of Hindu faith. The delegate accepted that the applicant was beaten by her father (who has since passed away) after her relationship was discovered but found that there was no evidence that her relationship with [Mr A] was a forbidden relationship. The delegate noted the applicant said that the situation ‘calmed down’ after [Mr A] left Sri Lanka. The delegate did not accept the applicant had been the victim of violence or threats after 2012.
The Tribunal sought and obtained the audio recording of the protection visa screening interview conducted at [the] airport [in] January 2019 (‘the screening interview’). In response to the Tribunal’s inquiries, the Tribunal was informed the audio recording of the protection visa interview on 21 February 2019 had been ‘lost’.
On 24 April 2019, the Tribunal wrote to the applicant and requested that she provide pre-hearing submissions setting out her claims, a statutory declaration setting out why she was not in possession of her Sri Lankan passport when she arrived in Australia and submissions on whether the grant of the visa was prevented by s 91WA of the Act. In response to this request, the Tribunal received: submissions dated 9 May 2019; the representative’s contemporaneous filenote of the delegate’s interview conducted on 21 February 2019; and a Statutory Declaration from the applicant, dated 8 May 2019.
At the hearing on 13 May 2019 the Tribunal took evidence from the applicant and [Mr A]. The applicant was questioned about her identity, background, her relationship with [Mr A] and their interactions in Sri Lanka and in Australia, her interactions with her family members and their reactions to her relationship, her application for a visitor visa in 2018, and her decision in 2019 to travel to Australia to seek asylum. The applicant maintained that she and [Mr A] were in a relationship, wished to live together and intended to marry but her family and the Muslim community in which she lived opposed their relationship. She claimed that, in addition to being beaten by her father because of her relationship with [Mr A], she had also been subject to violence from her maternal [specified relatives], faced pressure to marry one of her uncle’s son, and that she and [Mr A] were threatened by her elder brother since arriving in Australia.
[Mr A] also gave evidence about his relationship with the applicant, his identity, travel history, residence in Australia, interactions with the applicant in Sri Lanka and Australia, interactions with her family, whether he spoke about the applicant his own protection visa application (he did not), the applicant’s application for a visitor visa, and whether [Mr A] and the applicant would be able to live together in Sri Lanka as husband and wife. Where relevant the evidence of the applicant and [Mr A] is referred to below in the assessment of claims and evidence.
The hearing was adjourned and resumed on 30 May 2019. In the intervening period, the Tribunal obtained the applicant’s Visitor visa (Class FA600) file [number] and [her] Detention Centre visitor logs for the period up until 13 May 2019 which show she was visited by [Mr A] over 60 times in immigration detention. At the request of the Tribunal the applicant also provided the biodata page of the Sri Lankan passport of [Mr A] and the negative decisions of the Immigration Assessment Authority (IAA) and the department in relation to [Mr A’s] application for a protection visa.
On 28 May 2019 the Tribunal wrote to the applicant pursuant to s 424A of the Act and invited her to an interview on 30 May 2019 to comment or respond to inconsistencies between her evidence and the evidence of [Mr A] about the threats [Mr A] had faced from her relatives and also [Mr A’s] evidence that he had not referred to their relationship in his application for a protection visa. Where relevant, the applicant’s response to these concerns is discussed further below.
At the hearing on 30 May 2019, the Tribunal indicated that the information in the [detention centre] visitor visa logs supported the applicant’s claims she was in a relationship with [Mr A] and the information in the visitor visa application file was also consistent with her evidence about her claimed identity. The applicant’s representative provided further submissions on 6 June 2019. Where relevant the evidence before the Tribunal is discussed below in the assessment of claims and evidence.

Independent country information

Sri Lanka’s population by religion is dominated by Buddhists, who made up 70.1 per cent of the country’s 20.36 million people, followed by Hindus made up 12.6 per cent, Muslims 9.7 per cent, Roman Catholics 6.2, and ‘Other’ 1.4 per cent.[1] The proportion of each Province’s Muslim population ranged from 3.1 per cent in Northern Province to 37 per cent in Eastern Province.[2]
[1] ‘Census of Population and Housing, Sri Lanka 2012 – Overall Province Summary’, Department of Census and Statistics, Sri Lanka, 1 January 2014, p.[4] section 3.3 & p.[5] Section 3.4, CIS2F827D91845.
[2] ‘Census of Population and Housing, Sri Lanka 2012 – Overall Province Summary’, Department of Census and Statistics, Sri Lanka, 1 January 2014, p.[4] section 3.3 Table 6, CIS2F827D91845
In May 2018 DFAT reported that there is no official data recording the incidence or nature of interfaith/interreligious marriages, ‘but anecdotal information suggests that they are rare.’’[3] According to DFAT:
… Sri Lankan Muslims seem more likely to marry Christians than members of other faiths. A non-Muslim wishing to marry a Muslim must convert to Islam and raise any children as Muslim. DFAT is aware of reports that such conversions are sometimes symbolic. The BBS [Bodu Bala Sena ‘Buddhist Power Force’] has in the past raised concerns over marriages of Buddhist women to Muslim men, couched in terms of Muslim expansionism within Sri Lanka. Within the Muslim community, social stigmas attach to those who marry outside the faith. Marriage between Christians and Hindus is more common than any other kind of interfaith marriage in Sri Lanka, and Christians and Hindus co-exist peacefully in the north. Sinhalese Buddhists sometimes marry Christians. DFAT is not aware of any discrimination against children of mixed marriages. State, rather than religious, law governs most mixed marriages.[4]
[3] ‘DFAT Country Information Report Sri Lanka‘, DFAT, 23 May 2018, p.17 CIS7B839411064; see also DFAT Country Information Report - Sri Lanka‘, DFAT , 18 December 2015, p.10 CISEC96CF14143.
[4] ‘DFAT Country Information Report Sri Lanka‘, DFAT , 23 May 2018, p.17 CIS7B839411064; see also 'Country Advice Sri Lanka. Sri Lanka – LKA39361 – Inter-faith Marriage – Apostasy – Muslims – State Protection', [Refugee Review Tribunal (RRT)], 10 October 2011, CR154B690609.
The Tribunal looked for, but was unable to locate, any specific information about people in Muslim-Hindu marriages or relationships.[5] No information could be located about Muslim women marrying non-Muslim men, although limited reports were located of Muslim men marrying Christian women.[6] The only report located of a Muslim woman in an interreligious relationship was a 2011 newspaper report about a Muslim man who beat his daughter to death for entering into an interreligious relationship.[7]
[5] Sources consulted include CISNET and Internet sites - including news websites, human rights organisations websites and Internet search engines - in English
[6] ‘Mixed and matched’, Mirror Magazine, The Sunday Times (Colombo), 3 March 2002, CX298825 (the article cites a Catholic woman with a Muslim fiancé - ‘”he wasn't a staunch Muslim - if he was, I don't think that I could have gone through with our relationship."’ - saying that her parents objected because of the religious differences and problems they might cause).
[7]‘Muslim father beats daughter to death in Sri Lanka’, 25 December 2011, see also Tribunal file, f.85

In 2018 the Registrar General’s Department reported that the registration of marriages in Sri Lanka is governed by three separate laws. The majority of the people are subject to ‘the General Marriage Registration Ordinance’. Those of the Muslim faith are governed in matrimonial matters by the Muslim Marriage and Divorce Act (1951) (MMDA). The Kandyan Sinhalese have the option of getting married either under the ‘Kandyan Marriage and Divorce Act’ or under ‘the (General) Marriage Registration Ordinance’. The Registrar General’s Department records the number of marriages that occur by marriage type (General, Kandyan, Muslim; per district and nationally).[8]
[8] ‘Vital Statistics 2008-2017’, Vital Statistics Unit, Registrar General’s Department, Ministry of Home Affairs; Second Health Sector Development Project, Ministry Of Health, Nutrition And Indigeneous [sic] Medicine, 2018 p.XIII SUMMARY STATISTICS & pp.12-14 Table 2.1 : Marriages registered by District and Marriage type, 2008 - 2016, 20190529094952
An earlier 2012 report originating from the British High Commission (BHC) in Colombo records that the Sri Lanka Statistics Department does not keep statistical records available regarding mixed marriages (for 1997-2008), but offered ‘a guesstimate that the figure would probably be around 5 in every 100 registered marriages.’ This seems to include ethnically as well as religiously mixed marriages, because BHC stated in general the treatment of persons in mixed marriages ‘depends entirely on the area, plus the family and religious background of each individual case’. No specific reference is made to the situation of Muslim women who marry outside the faith but the reports notes that while marriages between Sinhalese and Tamils are not uncommon ‘some families still have firm views on the issue and we are aware of mixed couples who keep their relationship a secret for fear of upsetting certain family members. […][9]
[9] Second Secretary (Migration) [British High Commission in Colombo, UK Foreign & Commonwealth Office] 2012, ‘[Letter.] Re: Mixed Marriages, Single Mothers and Illegitimacy’ [to Country of Origin Information Service, UK Border Agency (UKBA)], 30 January, reproduced in ‘Sri Lanka. Country of Origin Information (COI) Report. 7 March 2012’, [UK] Home Office, UK Border Agency, COI [Country of Origin Information] Service, 2012 pp.243-246 at 243, CISNET UK Home Office Reports 3523.
In 2008 a Sri Lankan historian noted ‘the limited degree of cross-ethnic marriage throughout Sri Lanka’ ‘(where "Muslim" is ‘ethnic’ by virtue of its relationship of opposition to "Sinhalese" and "Tamil" …)’, observing that while marriages across ethnic boundaries do occur, one can present a broad generalisation that ‘Muslim women have rarely married outside their community, though some Sinhala brides have been absorbed by the community’ and that:

[10] ‘How does one BECOME Sinhalese or Tamil in Sentiment?‘, Roberts M, The Island, 30 April 2008, CXAB8B92D24144.
… for every instance of cross-ethnic marriage in the recent Sri Lankan past one could find another case where an individual who defied community and/or parental preference was disinherited or shunned; and there are surely enough anecdotal tales of boy-girl love interests that were vetoed by parental or sibling fiat.[10]
DFAT reports that Sri Lanka has several systems of marriage according to religious background and geographic location and that sharia (Islamic) law and cultural practice applies to marriages between Muslims. There does not appear to being anything that would preclude a Muslim from entering into an interreligious union under ‘the (General) Marriage Registration Ordinance’, as noted above, the Tribunal could not find any specific reports of Muslim women doing so. Information (not specific to Sri Lanka) indicates that attitudes to interfaith marriage differ for women and men.[11]
[11] See generally (not in the Sri Lankan context) Jana Van Niekerk & Maykel Verkuyten (2018) Interfaith marriage attitudes in Muslim majority countries: A multilevel approach, The International Journal for the Psychology of Religion, 28:4, 257-270; see also
The Muslim Marriage and Divorce Act (MMDA) provides for the unequal treatment of Muslim women and men with respect to marriage and divorce. According to DFAT:
Article 16(1) of the Constitution affirms the validity of the MMDA and unwritten customary laws even where inconsistent with fundamental rights provisions, and Article 80(3) of the Constitution removes the possibility of challenging the legislation itself. The all-male Quazi court system implements the MMDA (women are not permitted to be appointed Quazis), and rulings rarely favour women. A commission established in 2010 to investigate reforms of the MMDA submitted its report in January 2017, but the report has not been made public. Muslim women who advocate for reforms of the MMDA and other rights risk harassment from within the Muslim community.
The MMDA does not recognise marital rape, and the Quazi court system does not have jurisdiction for domestic violence cases. Anecdotal evidence suggests that Quazis often ask Muslim women to tolerate domestic violence from their husbands, which reflects a broader perception that solutions within the Muslim community are preferred to state remedies. Muslim women can access redress under the Prevention of Domestic Violence Act, but in practice many do not. Fewer Muslim women access protection orders as a domestic violence intervention compared to other groups of women.
DFAT assesses that Muslim women in Sri Lanka face a high risk of official discrimination in relation to personal status, as a result of the provisions of the MMDA and its implementation.[12]
[12] ‘DFAT Country Information Report – Sri Lanka’, DFAT, 23 May 2018, CIS7B839411064, p.29
In May 2018 DFAT assessed that Sri Lankan Muslims face a low risk of official and societal discrimination and a low risk of violence.[13] However, in the aftermath of the Eastern Sunday 21 April 2019 terrorist attacks there have been reports of an uptick in violence and discrimination against Muslims in Sri Lanka.[14] Human Rights Watch reported that while the authorities had banned face coverings for women, ‘suspicious employers and neighbours have sometimes demanded women even remove their head scarves’[15], and Muslim groups have received dozens of complaints from across Sri Lanka about members of the Muslim the community being harassed at workplaces, including government offices, hospitals and in public transport since the terrorist attacks.[16]
[13] ‘DFAT Country Information Report – Sri Lanka’, DFAT, 23 May 2018, CIS7B839411064, p.16
[14] ‘In Sri Lanka, Muslims say Sinhala neighbours turned against them’, Fuller L & Rizwie R, Al Jazeera, 21 May 2019.
[15] ‘Fear Returns to Sri Lanka After Bombings’, Ganguly M, Human Rights Watch, 10 May 2019, 20190513142002
[16] ‘Muslims afraid, resentful as ethnic divide deepens in Sri Lanka', Reuters, 10 May 2019, 20190513142148

ASSESSMENT OF CLAIMS AND EVIDENCE

In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[17] Because the applicant claims to have been a victim of family violence and gave evidence while in immigration detention, the Tribunal considers she is a vulnerable witness and has had regard to the Tribunal’s Guidelines on Vulnerable Persons. The Tribunal acknowledges that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[18] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[19]
[17] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.
[18] MIMA v Rajalingam (1999) 93 FCR 220.
[19] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

Nationality and identity

The Tribunal accepts that the applicant is a Sri Lankan citizen from [City 1] in the Eastern province of Sri Lanka. The applicant gave evidence in the Tamil language and she told the Tribunal she also speaks Sinhalese and some English. The Tribunal accepts, as the delegate did, that the applicant’s identity is as claimed. The applicant’s evidence to the Department[20] and the Tribunal about her identity, family composition, residence, education and employment in Sri Lanka has been consistent over time and it is also consistent with the identity documentation she provided with her visitor visa application ([file number])[21] and the identity documents on the Departmental file.
[20] In response to a s91W request from the Department on 7 February 2019 the applicant provided a copy of her Sri Lankan Driver’s Licence and [an employer] work ID. The delegate’s decision record notes the applicant provided her national identity card and drivers’ license as evidence of her identity and that there is no information that raises concern she has given a false identity. In the representative’s filenote of the interview on 21 February 2019, the applicant stated that her National ID, bank card and Driver’s licence are in [custody at the detention centre].
[21] The visitor visa file ([number]) contains copies of the identity documents (biodata passport page, visa label for [Country 1], birth certificate, bank records, employment documents, Sri Lankan identity card) the applicant had provided with her application for a visitor visa, which was lodged on 15 May 2018. Departmental notes on this file record that the Department has no health or character concerns about the applicant. At the hearing the applicant confirmed the Sri Lankan passport ([number]) issued in her name [in] 2015 belongs to her.

Is the grant of the visa prevented by s 91WA?

Under s.65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s.91WA. Section 91WA(1), which requires the Minister to refuse to grant a protection visa to an applicant who provides a bogus document as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship, is expressed in the following terms:
Providing bogus documents or destroying identity documents
(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant's identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
However, the requirement in s91WA(1) will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2).[22]
[22] The provisions of s.91WA of the Act apply to all temporary and permanent protection visa applications made after 18 April 2015 or not finally determined as at that date, including this application.
As there is nothing before the Tribunal to suggest that the applicant has provided a bogus document as evidence of her identity, nationality and citizenship s 91WA(1)(a) does not apply. However, because the applicant was not in possession of a passport when she arrived in Australia by plane, the Tribunal has considered whether the grant of the visa is prevented by s.91WA.
[In] January 2019 the applicant stated she had travelled to Australia to seek asylum because her life was in danger in Sri Lanka and that the person who met her in transit took the passport with him (screening interview, audio 1:07). In her protection visa application she declared that
‘my passport was missing before I arrived in Australia. The person who came with me to Australia must have taken my passport’.
To the Tribunal the applicant gave evidence that she departed Sri Lanka via Colombo airport legally using a genuine passport issued in her own name and travelled to a transit country (she claimed she was not sure what country this was). She claimed she was still in possession of her passport when she boarded the plane to Australia but that she did not have to show this passport when she boarded the plane. She claimed that the man that she met in transit (who also boarded the plane to Australia) must have taken the passport from her while she was sleeping.
The applicant’s representative contends that the loss of her passport was unrelated to her application for a protection visa and that, irrespective of how she lost her passport (or exactly when), her conduct has not undermined the determination of her true identity, nationality and citizenship. It is submitted that following BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72 (BGM16) s 91WA(1) only applies to conduct that occurs in relation to the making of an application of a protection visa and therefore s91WA(1)(b) has no application to this case.
In BGM16 the Court found that the scope of s.91WA(1)(a) is limited to bogus documents provided by applicants as evidence of their identity, nationality, or citizenship in relation to applications for protection visas only. In reaching this conclusion, the Court noted the language of s 91WA(1)(a) is expressed in the present tense and did not directly consider the temporal limits of s.91WA(1)(b).
In EDI18 v Minister for Home Affairs [2019] FCCA 631 Judge Vasta considered whether a protection visa applicant who the Tribunal was satisfied had destroyed his passport en route to Australia was caught by ss.91WA(1)(b). His Honour considered it was significant that the language of ss.91WA(1)(a) is expressed in the present tense whereas the language of ss.91WA(1)(b) is in the past tense. His Honour referred to the second reading speech of the Minister which refers to the operation of s91WA(1) in the following terms:
Presenting bogus documents for the purpose of establishing identity will result in refusal of a protection visa application unless the applicant has a reasonable explanation for presenting them and either provides documentary evidence of their identity, nationality or citizenship, or has taken reasonable steps to do so. The same applies to an applicant who has destroyed or discarded identity documents, which has been a common practice of those who have entered Australia illegally, or has caused that to happen at the hands of another person such as a people smuggler.
Judge Vasta concluded that even if there were a requirement for a temporal link between the destruction of documentation and the application for protection, the second reading speech demonstrated that the applicant was ‘well within that temporal link’.[23]
[23] EDI18 v Minister for Home Affairs [2019] FCCA 631 at [41]. The applicant in EDI18 initially provided false information about his identity to the Department and then provided information about his true identity and made an application for a protection visa. Judge Vasta notes at [34]-[40] in BGM16 the Court gave an example of a situation where it may be said that if ss.91WA(1)(b) did not require a temporal nexus to the making of a protection visa application its application may lead to an unfair result. Judge Vasta considered that the ‘unfairness’ was removed, or at least ameliorated, by s 91WA(2).
The present case is distinct from EDI18. Firstly, the applicant maintains her passport was taken from her and denies destroying or disposing of her passport or causing it to be destroyed or disposed of. Secondly, the Department and Tribunal have accepted the applicant’s identity is as claimed and it is not suggested that she has sought to conceal her true identity in the protection visa application process.
The Tribunal acknowledges that it is well-known that 'people smugglers' who arrange unauthorised passage for asylum seekers may confiscate or order identity papers destroyed. The Tribunal acknowledges that in some circumstances asylum seekers may have little or no control over what smugglers do with their identity documents.
The applicant contends that s 91WA(1) is not intended to apply to destruction of identity documents which has ‘nothing to do with the applicant’s claims for protection’ and ‘where the applicant has made full disclosure of his or her true identity or nationality in the protection visa application’. There are two difficulties with this interpretation of s 91WA(1).
·First, the text of s 91WA(1)(b) is not expressed to be concerned with the destruction or disposal of documentary evidence of a person’s identity for the purpose of concealing their true identity in a protection visa application.
·Second, it is difficult to maintain that where the destruction or disposal of a passport occurs when an applicant is en route to Australia to apply for a protection visa that such conduct is disconnected, either in time or circumstance, with the processes of the Migration Act.
Judicial authority about the application of s 91WA(1)(b) concerns situations where protection visa applicants admitted destroying or disposing of identity documents en route to Australia and then (at least initially) provided false information about their identities to Australian authorities.[24] There has been no judicial consideration of the application of s 91WA(1)(b) to circumstances where an applicant destroyed or disposed or their passport en route to Australia but provided evidence of their true identity upon arrival and did not attempt to conceal their identity in the protection visa application process.
[24] EDI18 v Minister for Home Affairs [2019] FCCA 631 at [41]; EUR18 v Minister for Home Affairs [2019] FCCA 1002
In the Tribunal’s view, based on the plain words of s 91WA and the role of s.91WA in relation to the protection visa process, it would appear that if the Minister (or the Tribunal on review) was satisfied that an applicant destroyed or disposed of their passport with a view to applying for a protection visa in Australia then this applicant would be caught by s.91WA(1)(b), regardless of the exact point in time in which the conduct took place. Although there is no judicial guidance on this point, on one interpretation of s 91WA(1)(b) this same applicant would be caught by s91WA(1)(b) notwithstanding the fact he or she did not attempt to conceal their true identity in the protection visa application process.
The Tribunal has considered the purpose and context of s91WA. The overall objective of s91WA may well be ensuring that the identities of protection visa applicants are capable of being accurately ascertained, however the means of achieving that end would appear to be to discourage those who intend to apply for protection visas from destroying or disposing of their identity documents.
The Tribunal cannot read in or imply words of limitation to s 91WA(1)(b) to avoid any punitive effect of this provision.[25] Section 91WA(2) provides an exculpatory avenue where an applicant has provided or taken reasonable steps to provide documentary evidence of his or her identity and has a reasonable explanation for the destruction or disposal of the identity document.
[25] It is noted that the PAM3 Guidelines clearly contemplate a scenario in which the grant of a protection visa to a person is owed non-refoulement obligations by Australia is prevented by s 91WA of the Act.

Given the lack of judicial guidance on what, if any, circumstantial limits apply to s91WA(1)(b), the Tribunal has proceeded to consider whether it can reach a state of satisfaction that the applicant destroyed or disposed of her passport or caused her passport to be destroyed or disposed of. In ss.91WA(1)(a) it is a matter of fact whether an applicant provides a bogus document whereas in ss.91WA(1)(b) is a matter for the satisfaction of the Minister whether documentation has been destroyed or disposed of.[26]
[26] BGM16 v Minister for Immigration and Border Protection [2017] FCAFC 72, [28]
It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context. However, where, such as in cases involving the potential application of s 91WA, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). The terms of s 91WA(1)(b) require the Tribunal to reach a state of positive satisfaction that the applicant destroyed or disposed of her passport or caused her passport to be destroyed or disposed of.
In the Tribunal’s opinion s 91WA(1)(b) is concerned with deliberate acts by an applicant for a protection visa, being the conduct involved in intentionally destroying or disposing of documentary evidence of a person’s identity, nationality or citizenship or intentionally causing such documentation to be destroyed or disposed of. Such a reading is consistent with the legislative purpose which is to ‘discourage applicants from providing false identity documents, or destroying or discarding existing, genuine documents’[27] as well as the PAM3 Guidelines, which state:
Section 91WA(1)(b)(ii) is included to cover situations where an applicant has not been physically responsible for the destruction or disposal of their documents, but has otherwise caused the documents to be destroyed or disposed of. Such a situation might occur where an applicant gave their documents to another person, with the intention that the other person would destroy or dispose of the documents, meaning that they would not technically fall within the ambit of s91WA(1)(b)(i) as they did not destroy or dispose of the documents personally (emphasis added).
[27] Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014, p. 12, paragraph 57.
In Sullivan v CASA, the Full Federal Court held that when making findings of fact which have ‘serious’ or ‘grave’ consequences to a party, the Tribunal is free to consider the evidence and other materials before it; and that it might express more caution in evaluating the factual foundation for more centrally relevant facts.[28] The Tribunal is not bound to apply the principle in Briginshaw v Briginshaw that the strength of evidence necessary to make a finding may be greater if the consequences of that finding are serious, but it is not prohibited from applying it if it sees fit.[29]
[28] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [120]
[29] Sullivan v CASA (2014) 226 FCR 555, per Flick and Perry JJ, at [121], referring to Briginshaw v Briginshaw (1938) 60 CLR 336, where Dixon J held at 362, ‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences…’.
The Tribunal was concerned that the applicant’s evidence about what happened to her passport en route to Australia was vague, improbable and unpersuasive. However, while the Tribunal has concerns about this aspect of her evidence, the Tribunal also accepts that she has provided evidence of her identity to the Australian authorities and sought to conceal her true identity from the Australian authorities.
To find that s 91WA(1)(b) applies the Tribunal must reach a positive state of satisfaction that the applicant either destroyed or disposed of documentary evidence of her identity, nationality or citizenship or caused a third party to do so. On the available evidence and noting that there is no evidence the applicant has sought \to conceal her true identity from the Australian authorities, to attempt to draw conclusions about what happened to the applicant’s passport or her interactions with the third parties who arranged for her unauthorised passage to Australia is to descend into the territory of speculation and indirect inferences. On the available evidence, the Tribunal cannot reach the requisite level of satisfaction to make a positive finding that the applicant intentionally destroyed or disposed of her passport or caused such documentation to be destroyed or disposed of. Therefore, the Tribunal is not satisfied that s 91WA(1)(b)(i) or (ii) applies in this case.
In the alternative, if the Tribunal had been satisfied that the applicant caused the passport to be disposed of contrary to s 91WA(1)(b), the Tribunal would have found that this provision does not apply as the applicant satisfies s 91WA(2) of the Act.
Based on the evidence provided by the applicant, the Tribunal is satisfied her identity is as claimed and that she meets s 91WA(2)(b). With respect to whether the applicant has a reasonable explanation for destroying or disposing of the documentary evidence of her identity for the purpose of s91WA(2)(a), the Tribunal has had regard to the applicant’s individual circumstances and the reasons she gave for seeking asylum as well as the PAM3 Guidelines which state that a reasonable explanation ‘may include acts by a third party which involve destroying or removing documents from the applicant’s possession and theft of belongings, including travel documents’.[30]
[30] The PAM3 Guidelines also note that a reasonable explanation ‘would not include the deliberate destruction or disposal’ of identity documentation’.
The applicant’s evidence is, in essence, that she did not have control over the actions of the third party who removed her passport from her possession. People smuggling is an abusive and organised criminal enterprise and, as noted above, smugglers who arrange unauthorised passage of asylum seekers may confiscate or order passports to be destroyed or disposed of.[31] The Tribunal accepts that, as a consequence of the actions of smugglers, the applicant arrived in Australia without her passport. The applicant sought asylum in her true identity and complied with requests to establish her identity for the purpose of her protection visa application. The applicant explained why she was compelled to travel to Australia in the circumstances that she did to seek asylum and, for the reasons given below, the Tribunal finds that her fear of persecution is well-founded and that she is a refugee.
[31] See, for e.g., Barker, Cat (2013) “The People Smuggler’s Business Model Parliament of Australia,” Foreign Affairs, Defence and Security Section Research Paper No. 2/2012–13.
In these circumstances, the Tribunal makes an alternative finding that as the applicant satisfies s 91WA(2)(a) and (b), s 91WA(1) does not apply.
The grant of the visa is not prevented by s 91WA.

Consideration of the applicant’s claims

The applicant claims that she has a well-founded fear of persecution because she is a Muslim woman who fell in love with a Tamil Hindu man from Sri Lanka. She claims this relationship will not be accepted by her family or the religious community in which she lives and that if she returns to Sri Lanka it will be known to her family and her community that she travelled to Australia to pursue an interreligious relationship and, as a consequence, she will face persecution.

An unmarried Muslim woman from [City 1]

The Tribunal accepts that the applicant is an unmarried woman of the Muslim faith from [City 1] in the Eastern province of Sri Lanka. The Tribunal finds her evidence about her family composition, education, employment and place of residence in Sri Lanka was consistent with her evidence to the Department and the information in her visitor visa application, as well as publicly available information about Islamic schools and [institutions] in [City 1]. Muslims represent a significant percentage of the population in [City 1] and the applicant readily described her religious practice in Sri Lanka and identified the mosque attended by her family in [City 1]. She has explained that women were not allowed to pray at the mosque (apart from at festival times or occasionally at night after fasting). When the Tribunal referred to reports that most Muslim women in Sri Lanka do not wear the hijab,[32] she said that as her father was born in [a named town] and then moved to [City 1] and he did not force her to wear the hijab but on her mother’s side all the women wore the hijab.
[32] Ameena Hussein, Fighting for the soul of Islam in Sri Lanka, 2 May 2019, The New York Times .
On the evidence before it, the Tribunal accepts that the applicant is an unmarried woman of the Muslim faith. The Tribunal accepts that before she travelled to Australia she resided at the same address in [City 1] all her life (the family home). The Tribunal accepts that before she travelled to Australia the family home was occupied by the applicant, her mother, and [specified] family. The Tribunal accepts that, while the applicant occasionally stayed with a Muslim family in [another city] when she was working, her usual place of residence is the family home in [City 1]. The Tribunal accepts that the applicant’s [specified siblings] live nearby, that her father passed away in 2016, and that her [sister] disappeared in 2012.

An interfaith relationship

The applicant claims that the reason she fears harm in Sri Lanka is because she has fallen in love with a Tamil man of the Hindu faith. She claims that the man she has fallen in love with, [Mr A], is resident in Australia and that they plan to marry. In oral evidence [Mr A] corroborates these claims. The Tribunal considers the applicant and [Mr A] have provided a consistent account of how they first met when he came to her workplace as [an occupation]. The applicant and [Mr A] gave evidence that [Mr A] lived in [City 1] with his sister and that he did not go to the applicant’s home because of the problem with her family. The applicant gave evidence that [Mr A] gave her a ring when she was in Sri Lanka and that he was now [age] and she was [age] and he was still waiting for her; she had never seen a person in her community like him. When asked what sort of marriage ceremony they would have, she said he never forced her to follow his religion; he had always respected her faith. She thought if she married him she may become a Hindu. Asked how she felt about this, she said he had never forced her to do this; he said to continue with her faith and whatever God you follow, follow that. The applicant gave evidence that she travelled to Australia to protect her life and to be with [Mr A], who has been resident in Australia since August 2012. She told the Tribunal that [Mr A] came and visited her every day in immigration detention and brought food and everything. He visits her seven days a week: two hours after work and all day on Sunday.
The applicant told the Tribunal that around six months after their relationship began her father came to know she was in love with [Mr A]. After her father became aware of her relationship with [Mr A] he demanded she stop seeing him and beat her. However, despite being warned against seeing [Mr A] she continued to see him, mostly on her way to and from work and on two occasions at his home. She claimed that people from her community saw her and [Mr A] together and that her father beat her many times. She claimed that when the mosque committee found out about her relationship with [Mr A] everyone gathered at her family home and she was pressured to end the relationship. In evidence she referred to her body being swollen because of the way ‘they beat her’ and, when asked who she meant when she said ‘they beat her’, she responded that her father beat her and also her mother’s [specified relatives]. Questioned further, she [listed her mother's relatives], two of whom lived in [City 1]. She claimed that when her father beat her one [of these relatives] was also present and that she was also pressured to marry one of her uncle’s sons. She claimed that up until her father passed away in 2016 he was beating her but he also protected her from other family members: he said she was his daughter and whatever the problem was he would sort it out.
The applicant told the Tribunal that [Mr A] travelled to Australia in 2012 because he had problems with the Criminal Investigation Division because of his suspected involvement with the LTTE. After [Mr A] arrived in Australia he contacted her by telephoning her office phone number and when she was in her office she would speak to him over the phone and they also stayed in touch via [social media] (she provided her [social media identity] to the Tribunal). She did not tell her work colleagues about him but people knew she fell in love with him as his pictures were in his phone. She first started thinking about travelling to Australia in 2012 when her family and community found out about their relationship. Then, after [Mr A] travelled to Australia, she would talk to him at work and tell her troubles. She couldn’t seek help in her community and when they came to know she was in love with [Mr A] they hated her. The applicant told the Tribunal that sometime in 2016, she couldn’t remember exactly when, she decided to leave Sri Lanka. She told the Tribunal that [Mr A] was the only person she knew in Australia. She gave evidence she applied for a visitor visa with [Mr A’s] assistance (her evidence was that he told her to obtain a visa to [Country 1] to get travel experience and when she applied for a visitor visa in 2018 she stated she was coming to visit another person in Australia but she didn’t know this person; this person knew [Mr A] and she spoke to them over the phone).
The applicant gave evidence that after [Mr A] travelled to Australia her [relatives] wanted to force her to marry one of her uncle’s sons as in her community it would be shameful if she married [Mr A]. She claimed that when her father was alive there was talk like this but after her father’s death she was afraid that they would really force her to marry a (named) person. It was put to her that she remained in Sri Lanka for over two years after her father died and that she did not marry during that time. The applicant said she had been beaten and her uncle’s son approached her sexually and tried to hug her. She said he knew he had an affair with another girl, she knew he was not in love with her but to break her love affair they tried to force her to marry him. Asked how she was able to avoid the pressure to marry, the applicant told the Tribunal she said that she would commit suicide if forced to marry. She said that mentally and physically she was abused very badly and she didn’t know what to do. When the Tribunal asked her to explain why she did not speak about her problems with her [relatives] before the Department, the applicant said that she did mention that she had problems with her community and she was very upset as she did not have her documents. She could not tell everything to her lawyer because of problems with Malaysian Tamil interpreter. She also did not sleep much at [the] detention centre; she had nightmares.
In the interview with the delegate and to the Tribunal the applicant also raised a claim (not referred to her in written claims or the screening interview) that her father threatened [Mr A], there was an argument, and her father slapped [Mr A]. She told the Tribunal that she was not there when these threats occurred but she was told about this incident by [Mr A]. The Tribunal was concerned that the applicant claimed that [Mr A] was threatened and slapped by her father before he left Sri Lanka whereas [Mr A] denied meeting her father and also denied telling the applicant that he was threatened by her father. In the Tribunal view, the inconsistencies between the evidence of the applicant and the [Mr A] about the threats the applicant made against [Mr A] have not been credibly explained. The Tribunal also had concerns that [Mr A] told the Tribunal did not refer to the applicant or their relationship in his application for a protection visa or in interviews with immigration officials in Australia. In response to these concerns the Tribunal was told it had been intended that the applicant would join [Mr A] in Australia after his immigration status was resolved by applying for a partner visa and that [Mr A] did not want to bring trouble to the applicant in Sri Lanka by mentioning their relationship in Sri Lanka.
Also of concern: the applicant told the Tribunal [Mr A] had received a threatening phone call from her eldest brother in Australia (she claimed she had written down [Mr A’s] phone number in Sri Lanka and her eldest brother was able to contact him) whereas [Mr A] referred to speaking her older brother on the telephone when she called him from his Sri Lanka and she introduced him to her brother over the phone. While [Mr A] gave evidence that her brother did not want to speak him, his evidence in this respect differed from the applicant who told the Tribunal she contacted [Mr A] from her workplace, not the family home. Given that appears that the applicant was able to contact [Mr A] in Sri Lanka in the presence of family, the Tribunal has considered whether she has exaggerated the threats she and [Mr A] have encountered from her relatives in Sri Lanka. However, while the Tribunal did not find the applicant’s evidence about the threats made against [Mr A] by her family members to be credible, overall the Tribunal found the applicant’s core claim – that she is in an interreligious relationship with [Mr A] – to be persuasive.
The Tribunal considers that [Mr A’s] evidence supports the applicant’s claims that she is in a long-term, genuine and going relationship with a man of Hindu faith. Based on the evidence before it, the Tribunal accepts that [Mr A] is a Sri Lankan citizen of the Tamil ethnicity and Hindu faith and that before he travelled to Australia in August 2012 he was resident in [City 1].[33] In February 2020 the Federal Circuit Court will hear his application for judicial review of the IAA’s decision to affirm the department’s decision to refuse to grant him a protection visa. He gave evidence that before he travelled to Australia in August 2012 he lived his sister and that he travelled to [Country 2] in 2011 for four or five months and previously travelled to [another country] between 2000 and 2007 to work as [an occupation]. The Tribunal is satisfied that his evidence about his identity, ethnic and religious background, travel history and previous place of residence in Sri Lanka is consistent with the evidence he has previously provided to the Australian authorities.
[33] The Tribunal was provided with a copy of [Mr A’s] [identity documents in Australia], his passport biometrics page and the decision of the department and the IAA in relation to [Mr A’s] application for a protection visa. Both department and the IAA found [Mr A] had provided sufficient evidence of his identity, which was consistent with his narrative and biometrics and provided multiple identity documents which were internally consistent.
[Mr A] told the Tribunal that he is in a relationship with the applicant and that they hope to marry and live together. [Mr A’s] evidence about how he met the applicant and how he re-established contact with her after he travelled to Australia was consistent with that of the applicant as was their evidence about the applicant’s unsuccessful attempt to obtain a visitor visa to travel to Australia in 2018. [Mr A] was familiar with the composition of her family and, in broad terms, with the ill-treatment she received from family members. [Mr A] and the applicant both told the Tribunal that he found out she had arrived in Australia when she called him from the airport (before her phone was confiscated by Border Force). While the Tribunal did have concerns that the applicant appeared to be unaware of [Mr A’s] travel to [Country 2] in 2011, a period during which she claims that they were in a relationship, the Tribunal accepts that they were not living together or seeing each other on a regular basis and that as [Mr A] travelled for work the applicant was not always aware of his whereabouts.

Overall, the Tribunal considers the weight of evidence in this case indicates that the applicant and [Mr A] are in a genuine and ongoing relationship. After the hearing, the Tribunal obtained visitor visa records for [her] immigration detention. These records show that since the applicant was taken into immigration detention [Mr A] has visited her on over 60 occasions, after work on week days and for full days on the weekend. The Tribunal places weight on these records as a contemporaneous record of the couple’s ongoing commitment to each other: it was not suggested that the Tribunal obtain such records but when the Tribunal did so it found such records to be consistent with the evidence of [Mr A] and the applicant, which is that they deeply committed to each other and wish to live together as a couple. The Tribunal also accepts, having reviewed the applicant’s visitor visa file and the evidence of the applicant and [Mr A], that the applicant’s visitor visa application was accompanied by supporting documentation from a person known to [Mr A]’. The Tribunal accepts that in May 2018 the applicant applied for a visitor visa for (the unstated purpose) of reuniting with [Mr A]. The Tribunal accepts that the applicant applied for a visitor visa because of the problems she was experiencing as a Muslim woman in Sri Lanka and because she wished to pursue her relationship with [Mr A].
Factual findings
Having considered all the evidence before it, the Tribunal finds that the applicant is an unmarried Muslim woman from [City 1] in Sri Lanka and that she is in a genuine and ongoing relationship with [Mr A], a Sri Lankan citizen of the Tamil ethnicity and the Hindu faith, who is currently resident in Australia. The Tribunal finds that the applicant and [Mr A] are in a genuine and ongoing relationship, wish to live together as a couple, and intend to marry. The Tribunal accepts that applicant met and fell in love with [Mr A] before he left Sri Lanka in August 2012 and that after [Mr A] travelled to Australia he resumed contact with the applicant and that the applicant ultimately travelled to Australia to pursue her relationship with [Mr A]. The Tribunal has carefully considered the applicant’s claims she is at risk of harm in Sri Lanka because of her relationship with [Mr A] and, in particular, the possibility that she has exaggerated the difficulties she faced in Sri Lanka because she entered into an interreligious relationship.
The Tribunal considers the applicant’s claims are highly plausible in the context of the country information about the situation of Muslim women in Sri Lanka and stigma that attaches to people – particularly women – who seek to marry outside their faith. The Tribunal accepts that both her family and her community disapproved of her desire to marry a Tamil Hindu man and that in pursuing a relationship with [Mr A] the applicant has acted in defiance of the social and religious mores of her family and her community. The applicant told the Tribunal that since she has arrived in Australia she has spoken to [one] brother 5 or 6 times and that as she had been in Australia for almost four months and her family and her community will have come to the conclusion she is with this Hindu boy now and living with him. She told the Tribunal about two incidents were she was chased and harassed by boys in her community after she was returning from work. She explained that on the second occasion she knew she was being targeted because of her relationship because the boys who harassed her referred to her relationship with a Hindu boy and made sexual remarks.
Having carefully considered the evidence before it, the Tribunal formed the view that, in making the claim that her father slapped [Mr A], the applicant ‘yield[ed] to [the] temptation to embroider’ her evidence, in an effort to bolster her claims to protection.[34] Therefore, the Tribunal does not accept that [Mr A] was ever threatened by the applicant’s father and nor does the Tribunal accept that [Mr A] considered himself to be at risk of harm in Sri Lanka because of his relationship with the applicant at the time he travelled to Australia. Considering the country information and the applicant’s determination to pursue an interreligious relationship in contravention of cultural and religious mores, on one view, it might be considered ‘hardly surprising’, as Gummow and Hayne JJ noted in Abebe, that she succumbed to that temptation to embroider her evidence. Nevertheless, although the Tribunal has reached the view she embellished and exaggerated aspects of her evidence about the threats made by her relatives against [Mr A] and that raises questions about her reliability as a witness, having considered her evidence the Tribunal is prepared to afford her the benefit of the doubt with regard to the overall assessment of her claims about her personal experiences in Sri Lanka.
[34] Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] per Gummow and Hayne JJ.
On the evidence before it, the Tribunal accepts that the applicant was subject to family violence as well as social opprobrium and harassment from the members of Muslim community because she entered into a relationship with [Mr A]. Having considered the country information and the applicant’s testimony, the Tribunal accepts that the applicant’s family and the committee of her local mosque disapproved of her relationship with [Mr A]. The Tribunal accepts that her father beat her when he discovered she was in a relationship with [Mr A]. Family violence targeting women remains pervasive throughout Sri Lanka and cross-cuts all sectors of Sri Lankan society.[35] Reporting instances of domestic violence remains culturally taboo, leading to widespread under-reporting.[36] The applicant was emotional when she described the violence she suffered at the hands of her father and also her belief he was protecting her from other family members and the Tribunal accepts her evidence about this issue.
[35] ‘Broken Promises: The Plight of Women in Sri Lanka and its Economic Costs’, Talking Economics, 1 March 2013, CIS27886
[36] ‘Sri Lanka: Women’s Insecurity in the North and East’, International Crisis Group (Asia Report
On the evidence before it, the Tribunal accepts that the applicant was a victim of family violence, that the mosque committee was informed she had entered into her interreligious relationship, visited her family home, and prevailed upon her father to prevent the relationship, and that she was stigmatised by members of the Muslim community. The Tribunal found the applicant’s evidence that, once it became known she had fallen in love with a man of Hindu faith, she felt like she was kept under surveillance by her family and the community in which she lived to be persuasive. Gossip is one way that communities can stigmatize, shame and police women who are perceived to have contravened societal expectations about how they should behave. In this context, the Tribunal accepts that the applicant was harassed and taunted by young Muslim men in late 2018 on her way home from work before she left Sri Lanka and that, when these men insulted her, they referred in a derogatory way to her relationship with [Mr A]. The Tribunal accepts that this harassment caused the applicant to have a traffic accident for which she required hospital treatment. The Tribunal is also prepared to accept that there may have been an earlier incident where the applicant was harassed by young men on the way home from work but, as the applicant’s evidence was that at the time she did not think this incident was linked to her relationship with [Mr A], the Tribunal is not satisfied that she was targeted on this occasion because she had entered into an interreligious relationship.
The Tribunal accepts that [Mr A] left Sri Lanka in August 2012 and, once in Australia, reestablished contact with the applicant. The Tribunal accepts that the couple initially discussed partner migration and then later, with the assistance of [Mr A], the applicant applied for a visitor visa to travel to Australia with a view to reuniting with [Mr A] but this application was unsuccessful. The Tribunal accepts that the applicant is committed to her relationship with [Mr A] and will seek to continue this relationship in the future. The Tribunal acknowledges that [Mr A’s] status in Australia is uncertain. Whether [Mr A] returns to Sri Lanka in the reasonably foreseeable future or remains in Australia, the Tribunal finds that the applicant’s commitment to her relationship with [Mr A] would remain resolute. The Tribunal accepts that if [Mr A] were to return to Sri Lanka the applicant would seek to pursue their relationship and that, if [Mr A] were to remain in Australia, the applicant would, at least in the reasonably foreseeable future, seek to continue their relationship online and continue to resist familial and community pressure to marry a man of Muslim faith.
The applicant has raised other claims. She has claimed that her [sister], who was born in [year], went missing in 2012. The applicant did not know exactly what happened to her sister but gave evidence that her sister went missing at the time the Mosque committee became aware of her relationship with [Mr A]. She explained that because of her problem it was difficult for her mother to find marriage proposals for her sister because people were avoiding her family. She told the Tribunal that they still do not know what happened to her sister: a complaint was made to the police but nothing could be found out about her. The Tribunal is prepared to accept that the applicant’s consistent evidence that her [sister] disappeared in 2012 but is not satisfied, based on the available evidence, that this disappearance was related to the applicant’s interreligious relationship becoming known within the local Muslim community.
To the delegate the applicant complained of being sexually harassed at work and of being harassed by senior staff who rubbed up against her and that her peers told her not to take it seriously and that if she reported it her employment would be terminated. The Tribunal finds this account of sexual harassment in the workplace highly plausible. The Tribunal did not explore with the applicant whether the sexual harassment related to the relationship with [Mr A] (the Tribunal accepts that women who are shamed or stigmatised by gossip in their community may be particularly vulnerable to sexual harassment) however, having accepted the core elements of the applicant’s claims, it is unnecessary to consider this claim further.

Whether there is a real chance the applicant will face serious harm in Sri Lanka

Having accepted that the applicant is a Sri Lankan Muslim woman who has entered into an interreligious relationship with a Sri Lankan man of Hindu faith and Tamil ethnicity, the Tribunal has considered the situation for the applicant if she returns to Sri Lanka now or in the foreseeable future. For the following reasons, the Tribunal is satisfied that there is a real chance that she will suffer serious harm from family members and members of Muslim community should she return to Sri Lanka for reasons of her membership of a particular social group of Muslim women who have entered into an interreligious relationship.

A well-founded fear of persecution

Under s.5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[37] Section 5J(4) requires that, for a fear to be well-founded, one or more of the reasons in s.5J(1)(a) must be the essential and significant reason for the persecution, it must involve serious harm, and must involve systematic and discriminatory conduct.
[37] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA.
The Tribunal accepts that the applicant has a subjective fear of being persecuted by family members and members of the Muslim community as required by s.5J(1)(a) of the Act. The Tribunal has considered whether, when the question is examined objectively as required by s. 5J(1)(b), there is a real chance the applicant will be persecuted if returned to her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 percent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal accepts interreligious unions involving Muslim women and Hindu men are extremely rare and that may be seen by members of Muslim communities in Sri Lanka as contravening their religious beliefs and practices. The Tribunal accepts that the applicant’s family and her local religious community disapproved of her relationship with [Mr A] and sought to prevent her from entering into such union through the use of violence, threats, and the social surveillance and stigmatisation of the applicant. The applicant’s evidence is that her father died in 2016. However, she told the Tribunal that she is afraid of other family members, particularly her [siblings] and her maternal [specified relatives]. She has also claimed that she is at risk of harm from members of the Muslim community because she will be seen as acting against her religion.
The Tribunal accepts that if the applicant were to return to Sri Lanka now, there is a real chance that the fact she travelled to Australia to pursue a relationship with a Tamil man of Hindu faith in Australia will be known within her family and within her community. The Tribunal notes that reported instances of Muslim women successfully entering into interreligious relationships or marriages in Sri Lanka could not be located The Tribunal accepts that she has acted in contravention of the wishes of her family and her religious community by entering into a relationship with a man of another faith and that, if she were to return to Sri Lanka, the fact that it will be known that she left Sri Lanka to pursue an interreligious relationship would likely trigger social opprobrium and possibly violence from her relatives and community members. The Tribunal accepts that the applicant is a determined and independent minded person who has pursued her relationship with a man of another faith notwithstanding the fact that, as a consequence, she has faced threats to her liberty, physical ill-treatment and harassment, social stigmatisation and opprobrium of her community members.
The Tribunal finds that the persecution the applicant fears involves serious harm to her as it involves significant physical harassment or ill-treatment and a threat to the applicant’s liberty (her freedom to marry who she chooses). The Tribunal accepts that if she returns to Sri Lanka she will be unable to live a life free from coercive force of societal and religious expectations of her family and members of the Muslim community. The Tribunal accepts that because she has entered into an interreligious relationship there is a real chance that she will be physically harassed and ill-treated, monitored by her family members and members of community and, having been stigmatised for entering into an interreligious relationship, may be excluded from her religious community or coerced into marrying a man of her own faith.
The Tribunal finds that the persecution the applicant fears involves systematic and discriminatory conduct in that it is deliberate or intentional and involves her selective harassment for reason of her membership of a particular social group of Muslim women who have entered into interreligious relationship. It is well-established that women are capable of forming a particular social group.[38] The Tribunal finds that Muslim women in Sri Lanka in interreligious relationships share, or are perceived as sharing, a characteristic that is an innate or immutable, namely their gender, as well as characteristics that are fundamental to their identity and conscience, namely their faith and chosen relationships, and that these characteristics distinguish this group from society at large as required by s.5L of the Act. The Tribunal also considers that as the applicant is at risk of harm because she has entered into an interreligious relationship that contravenes the rites and customs of the Muslim community in which she lives the persecution she faces can also be understood as being for reasons of religion[39] as well as her membership of a particular social group of Muslim women.
[38] MIMA v Khawar (2002) 210 CLR 1.
[39] NAQJ v MIMIA [2004] FCA 946 (Branson J, 22 July 2004) at [18].
The Tribunal finds that the applicant has a well-founded fear of persecution in her home area of [City 1]. The Tribunal acknowledges that country information indicates that there has been an uptick in the level of societal discrimination and violence against Muslims and that such discrimination intersects with gender discrimination. If the applicant were to attempt to relocate away from [City 1] where she has family ties and where there is a significant Muslim population, the Tribunal considers it is likely she would encounter discrimination in employment[40] and in securing accommodation and that this situation will also increase her vulnerability to gender based harassment, violence and stigmatisation. However, aalthough the consideration of the internal relocation principle under the Convention requires an assessment of whether it would be reasonable for an applicant to relocate to another part of the country, no such consideration arises under the codified definition of refugee.[41] Therefore, the Tribunal has considered whether the real chance that the applicant will face persecution relate to all areas of Sri Lanka.
[40] DFAT Country Information Report Sri Lanka‘, DFAT, 23 May 2018, p.26 CIS7B839411064
[41] DFE16 v MIBP [2017] FCCA 308 (Judge Smith, 10 March 2017) at [26].
The Tribunal accepts that if the applicant were to return to Sri Lanka it would be known within her community that she travelled to Australia to pursue an interreligious relationship and that there is a real chance that, upon her return, this would trigger violence and severe stigmatisation from members of the Muslim community and/or her relatives. The Tribunal has considered the applicant’s evidence that she could not live elsewhere in Sri Lanka as there were mosques throughout the country and the Muslim communities have close connections with each other. The applicant claims that her family members may have informed the entire community that she has entered into a relationship with a Hindu man and that where ever she went there would be danger. She told the Tribunal that her community people are very strict – they will try to kill her. She said [one] brother is also very angry and has threatened to kill her and also threatened [Mr A]. She said that [another] brother was ok but she couldn’t trust him. Even allowing for the possibility that the applicant had exaggerated the threats made against her and [Mr A] by her [brother], the Tribunal accepts that her family and community are opposed to her relationship.
The Tribunal accepts that there is a real chance that the applicant will be identifiable as a Muslim woman who has entered into an interreligious relationship where ever she is in Sri Lanka. The Tribunal accepts that, if the applicant’s fiancée were required to Sri Lanka in the reasonably foreseeable future, she would seek to continue her relationship with him. In the event that [Mr A] did not return to Sri Lanka the Tribunal accepts that she would endeavor to continue this relationship online and that she would continue to resist familial and community pressure to marry a man of her own faith. The Tribunal accepts the applicant has a [social media] account which she uses to communicate with [Mr A], that members of her family live in different parts of Sri Lanka, including Colombo and [another town], and that rumours about her relationship may be spread online and outside of [City 1]. The Tribunal accepts that there is a real chance that rumours about the applicant’s relationship with a Hindu man may follow her wherever she goes in Sri Lanka, particularly as she cannot be required to conceal either her faith or her chosen relationship to avoid the risk of harm.

The Tribunal accepts that as a Muslim woman who has entered into an interreligious relationship the applicant will be without family support and vulnerable to gender-based violence and severe stigmatisation wherever she is in Sri Lanka. The Tribunal accepts that the real chance that the applicant will face serious harm because of her membership of a particular social group of Muslim women who have entered into interreligious relationships relates to all areas of Sri Lanka: s.5J(1)(c).

Effective protection measures are not available

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). While it is possible to point to some progress on policies and plans to protect women against sexual and other violence,[42] the situation of women and – in particular Muslim women -- at risk of gender-based violence in Sri Lanka remains dire. Independent sources indicate that perpetrators of domestic violence act with relative impunity despite the existence of domestic violence legislation.^[43] Despite the passage of the Prevention of Domestic Violence Act (PDVA) in 2005 access to protection for women facing family violence remains out of reach: less than 1 percent of female victims of domestic violence seek protection under the PDVA, in part due to shortcomings within the Act itself, and in part due to social and cultural norms discouraging women from seeking legal recourse.[44] A minute fraction of perpetrators of sexual or domestic violence are remanded or punished.[45] Services to assist survivors of rape and family violence, such as crisis centres, legal aid, and counselling, are scarce.[46] There are credible reports that corrupt police officers accept bribes to turn a blind eye to domestic violence[47] as well as reports that the authorities themselves are sometimes the perpetrators of gender-based violence and exploitation.[48] Language barriers for Tamil speaking women coupled with the low number of female police officers means that women’s ability to report crimes such as family violence and seek support is compromised.[49]
[42] ‘Human Rights Watch World Report 2018’, Human Rights Watch, 18 January 2018, NGED867A63, p.511.
[43] ‘Freedom in the World 2018 – Sri Lanka’, Freedom House, 5 April 2018, NGED867A635 ‘Country Reports on Human Rights Practices for 2017 – Sri Lanka’, US Department of State, 20 April 2018, OGD95BE927333, p.9.
[44] ‘Domestic violence in Sri Lanka – the power of alternative discourse’, Open Democracy, 6 March 2015
[45] ‘Country Reports on Human Rights Practices for 2017 – Sri Lanka’, US Department of State, 20 April 2018, OGD95BE927333, p.17 ; ‘Country Information Report – Sri Lanka’, DFAT, 24 January 2017, CISEDB50AD105.
[46]‘Country Reports on Human Rights Practices for 2017 – Sri Lanka’,US Department of State, 20 April 2018,p.17.
[47] ‘Sri Lanka – Country Information Report’, DFAT, 24 January 2017, p.22-23, CISEDB50AD105, p. 23.
[48] ‘Sri Lanka's Conflict-Affected Women Dealing with the Legacy of War’, International Crisis Group, 28 July 2017, CISEDB50AD4992, p.10; ‘Report of the Special Rapporteur on minority issues on her mission to Sri Lanka’, UN Human Rights Council, 31 January 2017, CISEDB50AD346, p.12.
[49] "Sri Lanka - Country Information Report", DFAT, 24 January 2017, p.22-23, CISEDB50AD105; ‘DFAT Country Information Report – Sri Lanka’, DFAT, 23 May 2018, CIS7B839411064, p.26-27.
The country information indicates that the risk of gender-based violence is particularly acute for Muslim women who face legally entrenched discrimination and as well as significant barriers seeking protection and redress from gender-based violence. As noted above, the MMDA does not recognise marital rape and the Islamic Quazi court system does not have jurisdiction for domestic violence cases.[50] The MMDA also does not provide a minimum age for marriage and entrenches a lack of equal autonomy and decision making for Muslim brides.[51] In 2017, it was reported:
Discrimination under the MMDA takes multiple forms. Under the Act, adult women need the consent of male guardians to marry while men can marry up to four times, without any conditions. Husbands have a right to unilateral and unconditional divorce while wives have to prove fault, show evidence, produce witnesses and go through multiple hearings before Quazis, a position which the MMDA reserves for exclusively for ‘male Muslims of good character’ though it is paid for from public funds.^[52]
[50] ‘DFAT Country Information Report – Sri Lanka’, DFAT, 23 May 2018, CIS7B839411064, p.29
[51]Hyshyama Hamin & Hasanah Cegu Isadeen, ‘Unequal citizens: Muslim Women’s Struggle for Justice and Equality in Sri Lanka”, October 2016
[52] Gender-just laws versus “divine” law in Sri Lanka, Open Democracy, 4 April 2017.
The obstacles Muslim women face accessing justice in Sri Lanka are detailed in a 2016 report, ‘Unequal citizens: Muslim Women’s Struggle for Justice and Equality in Sri Lanka”, which records that:
In the MMDA adult Muslim women are considered minors, as they are unable to enter a marriage of their own free will and require the permission of a male guardian. The concept of wali restricts women’s individual and equal agency and autonomy in familial matters. These provisions are entrenched in the patriarchal notion that women’s decision-making ability in marriage is controlled by male members of her family and by extension - community.[53]
[53] Hyshyama Hamin & Hasanah Cegu Isadeen, ‘Unequal citizens: Muslim Women’s Struggle for Justice and Equality in Sri Lanka, October 2016, p.11.
There are recent reports of Muslim women and girls being married and subsequently facing sexual and physical abuse.[54] Anecdotal evidence suggests that Quazis, who can be any ‘Muslim man of good character’, often ask Muslim women to endure domestic violence.[55] While Muslim women can theoretically access redress under the Prevention of Domestic Violence Act, in practice many do not.[56] Despite evidence that official discrimination against Muslim women in relation to their personal status creates an environment in which they are particularly vulnerable to gender-based violence, human rights groups state that there has been no discernible progress on reforming laws that disadvantage Muslim women in marriage and divorce.[57]
[54]Ibid; ‘New Report Highlights Shocking Degrading Of Muslim Women Through Existing Act’, Colombo Telegraph, 13 November 2016, CX6A26A6E12789; Muslim Personal Reforms Action Group, Sri Lankan Case Studies, available online < >
[55] ‘DFAT Country Information Report – Sri Lanka’, DFAT, 23 May 2018, CIS7B839411064, p.29
[56] ‘DFAT Country Information Report – Sri Lanka’, DFAT, 23 May 2018, CIS7B839411064, p.29
[57] ‘Human Rights Watch World Report 2019’, Human Rights Watch , 17 January 2019, p.547, 20190118091502
The Tribunal accepts that if the applicant returns to Sri Lanka now or the reasonably foreseeable future there is a real chance that she will face physical cruelty, violence, and severe stigmatisation from members of her family and members of the Muslim community. Harm from non-state agents may amount to persecution if the motivation of the non-state actor is related to a refugee reason, and the State is unable to provide adequate protection against the harm; or the motivation of the non-state actor is not related to a refugee reason, but state protection from the feared harm will be discriminatorily withheld for a refugee reason.[58] For the reasons given above, the Tribunal accepts the essential and significant reason that the applicant is at risk of persecution from family members and members of the Muslim community is because of her membership of a particular social group of Muslim women in interreligious relationships and her religion.
[58] MIMA v Khawar (2002) 210 CLR 1
Based on the country information set out above and noting that laws governing Muslim marriages entrench the notion that women’s decision-making in matters of marriage should be controlled by male family members and – by extension – their community, the Tribunal finds that the applicant cannot access state protection against the harm she fears from her relatives and members of Muslim community. The discriminatory attitudes that prevent Muslim women from accessing protection are not only tolerated by the State but entrenched in personal status laws that discriminate against Muslim women and contribute to a context in which gender-based violence can occur with impunity. Accordingly, the Tribunal is not satisfied that the State is willing to offer protection to Muslim women at risk of gender-based violence or that effective protection measures are accessible to the applicant.
Having regard to the above country information, the Tribunal is not satisfied that effective state protection measures are available to the applicant in Sri Lanka: s.5J(2).
The applicant is a refugee
In summary, the Tribunal accepts that the real chance the applicant will be persecuted by family members or members of the Muslim community opposed to her interreligious relationship relates to all areas of Sri Lanka and that the persecution involves serious harm as required by s.5J(5) and systematic and discriminatory conduct. The Tribunal finds that protection against the persecution the applicant fears cannot be provided by the State because effective protection measures as defined in s.5LA of the Act are not available to her throughout Sri Lanka: s.5J(2). The Tribunal accepts that the persecution she is at risk of suffering for the essential and significant reason of her membership of a particular social group of Muslim women who have entered into interreligious relationships involves serious harm and systematic and discriminatory conduct, as required by s.5J(4).
Section 5J(3) does not prevent the applicant from having a well-founded fear of persecution because there are no steps she could take to modify her behaviour so as to avoid a real chance of persecution in Sri Lanka. In accordance with s.5J(3)(a) of the Act, the Tribunal cannot require the applicant to modify her behaviour by concealing the true nature of her relationship with [Mr A] as to do so would conflict with a characteristic that is fundamental to her identity or conscience. The right to marry and the right to family life are protected by various international human rights instruments[59] and the Tribunal finds that the right to choose who she marries is fundamental to the applicant’s identity and conscience. Therefore, the Tribunal cannot require the applicant to take any steps to conceal or cease her relationship with her fiancée as to avoid a real chance of persecution of Sri Lanka as to do so would conflict with a characteristic that is fundamental to her identity or conscience: s.5J(3)(a).
[59] For e.g., International Covenant on Civil and Political Rights, article 23 and 17(1).
Having made the above findings, it is not necessary to further consider the applicant’s other claims.
For the reasons given above the Tribunal is satisfied that the applicant has a well-founded fear of persecution as defined in s.5J of the Act. Therefore, she meets the meaning of ‘refugee’ set out in s.5H of the Act.

CONCLUSION

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

AND

The Tribunal remits the matter for reconsideration with the direction that the grant of the visa is not prevented by s.91WA.

Frances Simmons
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.

…

5J Meaning of well-founded fear of persecution

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.
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.
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 them 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.
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.
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.
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

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.

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.

36Protection visas – criteria provided for by this Act
…
(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.
…

N°217), 20 December 2011, CIS22203, pp. 25-26; ‘Broken Promises: The Plight of Women in Sri Lanka and its Economic Costs’, Talking Economics, 1 March 2013, CIS27886.

[2019] AATA 4601

4 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies