2214199 (Refugee) - [2024] ARTA 883

2214199 (Refugee) [2024] ARTA 883 (17 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2214199
Tribunal:General Member, J McLeod
Date:17 December 2024

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 17 December 2024 at 2.44pm
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – religion – converted to Christianity – abuse and harassment from their in-laws – victim of sexual harassment and sexual violence – suffered various forms of abuse amounting to serious harm at the hands of their late husband/father – membership of a social group – a widowed woman – there is a real chance that the applicant will suffer serious harm – membership of the same family unit – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 46, 65, 367, 499
Migration Regulations 1994, r 1.12, Schedule 2
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 20 September 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be nationals of Sri Lanka. They are part of a family group comprised of Applicant 1 and her two children, Applicant 2 and Applicant 3. They arrived in Australia together on [date] August 2016 and applied for the protection visas on 5 September 2016. At the time of arrival, Applicant 2 was [age] years old, and Applicant 3 was [age] years old. They are now aged [age] and [age].
The applicants have consistently claimed to have been abused by Applicant 1’s late husband and his family (their ‘in-laws’), that their in-laws have forcibly taken possession of their property and that they will be further harmed by their in-laws if they return. They have also consistently claimed that they would face harm on account Applicant 1 being a widowed woman and their not having any male protection in Sri Lanka.
Applicant 1 participated in a protection visa interview with the delegate in July 2022 and on 20 September 2022, the delegate refused the grant of visas. Although the delegate accepted most of their claims of previous harm and that the in-laws have forcibly taken possession of their property in Sri Lanka, they found that as Applicant 1’s husband is now deceased, she is no longer married to him, will not face harm from her in-laws and can pursue the property dispute through lawful means. The delegate also found that the applicants would not be without male family support in Sri Lanka and that they would not face any gender-based harm.
The applicants lodged an application for the Tribunal’s review of the delegate’s decision on 26 September 2022. They have raised additional sur place claims before the Tribunal, and they have been represented in relation to the review.
Between 10 and 18 October 2024, the Tribunal received updated information and evidence from the applicants including written statements from Applicant 1 and several witnesses, legal submissions and country information and other documentary evidence. Accompanied by their representative, the applicants all appeared in a hearing before the Tribunal on 18 October 2024, to give evidence and present arguments. While most of the evidence was given by Applicant 1, both Applicants 2 and 3 also gave some evidence. The Tribunal also received oral evidence from two witnesses including Applicant 1’s de facto partner and her friend. The hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
Transition to the Administrative Review Tribunal (ART)
On 14 October 2024 the Administrative Appeals Tribunal (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.
RELEVANT CRITERIA AND MANDATORY CONSIDERATIONS
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.
Criteria for establishing that a dependent child is a member of the same family unit
Sections 36(2)(b) provides as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a), who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
The definition of ‘member of the family unit’ appears in reg 1.12 of the Regulations. Relevantly, reg 1.12(3)-(4) state that:
(3) Sub regulation (4) has effect for the purposes of the main definition so far as it is relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:
(a) a Protection (Class XA) visa;
…
(4) A person is a member of the family unit of another person (the family head) if the person is:
….
(b) a dependent child of:
(ii) the family head.
…
‘Dependent child’ is defined in reg 1.03 as follows:
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a)has not turned 18
…
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.
FINDINGS ON IDENTITY, NATIONALITY, THIRD COUNTRY PROTECTION
The applicants claim to be Sri Lankan citizens who have no right to enter and reside elsewhere.
The Tribunal places weight on the documentary evidence provided including their Sri Lankan passports, birth certificates, Applicant 1’s marriage certificate and some education documents, as well as the biographical narrative and background information as told in the protection visa interview and Tribunal hearing.
There is no evidence to suggest that any of the applicants have ever lived anywhere apart from in Sri Lanka or Australia, or that they have a current and existing right to enter and reside in any other country.
The Tribunal accepts that the applicants’ identities and nationalities are as claimed, and that Applicants 2 and 3 are the children of Applicant 1. The Tribunal finds that Sri Lanka is their receiving country for the purpose of this assessment.
Based on the evidence the Tribunal also finds that the applicants do not have a right to enter and reside in any country apart from Sri Lanka. The Tribunal finds that s 36(3) does not apply in the circumstances of this case.
PROTECTION CLAIMS AND EVIDENCE
The applicants have provided a lot of information relevant to their background and protection claims across the primary stage and review. It has all remained substantially consistent and is summarised in the paragraphs that follow.
Applicant 1 is a Sinhalese female from [a] District, Sri Lanka. She was widowed in May 2016 when her husband of 22 years died in a motorcycle accident. Due to problems with her late husband’s family, in August 2016, Applicant 1 came to Australia where her brother was already living.
Her husband’s family had been overbearing and consistently interfered in their marriage, and eventually drove him to alcoholism. He became physically and emotionally abusive towards the applicants, twice resulting in Applicant 1’s hospitalisation. Applicant 1 repeatedly complained to the police about him in 2015 and 2016. They police would speak to her husband and give him a warning about his behaviour, but the police just wanted them to reconcile and did not take other action. Her husband’s family also physically abused her in punishment for going to the police.
Following the husband’s death, his parents and brothers continued abusing and harassing the applicants. They had always been problematic while he was alive, but they were angry about Applicant 1’s complaints to the police and even though he died in a road accident, they also blamed her for his death. They are also driven by greed and property ownership. Applicant 1 owns two properties – one that she and the children inherited from her husband in [District 1] (which his own parents had originally gifted to him) and one which she herself bought at the end of 2015 in [Town 1]. They were living in the [Town 1] house when her husband died.
Applicant 1 has given several examples of the abuse and harassment she and the children endured from their in-laws. She claims that:
-they deliberately traumatised her and the children by burying her husband in front of their [District 1] home and forcing them to come live there, lighting up his grave at night. The applicants suffered being forced to live and sleep so close to the body. They tried going to stay with her parents in [Town 1], but their in-laws abused and harassed them, and they had to return to the [District 1] house.
-they also sought to have Applicant 1’s father-in-law buried there when he died in 2017. However Applicant 1 appealed to her sister-in-law (who lives in [another country]) who intervened and convinced them to stop.
-they regularly invaded their home and verbally and physically abused her.
-they threated to kill her numerous times, including once at her workplace in front of other staff.
-in June 2016, one of her brothers-in-law, ‘S’, sent Applicant 1 intimidating and derogatory mobile messages, calling her a ‘dirty prostitute’ and threatening to finish her off. Another brother-in-law, ‘W’ also followed her to the temple one night and threatened her with a weapon.
-in July 2016, W broke into their home, physically assaulted Applicant 1 and tried to rape her. She bit him and managed to escape.
-S and W once tried to take the children by force but were stopped by Applicant 1’s father. W also tried luring Applicant 2 away his school one day.
Although Applicant 1 sought help police help numerous times from the [Town 2] station, no substantive action was ever taken and the in-laws threatened Applicant 1, forcing her to lie on occasions they followed-up.
Her father-in-law (who has since died since she came to Australia) was an [government employee], two of her brothers-in-laws were [government employees] but were terminated for corrupt behaviour and one of her brothers-in-law is still a [government employee], in [a] district.
The applicant’s brother (an Australian citizen) was already living in Australia, and he suggested she and the children come here, so they did, in August 2016.
They have been living in Victoria, Australia ever since their arrival. The children have been doing well in school here and the applicant has been working in [a sector]. In Sri Lanka she had been a [occupation]. She and the children have converted to Christianity and are active members of their church. It was a personal decision for the family and was not influenced by Applicant 1’s relationship with her de facto partner (who is not particularly religious himself). She is now in a de facto relationship with an Australian man she met in 2022. They are committed to each other, and he lives with her and her children. He recently went to visit Applicant 1’s parents in Sri Lanka.
The applicants claim they cannot return to Sri Lanka because they believe they will be further harassed and harmed by the husband’s family. In addition to taking possession of their property, they have threatened Applicant 1 since she has been in Australia.
The applicants believe that in addition to their longstanding dislike and anger towards Applicant 1 during the marriage and over her police complaints and her husband’s death, her in-laws are determined to keep the [District 1] property. The applicants also believe the situation will be further aggravated by Applicant 1’s re-partnering with an Australian man and by the family’s (particularly the children’s) religious conversion from Buddhism to Christianity. Applicant 1 also believes they will target her in the belief that she is now wealthier, having lived in Australia for eight years.
Additionally, the applicants claim to fear harm on the basis of Applicant 1’s status as a widow, and on the basis that if they are returned to Sri Lanka, they will have no male protection. While Applicant 1 and her de facto partner say that he would want to go to Sri Lanka and reside with them, this is complicated by his health issues which they have submitted medical evidence of, and his being able to obtain a visa. Further, they believe he will face risks from the in-laws himself. At the hearing, he gave evidence that he sought to visit the property on his recent trip to Sri Lanka, to assess the situation should they have to return, and he was abused and run out of the area by one of the late husband’s brothers. The applicants believe that not only would it serve to further aggravate the situation if he were to accompany and live with the family in Sri Lanka, and that he himself would also be a target.
Supporting documentary evidence
In advancing these claims and in support of them, the applicants provided large amounts of information to the Department and Tribunal including:
-documentation relevant to their identities and nationalities;
-detailed written statements from Applicant 1 (in September 2016 and August 2024) and diary entries spanning from 2015 to July 2017;
-several police reports lodged by Applicant 1 in 2015 and 2016 regarding mistreatment from, and fears of, her husband and her in-laws;
-a letter from the applicant (sent from Australia in May 2017) to the Inspector General of Police in Sri Lanka regarding her in-law’s threats and possession of her [District 1] property and complaining about the lack of action from local police in [Town 2];
-a response from the police in July 2017 advising that the issue was being pursued and that her father was being summoned to appear as a witness;
-a police report lodged by Applicant 1’s father in August 2018 alleging that in-laws threatened him for the keys to the applicants’ [District 1] house and breaking in and occupying it unlawfully the following day;
-photographs of the husband’s grave in front of their house and damage to their property in Sri Lanka;
-a letter from Applicant 1’s former employer in Sri Lanka attesting to the pattern of threats including death threats and abuse and harassment (including at her workplace) from the husband and in-laws, and their actions with regards to the husband’s body;
-a letter from a leader at her Temple in Sri Lanka attesting to the abuse and threats from the in-laws, their actions with regards to the husband’s body and funeral, their control and influence over Applicant 1’s life, and their intention to take custody of the children to obtain rights to the husband’s property;
-a letter from Applicant 1’s friend in [Town 2], Sri Lanka attesting to the claimed past harm committed by the husband and in-laws and to the in-laws’ intention to drive the applicants away so they could usurp their property. It also attests that the in-laws are aware of Applicant 1’s re-partnering with an Australian man conversion to Christianity.
-letters from Applicant 1’s parents in Sri Lanka, each attesting to the truth of her claims of past harm and to their own old age (both over [age]) and ailing health. They also both refer to the in-laws’ anger about Applicant 1 re-partnering and their religious conversion and state that the in-laws had forced their way into the parents’ home and warned that they would kill her if she returns;
-letters from psychologists (2019, 2024) and General Practitioners (GPs) and medication prescriptions relevant to Applicant 1’s treatment for post-traumatic stress disorder (PTSD) and depression and anxiety, which the psychologists assessed as arising from the past harms in Sri Lanka, aggravated by the uncertainty of her visa situation;
-a letter from [a] Church in [a suburb], Victoria attesting to Applicant 1’s baptism in June 2023, her church attendance and her and her children’s engagement with the church community, including through volunteerism;
-letters of support from the children’s schools in Australia, from Applicant 1’s employer here and some of the family’s friends here;
-medical evidence indicating that Applicant 3 has a [medical condition] which requires monitoring by a [specialist]; and
-a statement from Applicant 1’s de facto partner in Australia, his own medical records and a recent letter from his psychologist.
FACTUAL FINDINGS

For the most part (possibly overall), Applicant 1 has been a credible witness. She has provided detailed written statements and these, and the supporting evidence has been broadly consistent. Her oral evidence at the protection visa interview and Tribunal hearing was also detailed and consistent. It was also forthcoming and compelling, and she appeared to be giving her evidence in an organic manner and recalling personal details. Applicant 1 broke down at certain points in the Tribunal hearing, particularly when recalling her sexual assault, her husband’s abuse towards her son and the impact on her in-laws’ actions on her children. The Tribunal accepts she was overcome with trauma and emotional pain.
The Tribunal notes that the claimed sexual assault of Applicant 1 was not accepted as credible in the primary assessment. This was due in part to a perceived inconsistency about whether the Applicant 1’s brother-in-law dragged her into the backyard from inside the house or from near the outdoor toilet, something the Tribunal considers arose through misunderstanding and could be plausibly explained through a closer description of the house and garden layout. The Tribunal notes there was also a view taken that it was implausible that the applicant would have reported her husband and in-laws for other offences but not for this attack, however it accepts Applicant 1’s explanations that she was too shaken and frightened by the incident to disclose it or take it forward formally. The Tribunal considers this is plausible when considered with her other evidence about not receiving substantive help from the police in the past, and when considered with research on gender based violence (GBV) victim behaviour in the Sri Lankan context.[1] DFAT’s most recent country advice on Sri Lanka reports that fear of retaliation from the perpetrator, shame and sociocultural norms (whereby family disputes are expected to be kept private) discourage women from reporting to the police and seeking support, and that victims of sexual harassment and sexual violence have been 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.
[1] The Australian Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
The Tribunal discussed with the applicant her actions in making repeated complaints against her husband and in-laws (for things other than sexual assault) when the police seemingly weren’t prepared to act in any substantive way, when the in-laws had police experience and connections, and when she faced retaliation for doing so. She said that she didn’t know what else to try, and she believed they might eventually kill her, so she wanted to make official records of her complaints. This, she said, is also why she started the diary entries in 2015. In the circumstances, the Tribunal accepts these explanations and the claimed mindset of Applicant 1 in lodging the repeated complaints.
The Tribunal also found that Applicant 1’s descriptions of the polices’ responses – where the police warned her late husband or the family members and (in some instances) checked in again later, but where ultimately no substantive action was ever taken – to be plausible when considered with country information about such matters in Sri Lanka. DFAT reports that police and judicial responses to domestic violence can lack sensitivity and that police did not take complaints seriously. DFAT advises that where cases have proceeded to court, suspended sentences were common.[2]
[2] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
Applicant 1’s claims are supported by an abundance of documentary evidence in various forms a lot of which independently corroborates the applicants’ claims. The statements, letters and documentary evidence submitted by the applicants support their claims of past harms directly mostly towards Applicant 1, but at times towards the children was well, from the husband and in-laws in Sri Lanka, and the in-laws being motivated in part by personal grievances against Applicant 1 and partly by the property ownership. They also support that the in-laws are aware of the applicants’ religious conversion and Applicant 1’s re-partnering with an Australian man. The letters from the applicant’s parents also refer to more recent threats against the applicants and to the fragility of their own health.
The Tribunal is mindful that most of the supporting letters came from people close to the applicants and appear to have re-told things told to them by Applicant 1, and in that sense, it could be argued that their corroborative value is questionable or somewhat limited. The Tribunal has also carefully weighed up the claimed authenticity of the police reports and other official documentation, with the known prevalence of document fraud in Sri Lanka.[3]However, as the delegate also concluded, the applicant’s own evidence regarding the abuse from her husband and in-laws was coherent and plausible and the Tribunal’s impression having spoken to all three applicants, her partner who recently returned from Sri Lanka and her close friend, is that the applicants have provided a factual account and they have provided the documentation in good faith.
[3] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
Some of the claims and supporting material has only been provided at the review stage. However they all either post-date the delegate’s decision and/or serve as useful and relevant updates to their situation (e.g. with respect to Applicant 1’s re-partnering, the family’s recent conversion, recent threats and updates on the situations) which developed following the delegate’s decision and/or have been given to directly address the delegate’s concerns and conclusions. The Tribunal considers that these factors provide reasonable explanations for not providing the claims and evidence to the delegate, and no adverse inference has been drawn pursuant to s 367A. The Tribunal also does not have any concerns about the applicants engaging in conduct in Australia (for example with respect to their religious conversion or Applicant 1’s re-partnering, nor other conduct) for the purpose of strengthening their claims for protection. The Tribunal finds that s5(J)(6) does not apply.
The Tribunal accepts the applicants’ claims of past abuse, physical harm and threats from their late husband/father and his family which the Tribunal accepts continued and intensified following his death. It accepts the in-laws have forcibly taken possession of the applicants’ house and that they have issued threats of harm since the applicants have been Australia.
The Tribunal accepts that Applicant 1 and her children were victims of family violence having previously suffered various forms of abuse amounting to serious harm at the hands of their late husband/father. The Tribunal also accepts that subsequent to his death, his family members carried out physical and non-physical abuse against Applicant 1 which included persistently harassing her to give up her rights to the property, frequently invading her home and verbally and physically (and, on one occasion sexually) abusing her, creating a hostile environment. They also exerted control of over her personal decisions such as with the funeral arrangements, where her husband should be buried and where she and the children should live, repeatedly threatened her life and used threats to make her resile from complaints, and threatened custody proceedings in retaliation and as leverage in the property dispute. They have now forcibly taken possession of her house and further threats have been made in recent years against Applicant 1 and her parents. The Tribunal considers these behaviours and actions have been employed to try to control Applicant 1 and amount to coercive control.[4]
[4] National Domestic and Family Violence Bench Book, Chapter on Coercive Control, July 2024, available at: , accessed 16 November 2024
The Tribunal accepts that the husband’s family are aware of the applicant’s religious conversion and Applicant 1’s re-partnering, with an Australian man. It also accepts that the applicant’s partner sought to check on the house but was frightened away from the area by one of Applicant 1’s brothers-in-law as recently as in October 2024. The Tribunal accepts the applicants’ claimed fears are genuinely held – they fear a continuation and escalation of the issues if they return. Applicant 1 fears being killed, and her children being emotionally or physically harmed. The Tribunal also accepts Applicant 1 believes she would not be protected by police, having already repeatedly tried and failed to obtain this.
While Applicant 1’s father helped protect her and the children from the in-laws in the past, the Tribunal accepts the proffered submissions and evidence about her parents being elderly (aged [age]) and in ailing health. The Tribunal accepts the applicant’s father is no longer able to offer any meaningful protection to the applicants. And while Applicant 1’s partner would want to stay with her and the children, the Tribunal accepts his residency would be contingent on his getting a visa and his medical issues, as well as the applicants’ consideration as to whether he might aid the applicants or inflame the situation further. There seems no apparent reason he could not get a Sri Lankan visa, and the medical evidence does not indicate his medical issues are ones which could not eventually be managed in Sri Lanka, but the Tribunal is not satisfied this could occur in the reasonably foreseeable future. The Tribunal also accepts they genuinely fear that introducing Applicant 1’s partner to the environment could inflame the situation and that they would therefore not do so for a while after their return. As such, the Tribunal finds that the applicant may be perceived as a widow, or single woman, or the head of a female-headed household if she and the children return were to return now or in the reasonably foreseeable future.
PROTECTION FINDINGS IN RELATION TO APPLICANT 1
The issue being determined in this review is whether any of the applicants are refugees, meaning they have a well-founded fear of being persecuted in Sri Lanka for one or more of the five reasons mentioned in s.5J(1)(a) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Sri Lanka, there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that Applicant 1 meets the refugee criteria and therefore, the decision under review should be remitted for reconsideration.
Is there a real chance of persecution in all parts of Sri Lanka in the reasonably foreseeable future?
The applicants claim that the in-laws will quickly become aware of their return, and respond violently, fuelled by their longstanding dislike and anger towards Applicant 1 during the marriage and over her police complaints and her husband’s death and the in-laws’ determination to keep the property. Additionally, they believe the situation will be additionally aggravated by Applicant 1’s re-partnering with an Australian man and by the family’s (particularly the children’s) religious conversion from Buddhism to Christianity, and a perception that the family grew wealthier over eight years in Australia.
The Tribunal accepts the in-laws will quickly learn of the applicants’ return if they return to the [District 1] or [Town 1] area. The [District 1] house where the in-laws are living is not far from the [Town 1] house and should she seek to exert her rights of property ownership, it is likely they will find out she has returned. Applicant 1 will also have to register on return and enrol the children in school and the Tribunal is mindful too, of the in-laws’ ongoing police connection including through one of the brothers-in-law who is still an officer, albeit in another district. The Tribunal also considers that the family’s return after seven years aboard, as Christians, with a changed family unit of an Australian partner/father figure (even though he would not initially accompany them), is likely to be noticed among the community, and the in-laws would hear this way.
The Tribunal has accepted Applicant 1 and her children previously suffered physical violence and emotional and financial abuse and threatening behaviour from her late husband and his family, who condoned his abuse while alive. The delegate’s view was that with her husband dead, Applicant 1 is no longer married to him and so will not be a target for her in-laws on return. However, the Tribunal accepts that the in-laws carried out their own pattern of abuse against her following the husband’s death. It accepts the representative’s submissions that in Sri Lanka, country information indicates that widowed women often experience social stigma and isolation, and their status can leave them susceptible to further exploitation. With her husband gone, her in-laws were emboldened to abuse her and contest her legal rights to the property, and her brother-in-law also exploited the situation with his sexual assault and threats to kill her if she reported it.
The Tribunal accepts that the in-laws have also threatened Applicant 1 since she has been in Australia, including recently, and that the family acted aggressively when they saw her partner on his recent trip. The Tribunal considers these lend credible insight into the in-law’s current feelings and intentions towards Applicant 1.
While the Tribunal discussed with the applicant the possibility of her giving up her rights to the property and letting her in-laws keep the [District 1] house they have taken possession of, it accepts her response that she does not believe it would satisfy them, particularly given they are further aggravated by her re-partnering and the family’s conversion to Christianity. The Tribunal accepts that these factors, and the family’s return from Australia after eight years will be real aggravating factors at play on return. Also relevant are the Tribunal’s above findings that unlike previously, Applicant 1’s father is not in a position to protect her, and nor will her partner be in such a position within the reasonably foreseeable future.
Having regard to Applicant 1’s personal situation and history with the alleged persecutors including their past pattern of violent and abusive behaviour towards her, the aggravating factors the Tribunal accepts will be at play, the recent threats and developments referred to above, and that the Tribunal accepts she will have no adult male protection, the Tribunal accepts that the risk that Applicant 1 would be seriously harmed if she returned to Sri Lanka now or in the reasonably foreseeable future cannot be discounted as remote. The Tribunal finds there is a real chance that she will suffer persecution involving serious harm which may manifest as significant physical harassment/ill-treatment/abuse, sexual assault, and/or further threats or coercive control amounting to serious psychological harm. The Tribunal is satisfied that this harm would be personally directed at Applicant 1 and that the persecution would involve non-random and systematic and discriminatory conduct.
The Tribunal has carefully considered whether it is a realistic possibility that the in-laws would hear of the family’s return and consequently pursue them if they settled in another part of Sri Lanka. The Tribunal notes that Sri Lanka has a population of 22 million and that the applicants belong to the majority ethnic group which inhabits most parts of Sri Lanka.[5] However, as above, the Tribunal accepts it is possible that through any exercise of their property rights, through registration in a new area and school enrolment and the brother-in-law’s official connections, their whereabouts may become known. The Tribunal also considers that for this family unit – a female headed-household with a western male figure abroad (at least initially), and who are relatively new Christians and who would be settling in an area afresh after eight years abroad in a western and English speaking country with children who speak better English than Sinhalese and had previously lived in a different area of the country – even if they sought to lay low, they are likely to be noticed and a topic of local discussion. Having regard to these matters, and that the Tribunal accepts the in-laws negative behaviours and threats towards the applicants’ family has not dissipated, and they would be additionally threatened and aggravated by the circumstances of their return, it finds that it is not far-fetched or remote that the applicants could be found and faced with a further threat of harm. The Tribunal finds that relocating within Sri Lanka would not ameliorate the chance of harm to Applicant 1 and that the real chance of serious harm arises throughout the country. That is, the real chance of persecution relates to all areas of Sri Lanka, the receiving country.
Would the persecution be for one of the reasons set out in s 5J(1)(a) and is it an essential and significant reason? Are there effective protection measures available?
[5] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
The Tribunal has considered that the feared perpetrators in this case include the mother-in-law (a woman herself) and that they seem to be motivated in part by a personal distain for their son’s/brother’s wife and their claim to the property. However, the Tribunal accepts the representative’s submissions that this particular case cannot simply be characterised as a personal or property dispute.
The Tribunal accepts the submissions that Applicant 1’s fear of her late husband’s family is grounded in her gender and her status as a widowed woman. It accepts the submission that in Sri Lankan culture, widowed women often experience social stigma and isolation, and their status can leave them susceptible to further exploitation. This is supported by country information. Credible sources indicate that in Sri Lanka, single women over the age of 25 or 30 are labelled as "spinsters" and face "stigma that leaves them more susceptible to violations, particularly violence".[6] Single women or widows can be reluctant to report incidences to the police, including violent incidents out of concern that the officer will ask for sexual bribery or a fear of reprisal due to the close-knit nature of their communities and government officials. Women headed households are also said to be “vulnerable to poverty, gender-based violence and sexual exploitation, and face obstacles to accessing services and employment opportunities". Women headed households have a "double burden" as caretakers and income earners and face obstacles such as domestic violence and other issues.[7] The country information does not indicate male partners in a marriage, or male widows bear these vulnerabilities.
[6]The head of a women's organization in Sri Lanka as told to the Immigration and Refugee Board of Canada, 'LKA201522.E Sri Lanka: Situation of single women, including widows, and their treatment by society and authorities, including their ability to live on their own and access housing, education, employment, health care, and support services (2021–June 2023)', Immigration and Refugee Board of Canada, 21 June 2023, 20230802110336
[7] Immigration and Refugee Board of Canada, 'LKA201522.E Sri Lanka: Situation of single women, including widows, and their treatment by society and authorities, including their ability to live on their own and access housing, education, employment, health care, and support services (2021–June 2023)', Immigration and Refugee Board of Canada, 21 June 2023, 20230802110336

The Tribunal accepts that Applicant’s 1 status as a widow, a perceived single woman and head of a women headed household are gendered risk factors. It accepts that in her case, the abuse from her relatives-in-law was an extension of her husband’s abuse which they had always condoned. The Tribunal accepts that with her husband gone, Applicant 1 became a target of her in-laws, who felt emboldened to abuse her and contest her rights to the property ownership and threaten her parental rights. The Tribunal also weighs heavily the sexually degrading messages sent by S, as well as W’s attempted rape and that the brothers-in-law featured most heavily in the many cited examples of the abuse. It also notes the limited action taken by the police in response to Applicant 1’s repeated complaints and that a reason gender based domestic violence is underreported in Sri Lanka is that sociocultural norms mean that family disputes are expected to be handled privately.[8]
[8] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
The Committee on the Elimination of Discrimination Against Women (CEDAW) takes the approach that family violence is rooted in gender-related factors, such as the ideology of men’s entitlement and privilege over women, social norms and gender roles and a drive to prevent, discourage or punish what is considered to be unacceptable female behaviour.[9] The Tribunal accepts this approach and in light of the preceding paragraph going to the particular circumstances of this case, it considers that Applicant 1’s gender-profile, and her status as a widow (particularly a female widow) were critically relevant to her being targeted by the family and dismissed by police. The Tribunal considers that even with dynamic of the property dispute, in Applicant 1’s very particular circumstances, the probability or likelihood of future harm and the perpetrator’s motivations or the reasons for inflicting the harm as well as the likely societal or government response should she seek protection from such harm, is directly tied to her gender and widowed woman status.
[9] CEDAW Committee, ‘General Recommendation No 35 on Gender-Based Violence against Women,
DFAT’s most recent advice from May 2024 is that gender-based violence (GBV) against women is widespread in Sri Lanka, across all communities in the country, and that it is most likely to occur in a domestic setting. DFAT assesses that women generally face a low risk of official discrimination and a moderate risk of GBV, including domestic violence, sexual harassment and sexual assault. In-country sources reported that the incidence of domestic violence had increased in the last three years, coinciding with income losses and economic pressures borne by the economic crisis and COVID-19 pandemic lockdowns (and, with them, growing alcohol and drug abuse). Most cases go unreported due to a fear of retaliation from the perpetrator, shame and sociocultural norms (whereby family disputes are expected to be kept private) discourage women from reporting to the police and seeking support. Sexual harassment and sexual violence (including sexual abuse) toward women is also reported as prevalent, particularly on public transport, and that the prevalence had increased in the last two years.[10] Like domestic violence, sexual cases also go unreported as 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.[11]
[10] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
[11] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
DFAT reports that support services are available for victims of GBV and sexual harassment, although public funding levels decreased with the economy’s collapse. DFAT refers to the availability of government and NGO run socioeconomic support, psychosocial support and counselling services, and legal aid assistance for victims. Women can report harassment and abuse at dedicated women’s desks at public hospitals and police stations. There are 1500 officers from the Children and Women Abuse Bureau of the Sri Lanka Police in 45 stations across the country. Women can also file complaints through a 24-hour help line operated by the National Committee on Women and there is a 24-hour emergency line available in Sinhala, Tamil and English run by one of the most prominent NGOs, Women in Need. Women In Need alerts the police where a woman has reported experiencing violence, provides legal aid and operates several women’s shelters.[12]
[12] DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
However, DFAT also notes that public funding levels for the above mentioned services also decreased with the economy’s collapse. And while in-country sources reported the availability and awareness of support services for women had improved, they also said the Children and Women Abuse Bureau roles are overworked and under-resourced, often resulting in substandard facilities and counselling in regional areas, and that overall, services remained inadequate. DFAT also described the police and judicial responses to domestic violence as lacking sensitivity. Police often did not take complaints seriously, were not adequately trained to collect evidence in cases of sexual assault, and victims could experience a lack of empathy from male officers. Where cases proceeded to court, suspended sentences were common. This is also reflected in reporting from United States’ Department of State (USDOS) whose women’s rights sources reported that police and judiciary responses to rape and domestic violence incidents and cases were inadequate. NGOs reported many police officers did not have sufficient gender-sensitivity training to deal with survivors of sexual violence and women police officers themselves complained of harassment from male colleagues.[13]
[13] United States Department of State (USDOS), '2023 Country Reports on Human Rights Practices - Sri Lanka’, 22 April 2024, 20240423140425
There is work underway to improve on these issues. In March 2023, the Sri Lankan government launched two major initiatives: (1) the National Policy on Gender Equality and Women’s Empowerment which includes a number of bills and proposed legislation to promote equal rights for women and increase their labour force participation, including a Gender Equality Bill; and (2) the National Action Plan on Women, Peace and Security which adds "to the country's legal and policy frameworks to protect and empower women in line with international commitments”. Further initiatives are also being considered.[14]
[14] USDOS, '2023 Country Reports on Human Rights Practices - Sri Lanka’, 22 April 2024, 20240423140425; DFAT, “DFAT Country Information Report Sri Lanka”, 2 May 2024, 20240502102807
However, DFAT’s assessment of the current state of things is that while state protection mechanisms and support services are available, they are inadequate and lack capacity, and women face significant cultural and institutional barriers to state protection.
Considering all the information above, the Tribunal accepts that Applicant’s 1 status as a widow, a perceived single woman and head of a women headed household increases her risk factors for further harm and acts as further barriers for her accessing protection.
On the basis of the country information and research discussed above, rather than characterising this as a personal or private or family mater or dispute, the Tribunal is satisfied that the in-laws have deliberately exploited Applicant’s 1 gendered vulnerability as a widow, a perceived single woman and head of a women headed household. Wide-ranging country information sources refer to iterations of the groups such as ‘women in Sri Lanka’, ‘single women’, ‘widowed women’ ‘female heads of households’ and the Tribunal accepts that they are recognised status groups in Sri Lanka. The Tribunal finds that these are various iterations of particular social groups as that term is defined: and it finds that the shared characteristic is their gender or their gender and marital or domestic status, not a shared fear persecution. The Tribunal finds that the essential and significant reason Applicant 1 faces harm from her late husband’s family is because of her gender and her membership of all the above mentioned iterations of the particular social groups ‘women in Sri Lanka’ or ‘single women’, ‘widowed women’ ‘female heads of households’ in Sri Lanka.
In considering s 5LA and whether effective protection measures would be available to the applicant, the Tribunal notes that there is legislation, and some supports structures in place to protect victim survivors of gender-based violence, and there have been efforts to strengthen these legal and structural supports in recent years. However, the Tribunal gives weight to the credibility and currency of the information cited from the sources above including the USDOS, DFAT and the sources of the Canadian Immigration and Refugee Board which indicate that state protection is inadequate or ineffective in practice. Overall, the Tribunal is not satisfied that effective protection measures are available to Applicant 1.
Having regard to s 5J(3), the Tribunal finds there are no reasonable steps Applicant 1 could take to modify her behaviour to as to avoid a real chance of persecution. She would have to conceal her gender and other immutable characteristics - which as she is personally known to the perpetrators the Tribunal does not consider would be effective even if it were a permissible modification, which it isn’t. The Tribunal also accepts Applicant 1’s submission that her dropping the property claim would be futile as long as she is the children’s guardian as they own half the property – and in any case, it accepts her submission that that would not satisfy the in-laws given they are also aggravated by their long standing distain for her and their pattern of abuse towards her, her re-partnering and the family’s conversion to Christianity. The Tribunal finds that in Applicant 1’s circumstances, there are no reasonable steps she could take to avoid a real chance of persecution. The Tribunal finds that s 5J(3) does not apply.
The Tribunal considers the applicants’ Christian conversion is genuine and that Applicant 1’s re-partnering in Australia and any other actions she or the children have taken here have not been for the purpose of strengthening their claims. The Tribunal is satisfied that there is nothing in the applicant’s conduct in Australia which ought to be disregarded pursuant to s 5J(6).
Taking all of the applicant’s circumstances into account, and the country information and other research, the Tribunal finds that Applicant 1 has a well-founded fear of persecution on the basis of her claims relating to her husband’s family (her in-laws).
FINDINGS IN RELATION TO APPLICANT 2 AND APPLICANT 3
Unlike their mother, the Tribunal does not accept that Applicants 2 and 3 face a real chance of persecution from their father’s family. The Tribunal finds that the in-laws’ focus and ill-intent is directed at Applicant 1, not the children. It acknowledges that the children have been harmed in the past and undoubtedly, they were affected by the treatment towards their mother, but there was no pattern of abuse towards them as there was towards her. While there was once an attempt to take custody of them the applicant has confirmed there have been no attempts by the in-laws to have the children return to Sri Lanka, neither through official or unofficial means, nor any attempts to have contact with them here. Even taking into account the aggravating factors referenced above, and the continued threats towards their mother, the Tribunal is not satisfied that the in-laws have an intent to cause the children harm. The Tribunal is not satisfied they face a real chance of being harmed in Sri Lanka. It is not satisfied they have a well-founded fear of persecution.
For the same reasons, the Tribunal is not satisfied they face a real risk of being significantly harmed either. The Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of Applicants 2 and 3 being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm.
Applicants 2 and 3 do not meet s 36(2)(a) or s 36 (2)(aa) on the basis of the claims regarding their father’s family.
Given the Tribunal’s findings below about the children being members of the same family unit as Applicant 1, no further determination has been made in relation to the children on any other grounds.
Findings on the member of the same family unit (MSFU) criteria and s 36(2)(b)(i)
The Tribunal has determined above that Applicant 1 meets the s 36(2)(a) refugee criteria and she is a person in respect of whom Australia has protection obligations. Applicants 2 and 3 applied for the protection visas at the same time, and in the same application as Applicant 1 and for the following reasons, the Tribunal is satisfied that Applicants 2 and 3 are members of the same family unit as Applicant 1.
The Tribunal has accepted Applicants 2 and 3 are the children of Applicant 1. It accepts too, that they are both under 18 years of age and live with Applicant 1 and that they are her dependants, as defined in reg 1.03. There is credible evidence for this including: the documentary evidence provided including their Sri Lankan passports, birth certificates, Applicant 1’s marriage certificate and some education documents, as well as the biographical narrative and background information as told by Applicant 1, and the oral evidence given by Applicants 2 and 3, and their witnesses.
Accordingly, the Tribunal finds that Applicant 2 and Applicant 3 are the dependent children of Applicant 1 and that they are members of the same family unit as Applicant 1.
The Tribunal finds that Applicant 2 and Applicant 3 satisfy s 36(2)(b)(i) of the Act.
CONCLUSIONS
For the reasons given above the Tribunal is satisfied that the first named applicant (Applicant 1) is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is also satisfied that Applicant 2 and Applicant 3 are the dependent children of Applicant 1 and are members of the same family unit as the first named applicant (Applicant 1) for the purposes of s 36(2)(b)(i). As such, it follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
In relation Applicant 2 and 3, while the Tribunal found that they do not meet s 36(2)(a) or s 36 (2)(aa) in relation to the issue regarding their father’s family, which was the issue on which Applicant 1 was found to have met s 36(2)(a), there are additional claims on which no determination has been made. This includes, for example, the family’s Christian conversion which aside form aggravating the in-laws may also be considered as a separate claim. Given the Tribunal’s finding that Applicant 1 is a refugee on the basis of the in-laws’ issue, and that the children are members of the same family unit as her, the Tribunal has not made findings or any determination on the basis of such additional claims.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date of hearing:  18 October 2024
Representative:  Mr Malintha Prakash De Mel
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.
…

Updating General Recommendation No 19’, UN Doc CEDAW/C/GC/35 (26 July 2017) 7