2305767 (Refugee) - [2023] AATA 3047

2305767 (Refugee) [2023] AATA 3047 (15 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2305767
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Nicole Burns
DATE:15 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 June 2023 at 12:49pm

CATCHWORDS
REFUGEE – Protection Visa –Sri Lanka –sexual orientation– bisexual – fears being killed by his ex-wife’s family –membership of a particular social group – homosexuals in Sri Lanka – effective protection measures are not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
MMM v MIMA (1998) 90 FCR 324

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 April 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old man from [City 1], Western Province, in Sri Lanka. He came to Australia [in] March 2023, holding a Temporary [visa]. He applied for the protection visa on 1 April 2023.
The applicant appeared before the Tribunal on 7 June 2023 to give evidence and present arguments about the issues in his case.
The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT Country Information Report on Sri Lanka was published on 23 December 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee or whether the complementary protection provisions apply. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s nationality is not in issue. He provided a copy of his Sri Lankan passport to the Department and the delegate accepted he is a national of Sri Lanka, as does the Tribunal.
The applicant set out his initial claims in his protection visa application, summarised as follows:
·He came to Australia because of threats to his life from his ex-wife.
·Her family has strong political and underworld connections throughout the country.
·They found out the applicant is bisexual.
·Although the applicant moved to other parts of Sri Lanka and overseas, they had strong connections and he could not escape.
·The applicant received threatening phone calls and was followed from time-to-time.
·If the applicant had made complaints to officials or the government, he may have been caught, due to their political connections, so he did not.
·The applicant believes he may be killed.
Noting in their decision record[1] the lack of significant details in the application form about these matters, and the applicant’s failure to respond to the delegate’s request for further information in writing, the delegate was not satisfied as to his claims and ultimately did not accept them. The applicant was not interviewed by the delegate. His protection visa application was refused on 19 April 2023.
[1] A copy of which the applicant provided to the Tribunal on review.
On review, the applicant provided a typed statement dated 4 June 2023 in which he provides further details about his background and claims, summarised as follows:
·He married his now ex wife on [date] December 2016 due to familial and societal pressure, even though he was attracted to men and not attracted to her. At the time, he kept his sexual orientation secret.
·During his five-year marriage he worked as a [Occupation 1], spending a lot of time [away from home]. He had relationships with other male co-workers. His wife was suspicious, and her family forced him to terminate his employment contract as a [Occupation 1] and threatened him.
·The applicant started a [business] in his hometown; he borrowed money from money lenders but could not repay them and they threatened him and on occasion had physical fights with him. His wife’s family refused to assist him.
·He started having a sexual relationship with a male friend in his hometown. In September 2021, his wife found out after discovering intimate pictures on his mobile phone. They argued and he was attacked violently by her family members; someone even tried to attack him using a long machete.
·The applicant escaped and stayed at a friend’s house for a week. He found out many of his ex-wife’s associates visited his parents and family members houses looking for him.
·He did not go to the police as his ex-wife’s family have political connections, so making a complaint seemed pointless.
·His ex-wife’s family have continuously visited his family house and threatened to take revenge on him for ruining his ex-wife’s life. His family members were followed, and, on many occasions, people threw stones at their house and shouted threats.
·For these reasons the applicant applied for protection after arriving in Australia on [date] March 2023.
·He fears being killed by his ex-wife’s family if he must return to Sri Lanka.
·He is depressed and suffers from hallucinations and nightmares.
In his oral evidence to the Tribunal the applicant spoke about his background, why he left Sri Lanka, and his fears if he has to return there, summarised as follows. He said he does not want to return to Sri Lanka because he is afraid of his ex-wife’s relatives who have threatened him in the past, blaming him for his marriage break down (and ruining his ex-wife’s life). He is also afraid he will not be able to live freely as a homosexual in Sri Lanka.
The applicant said he knew his now ex-wife, [Ms A] (who is [number] years younger than him), as she lived in the same village he lived in, that is, [Town 1] town in [City 1]. He connected with her via [social media] whilst he was [working], and they were married in December 2016 in Sri Lanka. The arrangements were made by their respective parents. The applicant told the Tribunal he had never had a relationship with a woman before and was not attracted to women, or [Ms A], but felt familial pressure to marry. He noted at the time his siblings – two brothers and a sister– were married.
After marriage he lived with [Ms A] and her mother in their house in [Town 1]. [Ms A]’s father worked in [Country 1] at the time.
The applicant said he and [Ms A] separated around four years later, after she discovered photographs of a male co-worker whom he was having a relationship with, on his mobile phone, sometime in 2019. Not long after, the applicant [left Sri Lanka], and he and [Ms A] kept in touch. However, they fought often about this matter and eventually broke up in around April 2019. When he returned to Sri Lanka in late 2019, he moved back in with his parents, also in [Town 1]. He then worked for his brother’s [business].
The applicant said [Ms A] initiated divorce in early 2021, which was finalised around a year later. At hearing he produced a copy of his divorce certificate contained on his mobile phone. The interpreter confirmed the certificate states that the divorce was granted on 24 January 2022 by a district judge, at [City 1] district court.[2] The copy of the certificate was issued on 4 April 2023, and the marriage date recorded is [date] December 2016.
[2] Case file [number].
The applicant said he received threatening phone calls from some of his wife’s relatives after their divorce, mostly from her paternal uncle, [name], particularly when he was drunk. Her relatives would also scold him sometimes when they met on the streets in their town.
Then, in early March this year (around 10 days before he came to Australia), the applicant’s then boyfriend, [Mr B], rang him and warned him that he had heard several of [Ms A]’s relatives (and/or associates) were planning to attack him at his home. He fled, going first to the [City 1] police (who did nothing) and then to one of [Mr B]’s residences in [City 1] before they drove to Trincomalee together in a hired vehicle. [Mr B] returned to [Town 1] and the applicant stayed in Trincomalee for 10 days before leaving Sri Lanka.
His parents told him subsequently that several men had come to their home, some armed with swords, and thrown stones at their house and shouted obscenities, blaming the applicant for deceiving [Ms A], and telling him to never return to the village.
The applicant thinks the [City 1] police did not take any action because [Ms A]’s mother is related to a member of parliament, [name].[3]
[3] [Source deleted]
The applicant said he is afraid of [Ms A]’s relatives on return to Sri Lanka, noting they have threatened him in the past and want revenge. There is also no place for homosexuals in Sri Lanka, who are not recognised, seen as a joke and/or humiliated. Society will not accept homosexuality, which is still illegal.
The applicant explained that he began a relationship with [Mr B] after his divorce, who he met whilst working in his brother’s [business] in [Town 1]. No one knew about their relationship. [Mr B] drove him to Trincomalee when he left the village, and then to the airport around 10 days later. They kept in touch via [social media] once the applicant was in Australia, up until around a month ago; the applicant is not sure why he is now unreachable.
The applicant said prior to [Mr B] he had relationships with men [from work], which is how he discovered he was attracted to men. He has not told his parents or any of his siblings [about] his sexuality or the reasons his marriage broke down. He thinks his parents might suspect something, particularly given the accusations made by [Ms A]’s relatives when they visited their home and shouted abuse, but he has not been able to speak to them openly about it, as he is afraid they would no longer love him if he does.
The applicant clarified some inaccuracies in his written statement provided to the Tribunal at hearing. This included that he did go to the police in [City 1] when he heard his house was about to be attacked by a mob, but not after he received the earlier threats, believing that would be pointless (as stated in his written statement). He also clarified that he was not actually attacked in that incident, as he was able to flee before they arrived. In addition, he explained that he was referring to this incident when he stated that his family members were followed in his statement.
Additionally, at hearing the applicant clarified that his wife’s family did not force him to terminate his employment contract as a [Occupation 1] as indicated in his written statement; rather, he returned home to Sri Lanka after his contract had ended.
The applicant also clarified that he did not borrow money for a [business] – he worked for his brother’s business. He told the Tribunal that in the past he had lent money to several small businesses in his home area as an investment. However, due to COVID-19 the businesses closed.
Findings about the applicant’s sexuality and related claims
As noted, the delegate did not accept the applicant’s core protection claims because of a lack of detail provided. In his oral and written evidence to the Tribunal, the applicant has now provided more detail and context about his claims. The Tribunal discussed in detail the inception, development and break down of his marriage, and his sexuality claims, including relationships with men (and related problems and extant fears), over the course of the hearing. The Tribunal found him a credible witness at hearing whose oral evidence was detailed, coherent and spontaneous. There was some confusion about dates, and inconsistencies in some respects between his written statement and oral evidence (as noted). For example, at hearing he said his ex-wife discovered the photographs on his phone in 2019, however, in his statement he states this occurred in September 2021. The applicant clarified at hearing that it was earlier than September 2021 because they had separated by then. He added that he may have some dates mixed up, and that his English is not strong. There were other clarifications he made about aspects of his claims in his written statement, as set out above.
Noting the applicant’s English is limited, and he is unrepresented (before the Tribunal), the Tribunal is willing to accept inconsistencies between his written statement and oral evidence at hearing (with the aid of an interpreter) can be attributed to this, not an indication that he has fabricated and/or embellished his claims. Overall, the Tribunal found him reasonably consistent and coherent, and his claims plausible, particularly taking into account his limited English and being unrepresented.
Accordingly, based on his oral and written evidence, the Tribunal accepts the applicant’s claims about his background, including work history and family composition. That is, it accepts he comes from [Town 1] town, [City 1], where his parents continue to live, and that he worked as a [Occupation 1] from 2007 and [as an Occupation 2] from 2010. It accepts he mostly held six-month contracts and would return to live with his parents at the end of his contract, before a new one started, and then with his wife and her parents after his marriage in late 2016.
The Tribunal accepts the applicant was married on [date] December 2016 and divorced on 24 January 2022 (having separated earlier) based on a copy of his divorce certificate sighted at hearing. It accepts that his marriage broke down sometime after [Ms A] discovered photographs on his phone of a male co-worker he was sleeping with. It accepts he received threats from some of her relatives over the phone and in person following this, and that some people (possibly [Ms A]’s relatives and/or associates) came to his parents’ home in early March this year, threw stones at the house, and shouted disparaging comments about him, including warning him not to return to the town. The Tribunal also accepts he reported this incident to the [City 1] police, but they failed to act, possibly due to [Ms A]’s family’s political connections, although this remains unclear.
Additionally, the Tribunal accepts the applicant has never had a relationship with a woman (other than his wife), that he married [Ms A] due to familial pressure, and that he has had relationships with [co-workers] in the context of his work. It also accepts he had a relationship with a man from his home village, [Mr B], from some time after his divorce until he left Sri Lanka but kept it secret.
The Tribunal also accepts the applicant has not disclosed this relationship or his sexual preferences to family or anyone else in Sri Lanka, out of fear of losing them, and being humiliated and isolated. This accords with country information that due to societal discrimination, threats and harassment, and deeply ingrained anti-LGBTI sentiment in Sri Lankan culture and society, many LGBTI individuals seek to conceal their sexual orientation.[4]
[4] DFAT Country Information Report: Sri Lanka, 23 December 2021, at 3.110.
Further, the Tribunal accepts the applicant would wish to live as a homosexual in Sri Lanka, if not for fear of persecution in doing so.
Are the applicant’s fears of persecution in Sri Lanka well founded?
Given these findings about the applicant’s (same sex) sexual orientation and past experiences in Sri Lanka (and elsewhere), the Tribunal has gone on to consider if he faces a well-founded fear of persecution on return from [Ms A]’s relatives due to their marriage breakdown and his homosexuality, as well as from community members and the authorities more broadly, based on his homosexuality.
The Tribunal is satisfied the applicant identifies as homosexual and that ‘homosexuals in Sri Lanka’ constitute a particular social group for the purposes of s 5L of the Act, because:
·there is a characteristic shared by each member of the group including the applicant, which is their sexuality (ss 5L(a) and (b));
·the characteristic distinguishes the group from society (s 5L(c)(iii));[5] and
·the characteristic is not a fear of persecution (s 5L(d)).
[5] This section codifies the decision in Applicant S v MIMA (2004) 217 CLR 387 that a particular social group be distinguished from the society at large.

Australian courts have consistently found that ‘particular social group’ should be interpreted broadly[6] and the courts have accepted that homosexuals can comprise a social group. For example, in MMM v MIMA (1998) 90 FCR 324 at 330, Madgwick J stated that ‘[o]rdinarily, homosexuals would constitute a social group...’. Additionally in Applicant A v MIEA (1997) 190 CLR 225 at 265, McHugh J states: ‘If the homosexual members of a particular society are perceived in that society to have characteristics or attributes that unite them as a group and distinguish them from society as a whole, they will qualify for refugee status’. Other cases based on homosexuality include F v MIMA [1999] FCA 947, Shah v MIMA [2000] FCA 489, Applicant LSLS v MIMA [2000] FCA 211, MIMA v B (2000) 105 FCR 304, and MIMA v Gui [1999] FCA 1496.
[6] Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293.
The Tribunal has gone on to consider if there is a real chance the applicant would be persecuted on return to Sri Lanka by the authorities and/or non-state actors (such as relatives or community members) for belonging to this particular social group. In doing so, it has had regard to the following independent country information about the situation for LGBTI persons in Sri Lanka.
Country information indicates that in Sri Lanka, freedom of sexual orientation is not protected under the Constitution, and same sex sexual activity is a criminal offence, even when consensual, under ss 365 and 365 (a) of the Penal Code, attracting up to 10 years’ prison and a fine.[7] Although prosecutions are rare, they do happen. Human Rights Watch reports several prosecutions between 2017 and 2020, which included forced anal and vaginal inspections to ‘prove’ gay or lesbian sexual conduct.[8] In December 2021, DFAT reported of a then recent conviction and jailing of two men, one of them a police officer, for same-sex sexual activity, although the punishment was reduced to a fine upon appeal.[9]
[7] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.107, 3.108.
[8] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.108; 'Country Reports on Human Rights Practices for 2021 Sri Lanka', United States Department of State, 12 April 2022, pp.43-44.
[9] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.108.
Additionally, there are reports about police using these provisions in the Penal Code as well as loitering provisions in the Vagrants Ordinance (1842) to threaten, harass and extort money and sexual favours, and arbitrarily detain LGBTI individuals.[10]
[10] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.108; and 'Sri Lanka: ensuring equality and non-discrimination for lesbian, gay, bisexuals and transgender people', International Commission of Jurists, 1 April 2021.
DFAT refers to the results of a 2017 mapping study by Equal Ground, an LGBTI advocacy group, that 46.7 per cent of LGBTI people in Sri Lanka (willing to participate in the study) had experienced police harassment. They note further that LGBTI victims of abuse and harassment, including by the police, are generally unwilling to file complaints due to safety concerns and a reluctance to bring attention to their sexual orientation, meaning incidents go largely unreported.[11]
[11] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.109.
Further, there is no legislation to prohibit discrimination or hate crimes based on sexual orientation and sexual identity, and same sex marriage is not permitted.[12]
[12] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.110; 'Country Reports on Human Rights Practices for 2021 Sri Lanka', United States Department of State, 12 April 2022, p.43.
There are indications the Sri Lankan government intends to decriminalise same sex relationships. Specifically, in August 2022, a Private Members Bill to amend ss 365 and 365A of the Penal Code was introduced to parliament,[13] and President Wickremesinghe indicated he would not oppose the bill.[14] In February 2023 the Foreign Affairs Minister Ali Sabry said the government would support the decriminalisation of same sex relationships (although would not legalise same sex marriages),[15] and that same month Premanath Dolawatte (the MP and lawyer who introduced the bill to parliament) indicated the bill was currently being examined by the Attorney General’s Department to ensure it was consistent with the Constitution.[16]
[13] 'Sri Lanka - Submission to the UN Human Rights Committee 137th Session, 27 February - 24 March 2023', Amnesty International, 31 January 2023, p.7; 'Public praise politicians’ recognition of LGBT community', The Morning, 5 September 2022; 'New laws proposed to protect LGBTQI+ rights, but LGBTQI+ community suspicious', The Morning, 25 August 2022; 'Dolawaththa to present private members bill to amend penal code to protect LGBTQI+ community', Daily FT, 24 August 2022.
[14] 'Sri Lanka’s president says government will not oppose bill to decriminalize homosexuality', Bryan Ke, NextShark, Yahoo News, 14 September 2022; 'Sri Lanka’s president says his government won’t oppose decriminalisation of homosexuality', Gareth Johnson, Fridae, 13 September 2022; 'Government will not oppose Bill on LGBTQ+ rights', Colombo Gazette, 11 September 2022.
[15] 'Homosexuality to be decriminalised', Mirudhula Thambiah, The Morning, 10 February 2023; 'Sri Lanka government announces support for decriminalization bill', Michael K. Lavers, Washington Blade, 10 February 2023.
[16] 'Homosexuality to be decriminalised', Mirudhula Thambiah, The Morning, 10 February 2023.
In early May 2023 Sri Lanka’s Supreme Court ruled the bill was not unconstitutional, although reports indicate that activists will still have to lobby support from the 225 parliamentarians to push the proposed legislation through parliament.[17]
[17] ‘Sri Lanka Supreme Court clears path for decriminalisation of homosexuality’, Uditha Jayasinghe, Reuters, May 9, 2023.
In terms of societal and other discrimination and threats members of the LGBTI community face, DFAT notes that according to local sources LGBTI individuals are widely seen as ‘sexual deviants’ and routinely experience discrimination and bullying in the workplace and the education and health care systems. Local sources told DFAT that openly gay couples face obstacles to securing housing and accommodation. As a result, many LGB individuals seek to conceal their sexual orientation.[18]
[18] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.110.
Further, DFAT states that:
According to local sources, the LGBTI community faces threats, harassment and forced heterosexual marriage from family and other members of the community. Some middle and upper class, educated and urban Sri Lankans are open about their sexuality within their family and community circles; however, risks are higher for lesbian and bisexual rural women due to more traditional familial expectations and values. DFAT considers reports of violence in the home and public spaces to be credible, and many LGBTI individuals – especially Muslims – hide their identity to avoid harassment. Local sources told DFAT that some families pressure LGBTI individuals to seek treatment to ‘cure’ their same-sex sexual orientation at dedicated profit-making centres or through witchcraft. Local sources told DFAT that hostility toward LGBTI individuals was ‘across the board’ and was not confined to a particular ethnic group or geographic area. Some LGBTI individuals have chosen to relocate to larger centres, especially Colombo, which have larger LGBTI communities and support networks.
…
Hate speech against the LGBTI community is common on social media, including against those who advocate for LGBTI rights. In 2016, critics, notably Sinha Le, published threatening comments on social media relating to the 12th Annual Gay Pride Festival and prevented Equal Ground from holding a promotional event at the Good Market in Colombo. Organisers cancelled some public events; police provided protection for participants at others. According to local sources, police protection of LGBTI individuals at public events such as LGBTI marches has increased since 2015. One source identified conservative religious groups as posing particular threats to the LGBTI community.
LGBTI individuals have few support mechanisms. Only a small number of local NGOs support LGBTI rights, through advocacy or provision of services. The most prominent of these, Equal Ground, provides legal aid and advice to LGBTI individuals and mental health counselling. Equal Ground has operated a counselling hotline for LGBTI individuals since 2005, available in Sinhala, Tamil and English — the only such service in Sri Lanka. Support groups like Equal Ground are concentrated in urban areas.
According to local sources, anti-LGBTI sentiment is deeply ingrained in Sri Lankan culture and society, particularly in rural areas. The majority of Sri Lankans hold conservative views about sexual orientation and gender identity, and many prioritise collective values over individual rights. DFAT assesses that LGBTI individuals in Sri Lanka face a moderate risk of official discrimination and a moderate level of societal discrimination on a day-to-day basis. The level and frequency of discrimination differs, depending on the socioeconomic status, religion and geographic location of the individual. DFAT also assesses that transgender individuals face a high level of official and societal discrimination compared to other members of the community, and a moderate risk of violence.[19]
[19] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.112; and 3.114 - 3.116.
According to results from a 2021 survey by Social Scientists’ Association, in Sri Lanka, people with positive attitudes and perceptions of LGBTQI+ persons are more likely to be young, urban, tertiary-educated, and follow Buddhism or Hinduism. People with negative attitudes tend to be older, living in rural communities, have secondary levels of education and follow Islam or Christianity.[20] The Tribunal notes (and accepts) the applicant and his family members are Catholic, as are his ex-wife and her family.
[20] 'Knowledge, attitudes, and perceptions survey report: Sri Lankan society's views about sexuality and LGBT people's experiences in Sri Lanka', Pradeep Peiris, Social Scientists' Association, 2021, p.vii.
Based on such country information about the hostility LGBTI individuals in Sri Lanka face, including from family members, which at times can be violent, the Tribunal accepts the applicant, who has been threatened by [Ms A]’s relatives in the past, and escaped an attempted attack recently, faces a real chance of serious harm from [Ms A]’s relatives on return to Sri Lanka based on his membership of the particular social group of homosexuals in Sri Lanka.
The Tribunal is satisfied that the applicant is a member of the particular social group of homosexuals in Sri Lanka, and that the persecution feared by the applicant is for reasons of his membership of this particular social group: s 5J(4) of the Act. Country information including that referenced above indicates anti-LGBTI sentiment is ingrained in Sri Lankan society, and as such the Tribunal considers any personal revenge (by [Ms A]’s relatives) is motivated by and compelled by society’s hostility to homosexuals. Accordingly, the Tribunal is satisfied an essential and significant reason for the harm feared is the applicant’s membership of the particular social group of homosexuals in Sri Lanka.
For these reasons, the Tribunal accepts that should the applicant return to his home area in [City 1], Sri Lanka, now or in the foreseeable future, there is a real chance he will face serious harm from [Ms A]’s relatives and/or community members as required by s 5J(4)(b) of the Act, in that it involves threats to his life or liberty or significant physical harassment or ill-treatment. The Tribunal considers that the applicant’s membership of the particular social group of homosexuals in Sri Lanka is the essential and significant reason for the persecution that the applicant fears, as required by s 5J(4)(a) of the Act. Also, the Tribunal finds that the persecution he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c) of the Act, in that it is deliberate or intentional and involves selective harassment of him for reason of his membership of that particular social group, being a group that is largely not tolerated, faces harassments and threats, is not protected under the law, and can face punishment under the Penal Code. Whilst moves are afoot to decriminalise homosexuality in Sri Lanka, as noted, this has not been finalised and is not necessarily secured, particularly considering strong anti-LGBTI sentiment there.
For all the above reasons, the Tribunal finds the applicant faces a real chance of serious harm (for the purposes of s 5J(5)) if returned to Sri Lanka, now or in the foreseeable future, from his ex-wife’s relatives and/or community members. It follows that the Tribunal accepts the applicant meets the requirements of s 5J(1)(b).
The Tribunal has gone on to consider if there are effective protection measures available to the applicant from the persecution he fears from non-state actors (primarily, although not exclusively) in Sri Lanka. At hearing the applicant claimed he only went to the police once in March this year, after being advised a mob was approaching his house to attack him; however, they did not act. He felt it was futile to otherwise try to get their help as [Ms A]’s family has political connections: specifically, her mother is related to an MP from their area, [name]. The Tribunal accepts his claims in this respect although notes the reasons why the police failed to act remains unclear.
As noted, country information referred to above indicates that: same sex activity is a criminal offence in Sri Lanka, attracting prison and fines; whilst rare, prosecutions occur; there are reports of police harassing, threatening, extorting and arbitrarily detaining LGBTI individuals; and many incidents go unreported due to safety concerns and fear of being exposed. Additionally, there is no legislation protecting discrimination or hate crimes based on sexual orientation or identity. Based on such country information, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to be provided to the applicant in Sri Lanka by the state, a party or an organisation. The Tribunal finds that the applicant would not be able to access effective protection if returned to Sri Lanka for the purposes of s 5LA(2).
The Tribunal has considered if the real chance of persecution relates to all areas of Sri Lanka as per s 5J(1)(c) of the Act. At hearing the applicant said there is nowhere in Sri Lanka he could live openly as a homosexual, and that as [Ms A]’s relatives are politically connected they could find him anywhere. The Tribunal accepts his evidence in this regard. It also notes that local sources had advised DFAT that ‘hostility toward LGBTI individuals was ‘across the board’ and was not confined to a particular ethnic group or geographic area.’[21] For these reasons, the Tribunal is satisfied the real chance of persecution in the applicant’s case relates to all areas of Sri Lanka for the purposes of s 5J(1)(c).
[21] DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.112.
The Tribunal also notes that requiring the applicant to modify his behaviour would require him to alter his sexual orientation or conceal his true sexual orientation, which is impermissible pursuant to s 5J(3)(c)(vi) of the Act.
Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well‑founded fear of persecution from his ex-wife’s family and the community based on his membership of the particular social group of homosexuals in Sri Lanka if he returns to Sri Lanka, now or in the reasonably foreseeable future. The Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s 5J.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.
Given this finding, it is unnecessary for the Tribunal to consider whether the applicant faces a well-founded fear of persecution for the other reasons advanced or that arise in this case.
In considering whether he comes within the definition of a refugee, contained in s 5H of the Act, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1) of the Act. There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) of the Act apply to the applicant.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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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