1917715 (Refugee)

1917715 (Refugee) [2020] AATA 2069 (25 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917715
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Kate Millar
DATE:25 February 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 February 2020 at 1:07pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – religion – Catholic – particular social group – intersex person – perception as homosexual – sex worker – criminal offences – qualifications obtained – ability to obtain work – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 424A, 424(2)
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

[The applicant] came to Australia from Sri Lanka as a student in 2001. In 2008 he was granted a Skilled [visa] as a member of the family unit of his wife, [who] was the primary applicant.
On 31 August 2016 his visa was cancelled after he was convicted of seven counts of sexual penetration without consent. His appeal against his conviction was unsuccessful, as was his application to the Tribunal (differently constituted) regarding the cancellation of his visa.
On 23 May 2019 [the applicant] applied for a protection visa, claiming he feared returning to Sri Lanka because of his religion, his sexual orientation and identity as a person who is intersex and the perception that he is more Australian than Sri Lankan.
A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused his application on 2 July 2019, finding that [the applicant] was not a refugee as defined in the Act, and therefore did not meet s.36(2)(a) of the Migration Act 1958 (the Act) and also that he did not meet the complementary protection criteria in s.36(2)(aa) of the Act.
[The applicant] has applied for a review of this decision.
The Tribunal conducted a hearing by video conference to the detention centre on 26 September 2019, and took oral evidence from [the applicant]. The Tribunal took oral evidence by conference telephone from his [wife]. [The applicant] was represented by a registered migration agent.
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 applicant] must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) to be granted the visa. This requires that he is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[The applicant] does not claim to be a member of the family unit of another person who meets these requirements, and the Tribunal has considered the refugee criterion and the complementary protection grounds.
Refugee criteria
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, the person is outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if:
·     The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (the Convention reasons),
·     There is a real chance that, if returned to the receiving country, the person would be persecuted for one or more of those reasons, and
·     The real chance of persecution relates to all areas of the relevant country.
There are circumstances in which a person will not have a well-founded fear of persecution, which include where effective protection measures are available to the person in the receiving country; and, in certain circumstances, where the person can take reasonable steps to modify his or her behaviour to avoid a real chance of persecution (ss.5J(2)–(3)).
If the person fears persecution for one or more of the Convention reasons, that reason must be the essential or significant reason for the persecution, the persecution must involve serious harm to the person, and the persecution must involve systematic and discriminatory conduct (s.5J(4)).
Instances of serious harm are defined non-exhaustively in s.5J(5). Section 5J(6) specifies that in determining if a person has a well-founded fear, 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.
Section 5L sets out considerations for finding a person is a member of a particular social group other than family, and s.5LA sets out provisions relating to whether effective protection measures are available in a receiving 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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In this case, a DFAT country information assessment for Sri Lanka dated 23 May 2018 was before the Tribunal at the time of the hearing. After the hearing, a new DFAT country information assessment dated 4 November 2019 was released. This was provided to [the applicant] and he was invited to comment on the contents of this report. Further comments were provided through his representative. As noted in these comments, there were no substantial changes in this report that affected [the applicant]. It is further claimed that his mental state is deteriorating due to his detention, and that he is seeing a psychologist while in immigration detention.
Information put under s.424A of the Act
Prior to the hearing, information was put to [the applicant] under s.424A of the Act, and further information was also requested from him under s.424(2) of the Act.
Information put to [the applicant] was that in his application to review the decision not to revoke the cancellation of his visa, he did not raise any non-refoulement issues and this was confirmed at hearing by his barrister.[1] A copy of the decision was provided to [the applicant]. He was advised this was relevant to the review as if he only recently claimed to fear harm on return to Sri Lanka the Tribual would find, subject to his comments, that his claim to fear harm was a recent fabrication.
[1] [Source deleted].
It was explained this was relevant to whether he has a well founded fear of persecution if he returns to Sri Lanka, and therefore to whether he meets the definition of refugee in s.5H of the Act, and therefore meets s.36(2)(a) of the Act. It was explained it is also relevant to whether there are substantial reasons for believing there is a real risk he would suffer significant harm if he returns to Sri Lanka, and the criteria in s.36(2)(aa) of the Act. [The applicant] was advised that if the Tribunal relied on this information it would find, subject to his comments, that he did not meet s.36(2) and this would result in it affirming the decision under review.
[The applicant] was also invited to provide the following information:
·Information to show whether he had a medical examination or chromosome test and the outcome of the examination or test; and
·Information to show whether the sentencing judge took into account his intersex status when in sentencing; and
·Information to show whether he was treated as an intersex person during the period of his imprisonment.
The representative provided a submission in response attaching two witness statements from the criminal trial, an email from [the applicant] regarding his prison experiences, a redacted report from the Sex Offender Medium Intensity Program at [Prison 1], an email regarding a request for a chromosome test from [name] Pathology, and an email from [the applicant] regarding his request for a chromosome test while in immigration detention.
In summary the submission states:
·[The applicant] grew up in shame and isolation from having physiological attributes of a male and female body.
·He struggles to come to terms with his identity because he has never been attracted to males or females and feels he is more female than male.
·As a result he was not able to integrate or adapt to social environments outside his family because of the male and female characteristics he was born with.
·He states he underwent gender correction surgery as an infant with no outward effect on his physical appearance.
·He states he suffered mental anguish during his childhood, teenage and adult years in Sri Lanka.
·He married due to family pressure in Sri Lanka but has a very supportive partner who understands his condition.
·He states his intersex status was not mentioned in his criminal trial because it was not a relevant consideration in determining the charges. He provides two police statements where the victims reportedly mention his female attributes, and he states this shows his feminine characteristics were present eight years ago.
·[The applicant] said he was not willing to disclose his intersex status to his barrister during the cancellation of his visa due to his emotional state at that time. It is stated he was devastated that his personal and professional life were in ruins and was traumatised as a result of sexual, physical and psychological abuse suffered in prison. He did not envisage he would have to publically declare his intersex status and he and his family migrated to Australia to escape the non-acceptance of his intersexuality in Sri Lanka.
·It is reported he expressed to prison officers that he was afraid his physical appearance may attract unwanted attention. He states he was sexually assaulted in the communal showers. The submission states the assault was reported and he was moved to a separate unit. Charges were not laid against the perpetrator for fear of retribution. It is reported he is still suffering psychologically as a result of this attack.
·It is submitted that on being moved to [Prison 2] he was physically bullied, harassed and assaulted by other prisoner due to his physical appearance and female characteristics.
·He was then transferred to [Prison 1] and felt safe in that facility. Given what had happened in the previous facilities he remained silent about his intersex status and tried hard to conceal his feminine characteristics. He says he was placed within a safe accommodation area, but this was not designated as a protection unit.
·He disclosed some of his personal history as part of the sex offenders program and claims that the report from this program alludes to his intersex status.
·He is willing to undergo a medical examination chromosome test as evidence of his intersex status if he can obtain the permission and cooperation of the Department of Home Affairs.
·It is stated that he has tried to access genetic testing and a medical examination while he has been in immigration detention but so far his requests have been refused.
·Various submissions have been made about the willingness of laboratories to undertake genetic testing and it is stated he requires permission from the Department of Home Affairs to allow these tests to be conducted.
The Tribunal requested information on any chromosome testing and the outcome of chromosome testing as it was stated [the applicant]’s submission to the Department that he had taken steps to obtain intersex chromosome testing. He states he underwent surgery as a minor to keep him male. The Tribunal did not request or require [the applicant] to submit to testing or a medical examination. It does not consider requiring a medical examination would be appropriate, as if [the applicant] felt coerced to provide such a test this could bring into question Australia’s international obligations. As a result, the Tribunal extended an invitation to [the applicant] to provide evidence in support of his claims, as he had previously stated he had undertaken or sought to undertake a genetic test to show his intersex status. [The applicant] was unable to produce these results. The Tribunal accepts that he is unable to access tests while he is in immigration detention.
At the hearing, [the applicant] was given a further opportunity to comment on the failure to raise any non-refoulement on the cancellation of his visa. [The applicant] said his family asked him to keep his intersex status a secret. It was put to him that it was a serious matter having a visa cancelled, and in these circumstances it was difficult to understand why he would not raise a reason not to cancel his visa when represented by Senior Counsel. In response, [the applicant] said his family were scared it would be raised in the media, and he was forced by his family not to disclose his intersex status. He said there was no other reason he did not disclose this information at the time his visa was cancelled.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The applicant] claims to fear harm due to his religion and as a member of a particular social group because of his gender and sexuality. He also states he fears harm as he will be perceived to be transgender and a sex worker. He also claims to fear harm as a person who has been convicted of criminal offences in Australia, and due to a perception that he is Australian. The Tribunal has considered each of these claims against the refugee criteria and the complementary protection criteria.
[The applicant]’s background
[The applicant] was born in [Sri] Lanka on [date]. He attended local Catholic primary and high schools, completing his high school education in [year].
He studied and completed a Bachelor [degree] from [year] until [year] in Colombo.
In the period January 1989 to [December] 1994 he [also worked] for the family [business] “[name]” in Colombo. From December 1994 he was a manager of a [certain] business in Colombo. [The applicant] described this job as [details deleted].
He married [his wife] in 1995. They have been married for 24 years and have one child who was born in Colombo on [date].
He trained, and worked part-time, as [an Occupation 1] in the period 1996 – 2001. From 1998 until 2001 he also studied and completed [another course] in Colombo.
[In] February 2001 he came to Australia on a student visa and remained until [June] 2003 when he returned to Sri Lanka in 2003 as his father was unwell. In that period he studied, but did not complete, a Bachelor [degree].
He remained in Sri Lanka from [June] 2003 until [April] 2008. From 2004 to 2005 he completed a Bachelor [degree] by transferring to [deleted] in Colombo. He worked as [an Occupation 1] in a [business] between 2003 and 2006, commencing his own business [in] January 2006, which he continued until [June] 2008 when he returned to Australia.
It was put to [the applicant] that the delegate had found his return to Sri Lanka for five years undermined his claim to fear harm in Sri Lanka, and he was invited to comment. [The applicant] said he went back with his wife and his wife was always with him when he was at work and when he was at lectures for his course his wife also went with him. He said if a transgender person was outside without someone else others would think he was a sex worker and he could be taken advantage of by someone sexually assaulting him. On being asked how being with his wife or mother would protect him, he said nothing will happen because he had a second person with him.
On returning to Australia he studied a [course] between 2008 and 2010, and worked in the business he owned with his wife as [an Occupation 1] between 1 January 2009 and 9 February 2014. He was imprisoned [in] April 2014 and was in prison and then in immigration detention from this date. While in prison he worked in [Prison 1] and taught [a subject]. He completed a [a course].
Family
[The applicant]’s parents live in Negombo in a house they previously owned, but have now sold to his father’s [relative]. [The applicant] could not give the name of the person who owns the house. When [the applicant] returned to Sri Lanka between 2003 and 2008, he lived in this house.
[The applicant] said the Tribunal could check his phone and see that he does not have contact with his parents. It was put to him that in his visa application he said he has regular contact with his parents. He said this was only when they come to visit. He said when they come here he talks to them a lot, but otherwise he asks his brother how they are going. I do not accept his evidence, as it was inconsistent with his visa application and while he sought to explain he differences, this was not convincing. I find that he remains in contact with his parents.
His brother is an Australian citizen. His wife and son are Australian permanent residents. He has an uncle who lives in [City 1], and a niece who is an Australian citizen.
[The applicant] said his other aunts and uncles have passed away because all of his relatives are very old. He later said that the family business [was] run by another [uncle]. He said this business is no longer operating, and he was a hundred per cent sure of that. He then said he didn’t know because he doesn’t have connections with his uncles because he is intersex and his uncles don’t like him. He said the last time he spoke to his uncles was at his wedding in 1995. On being asked how he knew that his uncle was in [City 1] he said his brother told him. He said there was a falling out between his father and his uncles regarding the business, and his father left the business in 1992.
[The applicant] described his father and his brother as like two snakes. He said there was a dispute about the business and the money and there was a division of the money and they no longer talk to each other. Other family members are wealthy, but his family is not wealthy.
[The applicant]’s claims
Religion

[The applicant] said he was born into a devout Catholic Christian family and was educated at [Catholic] Schools. His family belonged to the [Church 1] in Negombo. [Details deleted]. He says his parents continued to attend the church up until the attack on the church, but no longer attend as they fear being targeted and killed by Islamic extremists.
[The applicant] said he fears harm if he returns to Sri Lanka because he is Christian. The Church in Negombo that was attacked is the church [which he attended]. [The applicant] acknowledged many people are Christian in Sri Lanka, and particularly in Negombo, but there are a lot of Muslim people and that is a problem due to racialisation. In the statement accompanying his claims he also claims to fear harm from Sinhalese Buddhist authorities and the Bodu Bala Sena (BBS). [The applicant] said he had not had any problems with people who are Muslim when he was living in Sri Lanka, but that these groups were not radicalised at the time he was in Sri Lanka.
The church [the applicant] and his family attended in Negombo was largely destroyed in an attack by a suicide bomber [in] 2019, and it is reported at least 150 people were killed at the church.[2] In other attacks on the same day three luxury hotels, and two other churches were also attacked and more than 250 people were killed.[3]
[2] [source deleted]
[3] [source deleted]
According to the DFAT report, the Sri Lankan government attributed the attacks to Muslim extremist groups National Thowheeth Jama’ath (NTJ) and Jamaat-al Mullathu Ibrahim (JMI). Neither group is said to have previously had a high profile. DFAT reports that according to local investigators these groups drew inspiration from but had no direct links to ISIL.[4]
[4] Ibid at [2.58]
In response to the attacks a three-member committee chaired by a retired Supreme Court Judge was appointed to investigate the cause and background to the attacks. President Sirisena and Prime Minister Wickremesinghe made public calls for unity and restraint. Muslims are reported by DFAT to have been the subject of reprisals and widespread discrimination since the attacks.[5] The Sri Lankan Government says it has killed or apprehended all those directly involved in the attacks and diminished the capacity of NTJ and JMI to carry out further attacks, and these groups have been banned by the Government.[6] There were no reported attacks on Christians by radical Muslims before the 2019 attacks. [7] Anti-Muslim sentiment in Sri Lanka increased following the attacks, with reports of Muslims being discriminated against.[8]
[5] Ibid at [2.59]
[6] Ibid at [2.60]
[7] Ibid at [3.46]
[8] Ibid at [3.31]
DFAT assesses that Christians face a low threat of violence from home grown extremist Islamic Groups, but states this may change if these groups were to expand their membership and strengthen international links.[9] The Tribunal could not locate information to show that this will occur in the foreseeable future.
[9] Ibid at [3.46]
DFAT reports that there are documented incidents of violence and discrimination against Christians, with Buddhists the main perpetrators of the violence.[10] DFAT assessed Roman Catholics and other mainstream Christian religions as facing a low risk of societal discrimination. It is stated the focus of the BBS is the Muslim community. DFAT assesses that Christians in Sri Lanka face a low risk of official discrimination. The risk increases to moderate for evangelical Christians in the Northern Central, South and Western Provinces.
[10] Ibid at [3.42]
[The applicant] provided news reports and analysis reports of the bombings,[11] and articles on Christianity in Sri Lanka.[12] The Tribunal accepts the reporting of the attack on the [Church] and the attacks of [2019] in Sri Lanka. It accepts that one of the targets was [Church] in Negombo, which [the applicant] and his parents attended, and that he and his family knew people who were killed in this attack.
[11] ‘[source deleted]
[12] ‘Who are Sri Lanka’s Christians?’ The Conversation, 22 April 2019; ‘Sri Lanka: over 20 attacks on Christians this year’, World Watch Monitor, 13 June 2017
The ABC news articles provided by [the applicant] at or around the time of the attacks report that local Christian groups said they faced increasing intimidation from some extremist Buddhist monks in recent years, and report clashes between Buddhist monks and Muslim groups, and also provided history on the civil war. The report in The Atlantic states that since the civil war ended the leaders of the dominant Sinhalese Buddhist population have frequently targeted religious minorities including Christians and especially Muslims.It is suggested churches were targeted as symbols of the West, as Sri Lankan Christians are associated with colonial power. It reports that the civil war was primarily driven by ethnic tension and Christians were not necessarily implicated on one side or the other, and that this makes Christians unlikely targets. It highlighted that Christians, especially in the Catholic Church, have attempted to avoid conflict with the Buddhist majority, but are marginalised by the Sinhalese Buddhist majority.
These reports are at or shortly after the attacks on the Church, when it was unclear which group or groups had perpetrated the attacks. Since the time of these reports, it has emerged that Muslim groups claimed responsibility. The Government claims that those responsible have been apprehended or killed and the groups responsible banned and proscribed as terrorist organisations.
It was put to [the applicant] that following the attacks on the church in Negombo, the Government has taken action in response to those attacks. In response, [the applicant] said that the media in Sri Lanka is controlled by the Government, unlike the media in Australia, and the Government wanted to show through the media there was no threat in Sri Lanka, but they still have troubles there. [The applicant] said the intersex problem was the main problem for him.
The Tribunal accepts that [the applicant] is Roman Catholic, and that he and his family attended the church that was attacked in 2019, and knew the victims of this attack. It further accepts he has a fear that this may happen again and that the fear is of serious harm as there were many killed and injured in the attack.
On the information before it, the Tribunal finds that The Government has taken action against the perpetrators and the organisations involved. The groups involved did not have a history of violence prior to the attacks and are now banned by the Government.
While there are reports of attacks against Christians by extremist Buddhists, these are targeted at evangelical Christians. [The applicant]’s home area is a Christian area close to the capital and does not fit the profile of an evangelical Christian in a rural area. The Tribunal therefore finds the chance of any official discrimination is remote. The Tribunal also finds that the chance of any violence towards [the applicant] because he is Christian by the BBS or Buddhist extremists is remote.
As a result the Tribunal considers there is only a remote chance [the applicant] would face serious harm as a result of being a Christian, including being caught up in a terrorist incident or sectarian violence. It follows the Tribunal finds [the applicant] does not meet s.5J(b) of the definition of refugee on the basis of his religion.
Intersex status
A person who is intersex is a member of a particular social group as defined by s.5L of the Act. The Tribunal has first considered [the applicant]’s claims in regard to being intersex separately to his claims to be or perceived to be transgender and/or homosexual before considering these claims cumulatively together with the other claims he has made.
[The applicant] says he was born intersex, with chromosomal characteristics of both sexes. In his statement he says he was born with female sexual anatomy, which his father had surgically removed when he was an infant,[13] however this did not stop other female attributes developing as he got older.
[13] Statement dated 16 September 2019
[The applicant] said people easily recognise him as intersex in Australia by the way he thinks, the way he walks, his body movement and voice.
In support of this contention, [the applicant] provided two victim statements in regard to the offences of which he was convicted, one of which includes the statement “[deleted]” and another in which it is declared “[deleted]…”
I am not persuaded that a single sentence in two statements from a total of six victims establishes that [the applicant] would be perceived as intersex by the community in Sri Lanka. It does not state the victims perceived him to be intersex.
[The applicant] says he was bullied and harassed at school and called a girl. He does not claim that this was because of his intersex status, but rather because of his feminine appearance. He said people who are intersex have a bad future and are alienated, and others do not want to face intersex people.
He said while he has never mentioned his intersex status prior to making claims for protection, this was a big part of why he and his family migrated to Australia.[14] The Tribunal finds this difficult to reconcile with [the applicant] returning to Sri Lanka for a period of five years between 2003 and 2008, interrupting his studies in Australia. It also finds it difficult to reconcile with a failure to raise this in the hearing about the cancellation of his visa, despite being represented by Senior Counsel.
[14] Statement dated 16 September 2019 at [7]
While he states he returned as his father was unwell, living in Sri Lanka for a period of five years, completing his study in Sri Lanka, working as an employee and then starting his own business is not consistent with a real chance of serious harm. If t[the applicant] was subject to a real chance of serious harm the Tribunal does not see why he would return for such a lengthy period, including completing his study, being employed and starting his own business.
[The applicant] states he fears persecution from the Sinhalese Buddhist majority and domestic Muslim extremist groups such as Islamic state which he says are now active in Sri Lanka. He states Sinhalese Buddhists discriminate against the LGBTI community when it comes to obtaining employment, housing and other basic services. He says the authorities turn a blind eye, and police in Sri Lanka abuse their powers to target the LGBTI community and often arrest and detain members of the transgender community and subject them to sexual abuse.
There is support for this contention, with the Human Rights Watch report All five fingers are not the same recording a 41 year old intersex person in Colombo as stating that when she attended a police station over a land dispute in 2015 she was insulted by an officer over her gender non-conformity.[15]
[15] ‘All Five Fingers Are Not the Same’, Human Rights Watch (2016), p.11
[The applicant] said people have not accepted him his whole life. His mother looked after him until 1995 when he married and then his wife looked after him. He said that he always went out with either his mother or his wife to avoid problems. He said others think people who are intersex are sex workers and part of the LGBTI community in Sri Lanka. He said people throw stones and shout at him and that if the police catch him and know he is intersex they will sexually abuse him. He does not claim, and there is no other evidence, that he has had stones thrown at him or has been arrested or detained by police.
In his statement, [the applicant] states he lived an isolated life in Sri Lanka trying to hide himself from the community to avoid being targeted.[16]
[16] Statement dated 16 September 2019 at [8]
[The applicant]’s claims to fear harm are difficult to reconcile with his education and employment history in Sri Lanka. He has successfully studied in Sri Lanka and has achieved [various qualifications]. He has worked for others as well as establishing and owning a business as [an Occupation 1]. While undertaking his work [for] a family [business], he had contact with officials with no record of problems.
Despite living in Sri Lanka for extended periods of time as an intersex person since birth, he has not been arrested or been without either employment or being in education in the period he was in Sri Lanka, other than one period of two weeks between ceasing employment as [an Occupation 1] and commencing his own business. [The applicant] said he has never been arrested in Sri Lanka and had not had any problems with authorities in Sri Lanka.
[The applicant] attributes this to being constantly accompanied by either his mother or his wife. On being asked why he thought he would have problems now if he returned to Sri Lanka, he said his mother and his wife protected him by going everywhere with him. He said his mother attended his university classes with him. His mother is now [age] years old and unwell so is unable to protect him. He said his wife, son and brother will remain in Australia if he leaves and will not be able to protect him. He stated in his statutory declaration that having his wife constantly by his side in Sri Lanka helped to deter the constant abuse and harassment he suffered in Sri Lanka.[17]
[17] Ibid at [10]
The Tribunal does not accept he was constantly accompanied, including at work and to lectures at the University by his wife or his mother. His denial that there were any exceptions to being constantly accompanied was unrealistic and the lack of acknowledgment of any exceptions makes it difficult to accept this was the case.
[The applicant] told the delegate he continued to dress as a male when he came to Australia because he had become used to it. His wife confirmed he appears as a male in public in both Sri Lanka and Australia.
It was put to [the applicant] that it was not immediately apparent to the Tribunal how his face or voice identifies him as intersex, and he said that his gestures and the way he walks show he is transgender, and this was the case even at school where he was bullied.
[The applicant] said he liked to dress as a female and used his mother’s clothes and lipstick as a small child.
In Australia he has always dressed as a male. In his Australian driver’s licence photo he has a male appearance, and his appellation is “Mr” on his Australian documents. He said he identifies and dresses as a male in Australia because his family want him to be a man. He said in Australia he was freer and he continued his normal way, which was to dress and appear as a man. This is inconsistent with the claim in his statement that he would have to pretend to be a man and this would be almost impossible for him.
[The applicant]’s Sri Lankan national identity card identifies him as male as does his Sri Lankan birth certificate.
[His wife] gave evidence that [the applicant] generally tries to walk and talk like a man. She said she always goes out with him in Sri Lanka and while he always appears as a man, people would “know he is different” by the way he walks and talks. She said if he returns to Sri Lanka she will stay in Australia.
[The applicant] said he did not raise his intersex status during the criminal trial as it was not relevant to the charges against him. It was also not raised during sentencing.
[The applicant] said he did not disclose his intersex status in prison or to the sex offender rehabilitation program because of the presence of other prisoners. He also submitted that he told prison officers he was afraid his physical appearance may attract unwanted attention. He says he was physically bullied, harassed and assaulted by other prisoners. [The applicant] said he was sexually assaulted in prison and as a result is traumatised. No charges resulted from this assault as he was scared that people, presumably the offenders, knew where his family lived.
The sexual offending program report from [Prison 1] does not disclose any reports of bullying or harassment or [the applicant] reporting concern about his physical appearance. It states he admitted to being an anxious person, that he was extremely distressed when he arrived at education and was referred to the chaplain for counselling. The level of distress reported is consistent with both [the applicant]’s presentation and reports that he is an anxious person, and also his allegation of being sexually assaulted in [Prison 2].
The report from the sexual offending program in [Prison 1] is redacted in those parts of the report that discuss his family history and perception of his sexuality, as well as the reports of [the applicant]’s view of his offending behaviour. The Tribunal regards the paragraphs where there are redactions with caution, as information that is not redacted may appear differently if the entire context was provided.
The redacted sections include that [the applicant] lived in a female dominated household, and had limited socialisation with males. He is reported as stating he felt more female than male. It is stated it is not clear if [the applicant] believed or wished to be a woman or just felt he had more feminine qualities than masculine. It records that he reported he was bullied as a child because his peers believed him effeminate and would call him a girl. He reported having little sexual desire, and was not attracted to females or males. The report states [the applicant] presented as someone confused about his sexual identity and sexual orientation and it appeared he used this as a justification for his offending behaviour.
He is in a male immigration detention facility.
[The applicant] said “that people identify me as a woman because of my female appearance and characteristics.”[18] This is not the case in his driver’s licence or other identity documents. He has consistently presented himself as male and been treated as a male in both Sri Lanka and Australia. The Tribunal does not accept that others identify him as a woman.
[18] Statement dated 16 September 2019
In a post-hearing statement he says while in prison and in immigration detention he has gone to “extreme lengths” to hide feminine characteristics and has to work hard at looking masculine. The Tribunal does not accept this is the case as he has consistently presented as a male during his lifetime and while living in both Sri Lanka and Australia. This shows his preference in presenting his gender is to present as a male.
[The applicant] said he had [deleted] in three separate surgeries at the [Hospital]. He was asked if the medical history taken for these surgeries recorded his intersex status, [the applicant] said he used a male gender at this time because his family was against disclosing that he was intersex. [The applicant] said his intersex status would be apparent on a medical examination. He was asked if the discharge summaries would show his intersex status, and he was asked to obtain the discharge summaries. These did not record any history to show he is intersex. His representative submitted that the discharge summaries were not conclusive. What can be concluded was that this was not recorded as part of his medical history, despite stating he had surgery to assign him a gender as an infant. While the absence of this record does not of itself establish he is or is not intersex, it does not support his claim to be intersex where it may have been expected to do so in the circumstances. It also does not support that his intersex condition is readily apparent to others.
While there is very little evidence that [the applicant] is intersex as he claims, the Tribunal accepts in his favour that he is intersex as it is acknowledged he is in immigration detention and may not have been able to access the tests he sought in support of his intersex status that would have been available to him in the community.

The Tribunal finds that if he returns to Sri Lanka, [the applicant] will continue to adopt a male appearance, as this is the appearance he has consistently adopted in Sri Lanka and Australia and is the appearance with which he says he is most accustomed. The Tribunal does not accept he has female biological characteristics that are readily apparent to others, and as a result does not accept his intersex status is apparent to others.
Given he has successfully lived, studied, work and operated a business in Sri Lanka when his intersex status was present from birth, I also do not accept he would be persecuted by Sinhalese Buddhists or Muslim extremists. I also do not accept he would face discrimination on this basis.
[The applicant] said he does not have anywhere to live in Sri Lanka, and would be discriminated against in seeking accommodation due to his intersex status. The Tribunal does not accept that his intersex status would be apparent to others if he were to seek accommodation, and does not accept he would be unable to find accommodation on this basis.
On being asked if he could live with his parents, he said they are not in a position to provide for him as at the moment his brother is sending money to them, and they do not have income. His parents have a house in which they live and [the applicant] said he lived with them in the five years he returned to Sri Lanka between 2003 and 2008. In this context, the Tribunal finds he could live with his parents on returning to Sri Lanka despite the house now being rented rather than owned by his parents. In submissions provided after the hearing, [the applicant] says his father would not allow him to live at home. He did not raise this at hearing when asked this question, and did not raise the effect of his criminal convictions. His evidence about his contact with his parents was inconsistent with the information on this application form, and the Tribunal does not accept he is estranged from his parents and that his father would not allow him to live in the household.
[The applicant] has a number of qualifications, including more recently a [specified] qualification. He said he could not obtain work in Sri Lanka because of his criminal history. [The applicant] said he would not work again as [an Occupation 1].
[The applicant] has previously worked for a family business, and has worked for others and also established his own business. Given [the applicant]’s qualifications and experience he is likely to be able to obtain employment, as he has done in the past in Sri Lanka. I do not consider there is a real chance he would not be able to earn a livelihood of any kind or that this would threaten his capacity to subsist.
[The applicant] says he has medical conditions, including a [health] condition. He claims he will suffer harsh discrimination when trying to obtain health care. Human Rights Watch reports that transgender people face discrimination in accessing health care including being labelled mentally ill, extra inquisitiveness and lack of privacy from medical staff.[19] On the basis of his medical records in Australia and his previous ability to access sexual assignment surgery in Sri Lanka, while the Tribunal assesses some low level discrimination may occur if he is perceived to be transgender or homosexual, it is unlikely he would face harsh discrimination as he claims or be unable to access health services.
[19] ‘All Five Fingers Are Not the Same’, Human Rights Watch (2016), p.39
The Tribunal finds [the applicant] does not have a well-founded fear of serious harm as a result of being intersex because:
·     He has always maintained a male identity and appearance both in Sri Lanka and Australia, and will continue to do so in the future.
·     This matches his identity cards and birth certificate.
·     He is married and has a biological child with his wife which is consistent with a male gender.
·     His intersex status is not apparent to others.
·     He has been able to study, live and work in Sri Lanka without having experienced serious harm despite being intersex from birth.
·     He returned to Sri Lanka for a period of five years without suffering harm despite his intersex status being present since birth.

100. In light of these factors, and the way in which he has lived in Australia as a male, the Tribunal finds there is no reason [the applicant]’s intersex status would become known or that he would suffer persecution as a result of his intersex status. It rejects the claims that he is likely to be arrested or incarcerated due to his intersex status and face inhuman and degrading treatment as a result.
101. It follows it finds [the applicant] does not meet s.5J(1)(b) of the Act on the basis of his intersex status.
Perception that [the applicant] is homosexual, transgender and/or a sex worker
102. [The applicant] claims that he will be perceived to be transgender and will also be perceived to be a sex worker. As a result, he says he will be targeted and sexually assaulted by police. He cites offences such as the offence of ‘cheating by personation’ in s.399 of the Penal Code which has been used by police to target and arrest people who are intersex and transgender people.
103. In providing statements from victims of his offending stating that they thought he was gay, he has also impliedly claimed he will be persecuted because he will be perceived to be homosexual. The Tribunal has considered each of these claims.
104. DFAT country information assessment states same-sex intercourse is unlawful in Sri Lanka. It is reported the LGBTI community say police use the Penal Code or the Vagrants Ordinance to threaten, harass, extort money and sexual favours and arbitrarily detain LGBTI people.[20] It states transgender individuals are more likely to face obstacles gaining access to services that require identity documents, and that employers are reluctant to hire people who are transgender.[21]
[20] DFAT Country Information Report Sri Lanka, 4 November 2019 at [3.148]
[21] Ibid at [3.150]
105. However the DFAT report also states middle and upper class, educated and urban Sri Lankan people are open about their sexuality within their family and social circles. Colombo, Kandy and Galle are considered more tolerant of sexual orientation, and it is stated some LGBTI individuals have chosen to relocate to these areas.[22]
[22] Ibid at [3.151]
106. DFAT reports anti-LGBTI sentiment is deeply ingrained in Sri Lankan culture and society, particularly in rural areas. It is stated the majority of Sri Lankans hold conservative views about sexual orientation and gender identity and may prioritise collective values over individual rights.[23]
[23] Ibid at [3.156]
107. DFAT also reports transgender individuals are more likely to experience discrimination, with employers reluctant to hire transgender individuals, and face obstacles gaining access to basic services that require identity documents.[24] It assesses transgender people as being at a high risk of official and societal discrimination.[25]
[24] Ibid at [3.150]
[25] Ibid at [3.156]
108. The DFAT report states Sri Lanka does not have legislation to protect LGBTI individuals from discrimination or hate crimes, and that LGBTI people are seen as sexual deviants and routinely experience discrimination and bullying in the workplace and the education and health care systems.[26] Employers are reported to be reluctant to hire transgender individuals.[27]
[26] Ibid, p.50 at [3.149]
[27] Ibid, p.50 at [3.150]
109. The UK Home Office reports that while consensual same-sex activity is criminalised in Sri Lanka, cases are rarely prosecuted.[28] However, there are reports of police using other laws to criminalise and harass LGBTI persons, particularly transgender women, and men who have sex with men involved in sex work.[29] The UK Home Office also reports that the Upper Tribunal found that internal relocation to Colombo would normally be sufficient to enable an individual to avoid a risk of serious harm/ persecution,[30] and in 2015 the Upper Tribunal found that in general the treatment of gay men does not amount to persecution or serious harm.[31] As submitted by [the applicant], this report also states there are reports of police misinterpreting the law on the basis of a person’s appearance or behaviour and of police assaulting, harassing and extorting money or sexual favours for LGBTI persons, particularly in Colombo.[32] The report states a person detained by the police may be asked for sexual favours. This section of the report goes on to state that people who are LGBTI who are detained without cause may spend less time in custody and therefore have less exposure to police officials and less abuse than those arrested for other crimes. Other reports state that public spaces are heavily policed for “decency” and LGBTI people face arrest or extortion if they are caught.[33]
[28] United Kingdom Home Office Country Policy and Information Note Sri Lanka: Sexual Orientation and gender identity and expression, October 2018, p.7
[29] Ibid
[30] Ibid, p.10
[31] Ibid p.8 at [2.4.8]
[32] Ibid pp. 9, 10
[33] Ibid, pp.18,19
110. [The applicant]’s submissions also address a report from Equal Ground and the Centre for International Human Rights dated May 2017. The Tribunal could not locate a full copy of this report. It is reported by the UK Home Office as stating that while there are no recorded convictions under legislation which makes same sex acts unlawful, the laws have the effect of perpetuating discrimination, harassment, violence and unequal treatment of people who are LGBTI.
111. [The applicant]’s reports of being bullied at school support because he had a feminine face, and because the way he walks and talks is perceived as feminine that supports that he may be perceived to have feminine qualities. He has two victim impact statements with a comment that those victims thought he was feminine or homosexual.
112. [The applicant]’s identity documents are consistent with the way in which he chooses to appear in public, and which he says he is accustomed to appearing, which is as a male. He states he is identified as a female by the way he walks and talks and by his mannerisms.
113. [The applicant] said at hearing that he was sexually assaulted in prison, however this does not in itself shows he would be perceived to be transgender or homosexual or a sex worker in Sri Lanka.
114. [The applicant] was not been arrested in the time he has spent in Sri Lanka, including in the five year period he returned to Sri Lanka. He lived in an area considered by DFAT and the United Kingdom Home Office as more tolerant of people who are gay or transgender. He prefers to adopt a male appearance, and this matches his identity documents.
115. The Tribunal does not accept he was accompanied at all times by his mother or his wife to protect him. As such, and given his male appearance and identity documents, his stated lack of sexual drive for either sex and as he is not a sex worker, and as he is unlikely to act in a way to attract the attention of police in public spaces, there is only a remote chance in the foreseeable future he would be arrested or targeted by police.
116. The Tribunal finds as [the applicant] does not have a readily apparent intersex status or readily apparent female biological characteristics, and his appearance and dress as a male matches his identity documents it finds there is only a remote chance he would be perceived to be transgender. It therefore finds there is no real chance he would be persecuted because he is perceived to be transgender. It finds that [the applicant] will continue to appear and dress as a male in the foreseeable future as this is his practice both in Sri Lanka and in Australia, where he was free to adopt a female appearance if he wished to do so.
117. As the Tribunal does not accept that he will be perceived to be transgender, the Tribunal does not accept the next step in his chain of reasoning, that because he is perceived to be transgender he will be perceived to be a sex worker. I also do not accept that there is a real chance he would be arrested or sexually assaulted because he is perceived to be transgender or a sex worker, or would be sexually assaulted by police officers.
118. [The applicant] also impliedly claims he will be perceived to be homosexual because of the way he walks and talks is perceived as feminine. His wife [also] said he walks and talks in a feminine way. The Tribunal accepts that these traits may lead to other people in Sri Lanka perceiving him to be homosexual.
119. [The applicant] has not been arrested or detained when previously living in Sri Lanka. He has been able to study, work and own a business without suffering serious harm. The Tribunal does not consider, given the most recent report from DFAT which does not note any change to the way in which this group is treated, that the circumstances have changed significantly since [the applicant] was last in Sri Lanka.
120. In [The applicant]’s case, what has changed is that he says his mother and his wife will no longer constantly accompany him to protect him from harm. The Tribunal does not accept that he was always accompanied by his mother or wife and that this prevented him being targeted by others in the community. Therefore the Tribunal also does not accept that if he were not accompanied by his mother or his wife that there would be a real chance he would suffer serious harm in the foreseeable future due to a perception that he is homosexual.
121. As a result, he does not meet s.5J(1)(b) that there is a real chance that if he is returned to Sri Lanka he would be persecuted on the basis of the membership of a social group of people perceived to be transgender, or homosexual or a sex worker.
Perceived to be Australian
122. [The applicant] did not raise this at hearing, but mentioned in his written submissions that he fears harm because he would be perceived more as Australian than Sri Lankan.
123. The Tribunal could not locate country information that supports a claim that [the applicant] would suffer a real chance of serious harm if he were perceived to be Australian.
124. He said people will think he is Australian as his other family members are Australian. His wife, son and brother are in Australia. He said others would not take into account his parents, who are Sri Lankan and resident in Sri Lanka, as they are old. [The applicant] said it would be hard for him to stay in Sri Lanka because others would think he was Australian, and people would ask for money from him.
125. [The applicant] has spent considerable time in Sri Lanka after first coming to Australia as he went back for five years. He returned to Australia in 2008, and has now been here for 10 years. [The applicant]’s parents are Sri Lankan, as is his wife.
126. As [The applicant]’s background is Sri Lankan, his parents have remained in Sri Lanka, and his wife is Sri Lankan, the Tribunal does not accept he would be perceived to be Australian or Western. The Tribunal further does not accept that even if he were perceived to be Australian there would be a real chance of serious harm as a result.
Criminal history
127. [The applicant] did not raise at hearing his criminal history, but was asked at the hearing what the effect of a criminal record would be on his return to Sri Lanka as it was raised in his submissions. It was submitted he is a member of a particular social group being a returned convicted sex offender.
128. [The applicant] said if he returns to Sri Lanka with a criminal record his name would be “under the police” and they could arrest him at any time. Because he is transgender he will be arrested and prosecuted and the police will sexually assault him because they will think he is a sex worker.
129. On being asked what makes him think his name will be “under” police, he said on being deported he will be asked questions and he will have to give all the details. He will be on the Sri Lankan system, and as a result will be arrested on his return and when he is identified as transgender he will be sexually assaulted.
130. On being asked how information to show his offending would come to the attention of Sri Lankan authorities, or make him a person of interest to authorities, [the applicant] said that when he is deported all the documents will go with him, and he will be taken into custody because of the deportation. He said when he returns they will check his name on the internet and there are reports of his offending on the internet.
131. In submissions provided after the hearing, it was conceded there is no documented country information regarding people returning to Sri Lanka as a convicted sex offender from overseas that could be located. The submissions then reiterate the submission about his sexual orientation based on his physical appearance.
132. [The applicant] said he does not have a current passport. He did not know if he would have any problems getting a passport. He did not provide any evidence about checks required to have a Sri Lankan passport issued to him, and the Tribunal does not have, and could not locate, any information to show his Australian criminal history would be checked as part of this process.
133. There is no information before the Tribunal to show Sri Lankans re-entering Sri Lanka are routinely checked for their criminal history, or that people returning with a criminal history are arrested or detained. The 2018 DFAT report states that the principle of double jeopardy is upheld in Sri Lankan law.[34]
[34] DFAT Country Information Report Sri Lanka, 23 May 2018, p. 39
134. [The applicant]’s offences were reported in Australian local media. There is no information provided to the Tribunal that Sri Lankan authorities monitor the Australian media, or if they do, any effect this would have on [the applicant] on his return to Sri Lanka. While there is a possibility that [the applicant]’s criminal history would come to the attention of authorities in Sri Lanka, the is no information that could be located by the Tribunal that this would mean he would be detained or arrested on re-entering Sri Lanka. Reports of Sri Lankan nationals re-entering Sri Lanka and being detained relate to those who have committed offences against Sri Lankan law by leaving the country unlawfully, or who have outstanding criminal charges.
135. He said to work in any job he would need a criminal clearance and that in Sri Lanka all jobs require a police clearance. He has not committed any offences in Sri Lanka. He claims that he will be discriminated against when he tries to seek employment due to his intersex characteristics.
136. It was put to [the applicant] this is difficult to accept given there would be a wide range of [jobs], including for small businesses, and it was unlikely all business would require an Australian police check to gain employment. [The applicant] said as he looks intersex he would be told they would not give him a job, but then he would also be asked for a police clearance. The Tribunal does not consider that it is plausible that all businesses in Sri Lanka require an Australian police check before employing a person, and does not accept there is any real chance this will occur.
137. As a result, the Tribunal finds there is no real chance of serious harm to [the applicant] on his return as a result of his criminal history. As [The applicant] left Sri Lanka lawfully, he will not be subject to arrest for a potential breach of Sri Lanka’s immigration law.
Access to medical treatment
138. [The applicant] said he has problems with his [health] and is on ongoing medication for [problems]. He said he gets back pain which he considers period pain for which he gets pain medication or physiotherapy. He did not provide a medical report about his [health] problems, or submit any treatment would not be available to him in Sri Lanka. [The applicant] also said he was sexually assaulted in prison. Given his level of distress while describing this event, and despite it not being raised before the hearing, I accept his experiences in prison have caused him distress. He claims to be seeing a psychologist while he is in immigration detention and that his mental state is worsening. [The applicant] did not provide any medical or other assessment of his mental health. He said if he returns to Sri Lanka he will still have problems in his head because of the assault. On being asked if he could access treatment in Sri Lanka if he required treatment, [the applicant] said treatment was not available, but then conceded he did not know if treatment was available.

139. The UK Home Office report refers to forced treatment of LGBTI people and barriers to health care for lesbian and bisexual women seeking reproductive health and delays in health care. Transgender people reported lack of concern for confidentiality in State run healthcare services. There is a report of a transgender man having his genitals examined when under sedation for surgery related to his genitals.[35]
[35] UK Home Office at [8.2.1] and [8.2.2]
140. DFAT report that there is a government hospital near Colombo that is transgender friendly and conducted the first sex reassignment surgery in 2017.[36] DFAT also report the Equal Ground offers a telephone counselling service and mental health counselling.[37]
[36] DFAT Country Information Report Sri Lanka, 23 May 2018, at [3.150] (identical to the 23 May 2018 report at [3.102])
[37] Ibid at [3.155]
141. The Tribunal does not consider there is a real chance [the applicant] would be denied treatment or subjected to adverse treatment in health services in the foreseeable future so that he would not receive the treatment he requires for his [health condition] or his mental health.
Unable to support himself
142. In addition to his claims that he would be unable to gain employment due to his criminal history, which the Tribunal does not accept for the reasons given above, [the applicant] also states his wife will not be able to financially support him if he returns to Sri Lanka due to difficulties rebuilding the business following his offending. He says his brother is running the [business] and barely makes enough to support his own family.[38]
[38] Statutory declaration dated 22 May 2019
143. In the report provided from the Sexual Offender Medium Intensity Program, [the applicant] is reported as stating he will be working in the family [business] on his release and has adequate qualifications in this area. While this appears to be referring to working within this business from Australia, it points to [the applicant] having skills consistent with being able to earn a living in this area. It is also consistent with his past employment for the family [business].
144. [The applicant] is highly educated and has studied, worked and owned a business in Sri Lanka.
145. The Tribunal does not accept [the applicant] would be unable to earn a livelihood of any kind such that he is unable to subsist. It rejects the claim that he would find it very hard to obtain a job in Sri Lanka and this would cause him financial hardship to the extent that he would find it difficult to survive.
Cumulative factors
146. The Tribunal considered whether the combination of factors affecting [the applicant] would mean he is at a real chance of serious harm if he returns to Sri Lanka.
147. In particular, the Tribunal considered whether his criminal history and return from Australia would mean he would come to the attention of authorities, leading to a higher likelihood of being arrested and assaulted by police. The Tribunal is not satisfied there is a real chance he would come to the attention of Sri Lankan authorities such that there would be a real chance of detention, or adverse treatment due to any or all of the combination of his intersex status, a perception that he is transgender, a perception he is homosexual, or a perception he is a sex worker or his criminal history.
148. Having considered all the factors in combination with each other and also cumulatively, the Tribunal finds there is no real chance [the applicant] would be persecuted because of his religion or membership of a particular social group, and does not meet s.5J(2)(b).
Conclusion refugee criteria
149. As the Tribunal has found that none of [the applicant]’s claims individually or cumulatively result in him meeting the criteria to have a well-founded fear of persecution, he does not meet s.36(2)(a) for the grant of a protection visa and, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
COMPLEMENTARY PROTECTION
150. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if there are 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’).
151. The meaning of significant harm is set out in s.36(2A) of the Act. A non-citizen will suffer significant harm if the person will be arbitrarily deprived or his or her life, the death penalty will be carried out, the person will be subjected to torture, the person will be subject to cruel or inhuman treatment or punishment or the person will be subjected to degrading treatment or punishment.
152. Under s.36(2B) there taken not to be a real risk of significant harm if it would be reasonable for the person to relocate to an area of the country whether there would not be a real risk of significant harm, or the person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm or the real risk is one faced by the population of the country generally and is no faced by the non-citizen personally.
153. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
154. The Tribunal has found that [the applicant] does not face a real chance of serious harm due to his religion, intersex status, a perception that he is transgender, a perception he is homosexual, a perception he is a sex worker, a perception he is Australian or because of his criminal history. For the same reasons, the Tribunal finds he does not face a real risk of significant harm.
155. The Tribunal finds that [the applicant] can live with his parents in Sri Lanka and has skills that mean he can seek employment. It finds he will not suffer significant harm if he returns to Sri Lanka in terms of being arbitrarily deprived of his life, subjected to torture, subjected to cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment.
156. As a result, the Tribunal finds [the applicant] does not meet the criteria in s.36(2)(aa) of the Act.
157. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
158. The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…

5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 2069

25 February 2020

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