2115159 (Refugee)
[2025] ARTA 1937
•14 July 2025
2115159 (REFUGEE) [2025] ARTA 1937 (14 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2115159
Tribunal:General Member M Brereton
Date: 14 July 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Statement made on 14 July 2025 at 10:14am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – race – Tamil – particular social group – women – single mother – imputed political opinion – family involvement with the Liberation Tigers of Tamil Eelam (LTTE) – death of father – court witness to a murder – sexual assault – fear of killing – mental health issues – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Sri Lanka, applied for the visa on 26 May 2017. The delegate refused to grant the visa on the basis that they did not consider the applicant’s claims to fear harm are credible, nor will she face persecution in Sri Lanka for any other reason or reasons.
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 11 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review.
BACKGROUND
The applicant is [an age]-year-old Tamil Hindu woman from the [District 1] in the Northwest of Sri Lanka. She arrived in Australia [in] February 2017 as the holder of a temporary business visa. She was single with no children at the time she arrived. Since her arrival she has married another Sri Lankan visa applicant and has [children] born in Australia.
Evidence before the Department
Protection visa application
In her application for the protection visa, the applicant claims that her father had been suspected of helping the Liberation Tigers of Tamil Eelam (LTTE) and had been murdered in 2008. The applicant (who was [age] at the time) was a witness to the murder and gave evidence in court against the killers. People began threatening and assaulting her and her family to force them to withdraw the case. People tried to rape and kill the applicant. The applicant fled to Australia and her stepmother fled to [Country 1].
The interview
The applicant attended an interview with a delegate on 9 June 2021. She provided a post interview submission after the interview. The Tribunal has listened to the audio recording of the interview and has read the post interview submission.
Summary of the delegate’s decision
The delegate noted that Departmental records indicate that the applicant arrived in Australia with a group of Sri Lankan nationals to attend [an international event] with the approval of the Sri Lankan authorities. The delegate found that there is nothing in the actions of the authorities to indicate that they were after the applicant because of her association with her father. The delegate did not accept as credible that the applicant was of adverse interest to the Sri Lankan authorities because of her father’s profile. The delegate found that the applicant provided limited testimony and supporting evidence to suggest that her father was actively involved in any political activities adverse to the interest of the Sri Lankan authorities or maintained associations with the LTTE.
The delegate found it difficult to believe that nine years after the claimed murder, the accused ([Name 1]) came to demand the withdrawal of the case by the applicant. The applicant did not provide any evidence of the status of any case against [Name 1] and no country information was located about the existence of [Name 1] and his group. The delegate did not accept as credible the applicant’s claims that in 2017 she was assaulted and threatened by [Name 1] and his group.
Based on country information the delegate found there is not a real chance the applicant will face serious harm in Sri Lanka for being a “failed asylum seeker.” The delegate was not satisfied that the applicant faces a real chance or real risk of relevant harm should she return to Sri Lanka.
Evidence before the Tribunal
The hearing
This matter was first listed for hearing on 19 May 2025. Prior to that hearing date the applicant requested a postponement because she was in the process of obtaining legal representation. The Tribunal postponed the hearing to 11 June 2025. The applicant retained the representative on 3 June 2025. The applicant and her representative attended the hearing on 11 June 2025. The applicant’s evidence and submissions are considered below.
Post-hearing submissions
The Tribunal invited the applicant to provide further submissions and medical information following the hearing. On 9 July 2025, the applicant provided post-hearing submissions and a pyscho-social report from [Agency 1]. These are considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issues in this case are the applicant’s fear of harm because she was a witness in a murder trial who suffered intimidation, harassment, and sexual assault, and as a woman and a single mother should she return to Sri Lanka. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a Tamil Hindu and a national of Sri Lanka. She has provided copies of Sri Lankan identity documents and gave evidence with the assistance of a Tamil interpreter. She told the Tribunal that she does not have a right to enter or reside in any other country. The Tribunal accepts the applicant’s claims as to identity, ethnicity, and religion. The Tribunal finds that she is a Tamil Hindu from Sri Lanka, and that Sri Lanka is the receiving country and country of reference for the purposes of this review.
Family
The applicant told the Tribunal that her birth mother left when the applicant was very young, and they have no contact. She has [a sibling] with whom she has no contact. She has a stepmother who had fled to [Country 1] but has now returned to Sri Lanka. She has a younger stepbrother who remains in Sri Lanka.
The applicant claims, and the Tribunal accepts, that she commenced a de facto relationship with a Sri Lankan visa applicant soon after she arrived in Australia. They married in May 2017. She has a [children], born in [specified years] in Australia. The family live together as a family unit. She said that her husband has an application for a protection visa in process. Her husband and children are not applicants for the purposes of the applicant’s visa application.
Psycho-social report
The applicant has provided a post-hearing psycho-social report from [Agency 1],[1] dated 3 July 2025. This report states that the applicant has been attending counselling sessions since December 2023. This counselling has comprised completing a:
… comprehensive psychosocial assessment and providing ongoing counselling sessions, the latest of which was on the 5th June 2025. We have met for 10 sessions face to face, primarily at our [location], with some held at [the applicant’s] home, all facilitated with a Tamil, female interpreter. Telephone support has also been provided in between these sessions. The number of sessions have been limited in part, due to me having to take some unplanned extended personal leave in 2024. Telephone support and counselling sessions were offered to [the applicant] during my absence, however she declined meeting with another counsellor, preferring to wait for my return.
[1] [Agency name deleted.]
The counsellor makes the following observations about the applicant:
When I first met [the applicant], she displayed severe anxiety and distress. Her emotional state was unstable, showing fluctuations that highlighted her struggles with self-regulation and coping mechanisms. During our sessions, [the applicant] frequently became visibly upset, often breaking down into tears as she shared her traumatic experiences.
[The applicant] reported she continues to have intrusive thoughts about the past, flashbacks and nightmares related to her father’s murder, which disrupt her daily functioning and contribute to feelings of isolation and helplessness. When feeling overwhelmed, she often retreats into solitude, taking time away from her husband and children, where she talks to the memory of her deceased father.
She reported disrupted sleep patterns, often struggling to fall asleep until around 2-3 am. The nightmares wake her when she does fall asleep and this exacerbates her fatigue impacting her cognitive functioning and overall wellbeing. She has found it increasingly difficult to cope with the weight of these challenges, leading to feelings of despair and hopelessness that permeate her daily life. The impact of her unresolved trauma has created significant barriers to her recovery and overall quality of life.
During counselling sessions, she has repeatedly expressed distress when discussing her experiences in Sri Lanka, particularly those related to the sexual assaults she endured. These traumatic memories have significantly impacted her relationships, particularly her ability to trust males. The emotional weight of her experiences creates barriers in her forming secure connections, often leading to feelings of anxiety and fear when interacting with men. She reports only being able to share some of the details of past events with her husband, due to deep feelings of shame.
[The applicant] has articulated ongoing concerns about her future, specifically regarding her visa status and financial insecurity. Throughout our sessions, [the applicant] has displayed fluctuating emotional states, often experiencing overwhelming guilt and helplessness, particularly her inability to contribute financially for her family in Australia. While her functioning has improved somewhat with social support from friends and community members, she continues to grapple with the trauma of her past.
[The applicant] has reported fear of returning to Sri Lanka and the potential repercussions of identifying a key individual related to her father’s murder. She has shown distress about the prospect of family separation if she were to be returned to Sri Lanka and the children were to remain in Australia. The prospect of returning to an environment tied to her traumatic experiences triggers intense anxiety for [the applicant], significantly diminishing her capacity to cope with daily challenges. This would likely lead to a deterioration in her mental health, as the combined stress of returning and the uncertainties surrounding her safety, along with preexisting cultural and social challenges would likely further exacerbate her trauma.
Although [the applicant] has made some progress in acknowledging her trauma and expressing her feelings, she often struggles engaging in more in-depth trauma work, becoming emotionally overwhelmed when delving into her experiences.
The counsellor concludes:
She has reported several traumatic events which continue to impact her via symptoms of traumatic stress. She experiences high levels of anxiety and stress about her current circumstances and continues to grapple with feelings of guilt, helplessness and a sense of isolation. She has few coping skills to manage her emotional dysregulation when she becomes overwhelmed, other than to self isolate or to try to keep herself distracted.
While [the applicant] has made some progress during counselling, it is evident that she requires ongoing, trauma-informed support to fully address her complex emotions and to develop effective coping mechanisms. [The applicant] would benefit from continued therapeutic intervention to process her trauma, regain a sense of control, and enhance her ability to manage her responsibilities as a mother and wife. Without support, the risk to her mental health remains substantial. With sustained counselling, it is hoped that [the applicant] will gradually find pathways to healing and reclaim stability in her life.
Claims
The applicant told the Tribunal that her father had supported the LTTE in Sri Lanka. In April 2008, when the applicant was [age] years old, people came to the family home and shot her father dead. Her father said the name [Name 1] as he was dying, and the applicant told the police. The Tribunal asked her to clarify who or what [Name 1] is. She said that it is a group of persons known as the [Name 1] Group. It is a Sinhalese and pro-government group that has worked with the Sri Lankan Army in the past. She said that the leader was referred to as [Name 1], but she does not know if that is his real name.
The Tribunal asked the applicant about the following concerns that the delegate had noted:
According to the applicant, her stepmother and uncle reported the murder the following morning. When asked in why the police report she presented was dated [in] March 2013, the applicant said that she did not know. She said that her stepmother provided her with the documents in relation to the father’s case. When asked to explain why the police report, dated [in] March 2013, records her mother’s statement [the father] was killed by unidentified people, the applicant said that [Name 1] killed her father on [a day in April] 2008. When asked to explain why the Death Certificate she presented stated that her father was killed on [the previous day in] April 2008, the applicant said that her father was killed around midnight on [the previous day]. When asked to explain why the Death Certificate records the date of registration as 2009 and contains another date noted as [a day in 2022], the applicant stated that she could not explain and then restated that her father was killed on [the day in April] 2008. The applicant’s representative stated that the dates in Sri Lanka recorded backwards. It was put to the representative that even if it is read backwards, it still does not reflect the date attested to by the applicant that her father’s death was reported to police. The representative did not provide a comment.
…
in her explanations after the interview the applicant also stated, “The incident happened on the mid night of [the previous day in] April 2008. The handover of the body happened on the [the specified day in April] 2008. Therefore, the family considered his date of death as the [the next day in April] 2008.” In this regard, I note the document from the Judicial Medical Officer, dated [the specifed day in April] 2008, states [the day after that] as the handover of the dead body.
…
I further note that after the PV interview, the applicant submitted three photographs. Two depicting a dead body of a man and a third photograph showing group of sitting women and children. I note that the images do not contain any identifying features to indicate the time, location and the people in the photos. I further note the dead body does not show gunshot injuries to the chest as reported in the Register of Death. I further note that according to the applicant’s written PV application, her father was killed inside the house, but the photo depicts the dead body outside the building.
The applicant told the Tribunal that she was aged [age] at the time of the shooting. It happened at around midnight, and she does not know why the dates on the various documents are different. The Tribunal has examined the documents and agrees that the death certificate states the death occurred on [the earlier day in] April 2008. A police report provided for a court hearing in 2013 states that the incident was reported on [the specified day in April] 2008. The court summons documents contain a certificate from a magistrate which appears to be dated [that specified day in April] 2008, directing that a postmortem be carried out. This is countersigned on behalf of the Judicial Medical Officer on [the day after that]. The Tribunal notes that the incident took place at around midnight on [the previous day in April] 2008 and does not consider the applicant’s statement that her father died on [the specified day in April] 2008 is inconsistent with the documents; rather, it is clear to the Tribunal that the shooting took place just before midnight (hence on [the earlier day in] April 2008 which is the date on the death certificate). It was evidently reported to the police soon after midnight and the reports therefore record [the specified day in April] 2008. This is also the date that the magistrate ordered the body released for postmortem.
The Tribunal agrees that the death certificate has an additional date written on it, being “[date]”. This appears as a stamp on the bottom of the certificate and is not within any of the boxes which record the substantive information. According to the translation, this date precedes the statement “I do hereby certify that the foregoing is a true copy of a death registration entry filed of (sic) records in this office”. The Tribunal finds that this date most likely refers to the date that the extract of the certificate was produced and does not cast any doubt on the substantive information therein.
The delegate was troubled that the police report dated [in] March 2013 refers to “unidentified people” as the perpetrators, whereas the applicant claims to know who it was. This report is essentially a covering letter, noting that the author had consulted records made at the time of the shooting. It refers to information being provided by the applicant’s stepmother. The Tribunal takes into account the applicant’s evidence that she is the person who heard what her father said about [Name 1]. This is supported by the witness summons she has provided which corroborates her claim to have been a witness in the trial. The Tribunal does not consider it inconsistent that the statement made to the police by the stepmother (and not the applicant) just after the incident does not identify [Name 1].
The Tribunal asked about the photographs provided with the application. The applicant said that these photographs were taken by the police during the investigation. The photographs appear to show the body of a man inside a house (face down), outside the house (face up), and in a vehicle (face up). This suggests that the photographs were taken during the course of the investigation and removal of the body, and the Tribunal does not draw any adverse inferences from the positioning of the body.
The Tribunal agrees with the delegate that the photographs show what appears to be a large cut to the lower side of the chest rather than a gunshot wound. However, the body’s right hand is positioned over the upper chest, and it is possible that there could be a gunshot wound concealed by the hand. The photographs do not identify location, date/time, or identity and to that extent the Tribunal does not consider the photographs to be highly probative of the circumstances of the father’s death. Nevertheless, they are not inconsistent with the applicant’s claims and do not give rise to any doubts regarding those claims in the Tribunal’s mind.
Having regard to all the above, the Tribunal accepts the applicant’s evidence that her father was shot and killed on the night of [the date range in April] 2008. The Tribunal accepts that she heard her father mention the name [Name 1] before he died.
The summons provided by the applicant contains a case number commencing HC. The document provides the alternatives Magistrates Court/District Court/High Court, and the Tribunal infers from this that the summons has been issued in the High Court. It is dated [in] August 2013, names the applicant, and directs her to appear on [a day in] March 2014. The summons names a person with the surname [Mr A] as the accused. The particulars are said to relate to “S 296”. Section 296 of the Sri Lankan Penal Code sets out murder as a capital case.[2] The Tribunal accepts that the applicant was called as a witness in relation to the trial of [Mr A] for the murder of her father.
[2] Sri Lanka Penal Code as at 2021: Penal Code Ordinance
Having reached the above view, the Tribunal has considered the claims of harassment, threats, and assault. The applicant’s statement of claim with her protection visa application states:
At the beginning of January 2017, [[Name 1]] and 3 more men came to our house at night. [[Name 1]] threatened to kill my step-brother if we don't withdraw the case from the court. We said no. He tied my hands at the back and sexually harassed me. He put a plastic bag around my neck and tightened it. I struggled to breath and thought I was dying. My step-mother fell on his feet and begged him to let me go and she will withdraw the case from the court. They released me and threatened to rape and kill me if my step-mother fails to withdraw the case.
…
My mother and I attended a court hearing [on] February 2017. We did not withdraw the case. We wanted justice for my father's death. [Name 1] and four other men came to our house while she is preparing food parcels. They slapped my step-mother. They pulled me to the bed room and torn my clothes and started to sexually harass me until my step-mother promised she would withdraw the case. I was in so much fear, my body was shivering and aching. I feared they would rape and kill me.
In 2017 the applicant was aged [age range] and was still living with her stepmother. She had no contact with her birth mother and her father had been murdered. The applicant’s evidence of her father’s dying words implicates [Name 1] as the killer and on its face appears to be significant to the prosecution case. While the summons indicates that the applicant was called to give evidence in 2014, she told the Tribunal that there were a number of court hearings between then and 2017, and at the time she left Sri Lanka the court case was ongoing. It is plausible, and the Tribunal accepts, that [Name 1], or people allied with him, saw the applicant as a threat and a vulnerable target. The Tribunal accepts that the applicant faced threats, harassment, assaults, and sexual assaults, and that these were aimed at intimidating her and her stepmother into withdrawing their evidence.
Refugee Consideration
The applicant gave evidence that she believes her father had something to do with the LTTE and that he had a picture of the LTTE leader in the house. She believes this may be the reason or part of the reason he was killed. The applicant does not claim that she, or any other member of her family, has ever been questioned, harassed, or otherwise been of any interest to the Sri Lankan authorities because of any real or imputed links to the LTTE through her father or otherwise. The Tribunal accepts that the applicant’s father may have supported the LTTE but there is no evidence or information before the Tribunal suggesting that he was otherwise involved, of adverse interest to the authorities, or that the murder was related to the LTTE in any way. The Tribunal is not satisfied that the applicant’s father had any particular profile other than being a Tamil Hindu in the northwestern part of Sri Lanka, at a time when many Tamils were supporters of the LTTE. The Tribunal accepts that the father may have been imputed to be a supporter of the LTTE but is not satisfied that the father’s murder was because of this profile. The Tribunal also takes into account the lack of any adverse interest in the applicant or her family because of any imputed LTTE links. The Tribunal finds that the applicant does not have a profile as a real or imputed supporter, or associate of, the LTTE, or as a family member of a real or imputed LTTE member or supporter. The Tribunal finds that the applicant does not face a real chance of harm for any reason associated with her or her father’s (or her family’s) real or imputed political opinion as members or supporters of, or as persons otherwise associated with, the LTTE.
The applicant claims that she will face harm from [Name 1] and/or other persons because of the criminal trial, should she return to Sri Lanka. She told the Tribunal that [Name 1] is not in custody. She believes the trial may have “stopped” but she does not know if that means the trial is over or if the trial is delayed for other reasons. The Tribunal asked why [Name 1] will still wish to harm her if the trial is stopped and she said that [Name 1] is angry that she identified him, and anything might happen at any moment.
The Tribunal is not able to determine whether the trial has concluded or whether it is adjourned. It may be, for example, that the trial is adjourned because the applicant is not within the jurisdiction and is unable to give evidence. Ultimately, there is no information or evidence before the Tribunal suggesting that [Name 1] has been acquitted or that the trial is otherwise abandoned. The Tribunal has considered all of the matters before it as a whole and has come to the view that there is a small, but not remote chance that [Name 1], or people associated with [Name 1], will still wish to harass, threaten, assault, and otherwise intimidate the applicant should she return to Sri Lanka. The Tribunal finds that there is a real chance that she may face harm from [Name 1] and/or [Name 1’s] associates should she return to Sri Lanka.
The applicant was targeted because of her specific profile as a witness in a murder trial. The Tribunal finds that the perpetrators were, and will in future be, [Name 1] or people linked to or associated with [Name 1]. The Tribunal finds that any harm the applicant may face for this reason should she return to Sri Lanka will not be harm directed at her because of her race, religion, nationality, or political opinion. The Tribunal has considered her very specific and individual profile and is not satisfied that it constitutes a particular social group as contemplated by the Act. The Tribunal finds that any harm the applicant fears at the hands of [Name 1] or his associates will not be directed at her for one or more of the reasons in s 5J(1)(a). The Tribunal finds that she does not have a well-founded fear of persecution at the hands of [Name 1] or his associates. However, the Tribunal will consider this risk of harm further when considering complementary protection.
The applicant’s personal circumstances should she return to Sri Lanka now are not limited to the circumstances when she left. The applicant is now an adult woman who is married and has two young children. The Tribunal asked her what will happen with the family unit if the applicant has to return to Sri Lanka. She said that her husband will stay here, and she hopes the children can stay with him. The Tribunal asked what will happen if her husband’s visa application is also refused. She said that they will probably stay together if they go back. She said that the only place they know is the province where they lived previously. She said that they would have to live there in hiding and in fear of their lives.
The Tribunal has no information confirming whether or not the applicant’s husband has been granted a protection visa, or the timeframe for any decision. The Tribunal has proceeded on the basis that the husband has an extant application and finds that as such, he will not return to Sri Lanka with the applicant in the forseeable future. The Tribunal accepts the applicant’s desire that her children remain here in Australia but given the young ages of the children, the Tribunal finds it is more than likely that the children will remain with the mother. For these reasons, the Tribunal finds that if the visa applicant returns to Sri Lanka, she will be returning as a single mother with two young children.
The Australian Department of Foreign Affairs and Trade (DFAT) makes the following observations in relation to single women in Sri Lanka:
According to in-country sources, sexual harassment and sexual violence (including sexual abuse) toward women was prevalent, particularly on public transport. Prevalence has reportedly increased in the last two years, with underage (and often incestuous) pregnancies a growing concern. In-country sources reported that victims of sexual harassment and sexual violence were reluctant to report to the police or seek medical support due to a feeling of shame, risk of social stigma and, should their experience become widely known, a fear they would be unable to marry.
In-country sources reported that there was some social stigma attached to single women. Traditional attitudes dictate that women should marry by a certain age and bear children, and aspersions are cast on those women who fail to meet – including by choice – these societal expectations. However, in-country sources told DFAT that single women were frequently able to live full lives in urban areas and in villages, where they often had extended family networks and their capacity to support family members – including elders, nieces and nephews – was valued.[3]
[3] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Sri Lanka’, 2 May 2024, at [3.143], [3.157].
DFAT has also reported on female-headed households in Sri Lanka, noting that:
Female-headed households are vulnerable to poverty and sexual exploitation. Many are indebted, having taken out high-interest rate loans from microfinance companies. Employment conditions and general quality of life for female-headed households has declined with the economic crisis, and female-headed households are more likely to be food insecure. According to the US Department of State, some women have reported requests for sexual favours by officials in exchange for information about missing husbands or government services and benefits.
DFAT assesses that female-headed households generally face a low risk of official or societal discrimination. Like women more broadly, female-headed households face a moderate risk of GBV, including sexual harassment and assault. Authorities may monitor female-headed households with suspected family links to the LTTE. DFAT assesses that single women face a low risk of official or societal discrimination.[4]
[4] DFAT, at [3.154], [3.158].
The applicant’s evidence is that she has no family in Sri Lanka other than her stepmother and a stepbrother. She does not have regular contact with her stepbrother and the Tribunal finds that she and her children will not live with the stepbrother. While the applicant may be able to reside with her stepmother, the Tribunal finds that the applicant will either head, or else live in a female-headed household should she return to Sri Lanka. The Tribunal also finds that she will be doing so as a young woman who, while still a child, witnessed the violent murder of her father. In her teenage years she was called as a witness for the prosecution and experienced violence, attempted sexual assault, death threats, and harassment. In addition, she will be a single mother supporting two young children, without the assistance of an extended family to assist her. Further, the [Agency 1] report sets out the applicant’s fragile emotional and mental state, her fears for her family, and the fear of separation. The Tribunal finds that the applicant’s vulnerability in Sri Lanka will be exacerbated because of her personal profile and past experiences. The Tribunal finds that she faces an objectively real chance of being harmed as a single mother in a female headed household. This may include sexual harassment and sexual violence, and the Tribunal finds that it is harm of a type that can be considered serious harm as contemplated by the Act.
The information before the Tribunal indicates that there is a higher chance of harm for Tamil women in the areas of Sri Lanka affected by the past conflict, being the north and the east. There is less chance of women facing harm outside those areas. The Tribunal is satisfied that the applicant faces a real chance of serious harm as a single mother and member of a female headed household, should she return to her home area in Sri Lanka. The Tribunal is not satisfied that the chance of harm remains the same throughout Sri Lanka and having regard to the information cited above, the Tribunal finds that the applicant does not face a real chance of serious harm if she returns to the central, southern, or Colombo areas of Sri Lanka. As the chance of harm does not extend to all areas of Sri Lanka, the applicant does not have a well-founded fear of persecution as a single mother and member of a female headed household in Sri Lanka.
Having regard to all of the above, the Tribunal finds that the applicant does not face a real chance of harm that will comprise, include, or amount to, serious harm as contemplated by the Act, for any reason or combination of reasons under s 5J(1)(a), should she return to Sri Lanka. The applicant does not have a well-founded fear of persecution should she return to Sri Lanka.
For the reasons given above, 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
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This criterion provides for:
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.
‘Significant harm’ is exhaustively defined at s 36(2A):
(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.
The Tribunal has found above that there is a real chance that the applicant will face harm (including threats (including the threat of sexual assault), harassment, assaults, sexual assaults, and intimidation) from [Name 1] and or persons associated with [Name 1], now or in the reasonably foreseeable future, should she return to Sri Lanka. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. Having regard to this, and for the same reasons as given above, the Tribunal finds that the applicant faces a real risk of harm from [Name 1] and or his associates, now or in the reasonably foreseeable future, should she return to Sri Lanka.
The applicant has faced threats (including the threat of sexual assault), assaults, intimidation, and harassment in the past. The Tribunal acknowledges that past harm is not necessarily indicative of the level of future harm but in the present case, the perpetrators will be the same persons, and the harm will be inflicted for the same objective. The Tribunal finds that the types of harm the applicant may face in Sri Lanka now will be the same types of threats (including the threat of sexual assault), assaults, sexual assaults, intimidation, and harassment. The Tribunal is satisfied that this will include, comprise, or amount to, the intentional infliction of cruel or inhuman treatment or punishment, or degrading treatment or punishment: s 36(2A).
The Tribunal has also found above the applicant will face serious harm as a single mother and member of a female headed household should she return to her home area of Sri Lanka. The types of harm she may face includes sexual violence and sexual harassment and the Tribunal is satisfied that this will include, comprise, or amount to, the intentional infliction of cruel or inhuman treatment or punishment, or degrading treatment or punishment: s 36(2A).
The harm that the applicant has experienced in the past occurred while she was living in the same part of Sri Lanka where her father was murdered, and where the trial was proceeding. As noted above, the Tribunal has found that the chance or risk of harm as a single mother and member of a female headed household is reduced if she relocates to another part of Sri Lanka. The Tribunal has considered whether the applicant can relocate to avoid the risk of harm from [Name 1] and any risk of harm as a single mother, and whether it is reasonable for her to do so.
At the hearing, the Tribunal asked the applicant about family members she may be able to live with. She said that the only family member she has any contact with it (albeit not regular contact) is her stepmother, who has returned to [Town 1] in the northwestern part of Sri Lanka, but they are not close. The applicant said that her husband’s family comes from the same area where she grew up, but she does not know any of them and has not been in contact with them from Australia.
The Tribunal has considered the applicant’s personal circumstances carefully. The Tribunal finds that should she return and settle outside her home area, she will be alone and without familial or community support. The Tribunal has noted the DFAT information above about the importance of such support. The applicant will essentially be a stranger, who has spent many years outside Sri Lanka, and who will be trying to raise two young children. The Tribunal has also given great weight to the applicant’s psychological vulnerabilities. The [Agency 1] report expresses cautious optimism for the applicant if she is able to access ongoing counselling and support. This assessment is based on the applicant remaining in a safe and stable environment. The Tribunal considers that a return to Sri Lanka will be of significant detriment to the applicant’s mental health, including her ability and willingness to seek the support that she needs. This will be further exacerbated if she is returning to an unfamiliar area without any family or community contacts. The applicant will also face significant difficulties caring for two young children while trying to find and maintain work to support the family. The Tribunal finds that this additional stress and pressure will further exacerbate the applicant’s fragile mental state. The Tribunal has significant concerns that the applicant will be unable to cope with life as a single mother in another area of Sri Lanka and having regard to the totality of the information set out above, the Tribunal finds that it will not be reasonable for the applicant to relocate to another part of Sri Lanka to avoid any risk of harm: s 36(2B)(a).
The risk of harm as a single mother in a female headed household in the applicant’s home area arises from conditions in Sri Lanka that affect Tamil women in female headed households generally. The harm arises from deficiencies in infrastructure and support and is not harm that can be avoided or minimised by seeking protection from the authorities. The Tribunal also takes into account the applicant’s personal vulnerabilities and the impact this may have on her willingness and ability to seek protection. The Tribunal finds that the applicant will not be able to access protection from the Sri Lankan authorities to reduce the risk of harm: s36(2B)(b).
Having regard to all the above, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Date(s) of hearing: 11 June 2025
Representative: Mr Mume Abdulaziz
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.
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