2311207 (Refugee)

[2023] AATA 4591

2311207 (Refugee) [2023] AATA 4591 (14 November 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Ms Shamili Kugathas

CASE NUMBER:  2311207

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:  Nicole Burns

DATE:  14 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies

s 36(2)(aa) of the Migration Act 1958 (Cth).

Statement made on 14 November 2023 at 2:16pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – complementary protection – divorced Tamil woman with no family support – sexually assaulted, harassed and threatened by a local shop owner – cruel or inhuman treatment or punishment – degrading treatment or punishment – state protection – internal relocation – lack of family support and networks – psychologically vulnerable – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 May 2023.

3. The applicant appeared before the Tribunal on 13 September 2023 to give evidence and present arguments about the issues in her case. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review. The representative participated in the hearing via video link from NSW, where she resides.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

2. The most recent DFAT country information report on Sri Lanka was published on 23 December 2021.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicant is a [age]-year-old divorced woman from [City 1], eastern Sri Lanka. She is Tamil and Hindu. She arrived in Australia at Melbourne Airport [in] May 2023 and was detained shortly thereafter. She claimed her Sri Lankan passport was taken from her by the agent that helped her leave Sri Lanka. The applicant provided to the Department evidence of her identity and nationality including a copy of her Sri Lankan birth certificate, National Identity Card (NIC) and marriage certificate. The delegate accepted she was a Sri Lankan national, as does the Tribunal on review.

2. In her protection visa application the applicant claims she left Sri Lanka because (in summary):

   ·Her father died in 2019 and she separated from her husband in approximately July 2021. Divorce proceedings are still occurring in court.

   ·She does not have any male siblings and her older sister is married and lives with her husband in [City 2].

   ·She was subject to ostracism and isolation by the Tamil community as a divorcee, which made her more vulnerable.

   ·She lived alone with her mother in [City 1] after her separation.

   ·Due to her status as a single divorced Tamil woman without male protection she has been subject to sexual harassment and abuse by ‘an influential male’ who has links to the ruling party in Sri Lanka.

   ·Unable to tolerate the sexual harassment and abuse any longer the applicant feared being subject to forced marriage or rape and made arrangements through an agent to depart Sri Lanka.

3. The applicant provided a typed statement (undated) to the Department. In it she reiterates some of the claims made in her protection visa application, expands on aspects of her claims, and provides some additional information, as follows (in summary):

   ·She married her ex-husband by eloping with him [in] September 2014 as it was a love marriage. She moved in with his family. Her parents and sister did not speak to her.

   ·She was subject to physical abuse by her former husband and they often fought. They decided to separate in around December 2021 and file for divorce.

·The applicant visited her aunt in India until around March 2022 and during that time reconnected with her mother who she lived with in [City 1] on return to Sri Lanka.

·As a young woman living away from her husband she was ostracised and badmouthed by the community, who blamed her for her failed marriage. There were rumours that she had been unfaithful.

·In around June 2022 a person called [Mr A] whose brother was a coordinator/strong supporter of the Sri Lanka Peoples’ Freedom Alliance (SLFP) began following her; he approached her one day asking her to marry him; and sexually groped her when she told him she was not interested. He would call her a whore in public and made videos doing so which he circulated via social media.

·Everyone in the community decided she was a prostitute, and that was why she and her husband had separated.

·She received calls from random numbers inviting her to have sex with them for money and was also sent explicit sex videos. Someone also photoshopped her image on to pornographic videos and photos and sent them to her. She was then blackmailed and threatened if she did not have sex as requested they would circulate the videos and photographs on the internet and social media.

·The applicant states her mother blamed her.

·[Mr A] visited her house and call her ‘Vesai’ (whore) in public and threw stones at her house. He also followed her on a motorbike, and visited her home with police officers, to show he had contacts and that there was no point filing complaints against him.

·She was subject to sexual harassment by [Mr A] on numerous occasions; he groped her in public, tried to kiss her, and offered her money to sleep with him.

·Because she was stopped by random males she did not feel safe leaving her house and did not walk around outside. [Mr A] came to her house asking her to marry him: when she declined he threatened to rape her so she would have no choice but to marry him.

·Her mother pressured her to marry [Mr A] to solve the problem.

·Fearful of being raped by [Mr A] or other men, the applicant arranged through an agent to leave Sri Lanka, [in] May 2023 from Colombo Airport to [another country] and from there to Melbourne.

·After her arrival in Australia [Mr A] went to her house looking for her and became extremely angry when her mother said she is in Australia.

1. Additionally the applicant states that she has heard stories of police officers and/or Criminal Investigation Department (CID) members in Sri Lanka assaulting her friends. She feared seeking help from the police, especially as [Mr A] had friends in the police. She states she fears harm in Sri Lanka on account of her Tamil ethnicity originating from the Northern

Province1 and based on her membership of several particular social groups, variously described.2

1. Material the applicant provided to the Department in support of her protection visa application included:

   ·A translated copy of her father’s death certificate showing he died [in] September 2019 from a heart attack.

   ·A copy of the applicant’s divorce orders in Tamil and English, issued by the District Court of [City 1] in a judgment dated [in] May 2023.

   ·A copy of registration of her [business].

2. According to information contained in the delegate’s Decision Record3 the delegate had requested the applicant provide evidence of the explicit videos in question. In a submission from her representative dated 4 July 2023 it states that the applicant instructs all links have been taken down and she no longer has access to any of the videos.

3. The delegate accepted the applicant had been verbally harassed by a man in [City 1] for around a year prior to coming to Australia but did not accept he circulated compromising videos about the applicant’s character, that he physically assaulted her or that she was subject to community ostracism or bullying as a result due to credibility concerns with aspects of her evidence in this regard. The delegate was not satisfied the applicant faced a real chance of persecution from this man, (or on other grounds such as being a female head of household) in all areas of Sri Lanka, finding that she could move to [City 2] where her sister and brother-in-law live.

4. As well, the delegate accepted the applicant would be returning to Sri Lanka as a single separated/divorced Tamil woman but found based on country information about the situation for people with such a profile, she would not face a real chance of serious harm from anyone on this basis, or from the authorities as a failed asylum seeker. Her visa application was refused on 25 July 2023.

5. On review the representative provided to the Tribunal a statement of claims from the applicant dated 7 September 2023 in which she states that she relies on her previous statement and submission. In it she also addresses some specific concerns raised by the delegate including the delegate’s assumption she could live with her sister on return, who had supported her to come to Australia, among other things. On this point the applicant states that her sister’s husband does not permit her sister to speak with her, afraid if she associates with the applicant in any way she will also be sexually harassed and photoshopped videos of her would be circulated.

6. The following documents were also provided to the Tribunal:

1 The Tribunal notes the applicant originates from the east, not a northern province. The mistake may be attributable to the representative.

2 A single, separated Tamil woman; a female head of the household; a victim of sexual assault and harassment by males; a victim of ostracism and bullying from the community; a failed asylum seeker returning to Sri Lanka from a Western country after leaving Sri Lanka illegally; and a Tamil woman suffering from mental health vulnerabilities as a consequence of the experiences she was subject to by the Sri Lankan authorities.

3 The applicant provided a copy to the Tribunal on review.

·Copies of translated letters from three of the applicant’s previous neighbours from [City 1]4 (where she lived with her mother prior to departing Sri Lanka) variously describing witnessing strangers coming to her house and harassing her (in one letter from August 2022 and the other in September 2022), including a person called [Mr A].

·A copy of a letter from [a] counsellor, [Organisation 1] dated

[in] September 2023 in respect of the applicant. In it the counsellor states, among other things, that the applicant was referred to [Organisation 1] for trauma counselling on 23 June 2023 and had undertaken six sessions with a Tamil interpreter. She provides some background about the applicant as self-reported by her, and notes that the applicant impresses as suffering symptoms of depression and anxiety.

1. At hearing the applicant gave oral evidence about her background, reasons for leaving Sri Lanka, and fears if she has to return there, summarised as follows.

2. She told the Tribunal the main reason she left Sri Lanka in May 2023 was due to persistent harassment from a local [shop owner] in [City 1] town called [Mr A] over the previous year. The applicant said after she rejected [Mr A]’s sexual advances (and offer of marriage) he became upset and attempted to tarnish her reputation by sharing with his friends (and others) a video of him attempting to kiss her on the streets one day and calling her bad names (which he purportedly edited), as well as sexually explicit videos and photographs with the applicant’s face doctored on the subjects. This resulted in the applicant being approached on the streets and receiving phone calls by men (including, on occasion, police) soliciting her for sex. The applicant said before [Mr A] circulated the videos he threatened to do so if she did not have sex with him. However he had already sent them and spread rumours that she sleeps with men for money.

3. The applicant said [Mr A] continued to follow her, sexually harass her, hit her on occasion, and attempt to sexually assault her on the streets and when he visited her home many times up until she left Sri Lanka. Sometimes he came to her home (where she lived with her mother from March 2022) with friends (and sometimes with police) and would throw stones, use bad language defaming her character, and leave graffiti on the walls of their house. Her neighbours shunned her and stopped inviting her to social events.

4. The applicant said although she changed her mobile phone number – around 10 to 15 times – during this period somehow men would still get her number and the calls soliciting her for sex persisted. Towards the end she stopped going outside. The last contact she had with [Mr A] was around three days prior to her departure. Her sister told her he visited their mother after she left, saying if she returns to Sri Lanka he will kill her.

5. The applicant explained that [Mr A] started harassing her not long after her divorce from her ex-husband, in around mid-2022. She had separated from her husband (whom she had married in 2014) in around December 2021, stayed with her friend, then with her aunt in India from December 2021 to March 2022. Whilst in India the applicant said she reconciled with her mother (and sister) who had not spoken to her since her marriage given she had eloped and her parents did not think her husband was suitable (as he was of a lower caste). Also they considered she was too young to marry.

6. The applicant said her ex-husband was very suspicious, used to beat her for no reason, use obscene words, call her a prostitute and bad mouth her to his friends and parents. Whenever they fought he would tell her to leave the house (where she lived with him and his parents). He spread rumours that she had eloped or gone to India with another man (told

4 One is undated and the others dated 28 August 2023 and 30 August 2023.

by some of her friends when she returned from India). Also that he was the one who instigated their divorce because she was in a relationship with someone else, which was untrue.

1. The applicant said during the time she experienced harassment and threats from [Mr A] her mother suggested she marry him. She has not spoken to her since. She remains in contact with her sister – who lives with her husband in [City 2] and both are government employees – on occasion since she came to Australia.

2. As such the applicant said she fears several people on return to Sri Lanka including her ex- husband, [Mr A], men in general, and members of the community. She said she is fearful [Mr A] will harm her on return, who she has shamed by rejecting his advances and harassed her as a result in the past, particularly without family support.

3. After the hearing the Tribunal received a written submission dated 20 September 2023 from the representative in which she reiterated the applicant’s claims, and addressed some concerns raised at hearing, discussed where relevant below.

Findings about the applicant’s past experiences, profile, and future fears

1. Having regard to the evidence before it, including the applicant’s oral and written evidence and the submissions provided to the Department and Tribunal, the Tribunal makes the following findings with respect to the applicant’s protection claims and whether her fears of persecution on return to Sri Lanka are well founded.

   Fear of harm from [Mr A]

2. The Tribunal has considered the applicant’s claims to have experienced sexual assault, attempted sexual assault, harassment and threats from [Mr A] in the year preceding her departure from Sri Lanka in May 2023 due to her rejection of his sexual advances and wish to marry her. This included circulating videos and photographs containing images of the applicant (real and doctored), and defamatory comments about her character.

3. The Tribunal accepts the applicant separated from her husband in around December 2021 and that she had experienced abuse and violence from him during her seven-year marriage. It accepts after her separation the applicant spent a few months with her aunt in India and during that time reconciled with her mother and sister, who had not been happy with her marriage. It accepts the applicant lived with her mother after returning to Sri Lanka from India in [City 1] from March 2022 until she left Sri Lanka in May 2023. It accepts during this time divorce proceedings were afoot and it was known among the community that her marriage had failed. Also that the applicant’s ex-husband spread rumours about her having affairs amongst the community, blaming her for the marriage breakdown.

1. The Tribunal accepts in this context the applicant was approached by a local shop owner, [Mr A], to have a relationship, and later he asked her to marry him. The Tribunal accepts [Mr A] was unhappy when the applicant rejected his advances and offer of marriage, and continued to harass and threaten her, including sexually groping her in public at times, and filming some of these encounters (which he later circulated to friends and others via social media and WhatsApp groups). It accepts his harassment took many forms including by following her and approaching her directly on the street and by visiting her house, and indirectly through spreading rumours about her and circulating videos defaming her character. The Tribunal accepts this resulted in the applicant being approached on the streets and receiving phone calls from random men soliciting her for sex. As noted, letters from several neighbours have been provided to the Tribunal attesting as such, and the Tribunal notes the applicant’s evidence in this regard has been generally consistent.

1. Country information indicates that sexual harassment of women is common in Sri Lanka, and rarely reported.5

2. The Tribunal does not accept the harassment from [Mr A] and related (unwanted) attention from other men in [City 1] was the cause of her separation from her husband as claimed in her statutory declaration provided to the Department. That is because her evidence is that she had already separated from her husband in late 2021, at least six months before she was first approached by [Mr A] in mid-2022. Also the applicant’s evidence was that she separated from her husband due to his poor treatment of her, including being abusive, controlling and at times violent.

3. The Tribunal notes it found the applicant’s oral evidence about the video and photographic material she was allegedly sent and which was circulated, including actual images of herself (rejecting [Mr A]’s advances on the street, for example) and photoshopped images of herself on naked and/or pornographic images confused and somewhat unclear at times. For example about what kind of material was sent to whom, and when, or specifically how it was circulated.

4. Also some inconsistencies exist between the applicant’s evidence to the delegate at interview about these matters (as set out in the delegate’s Decision Record) and at hearing. For example at the interview with the delegate the applicant said she had not seen the video of herself [Mr A] had circulated, yet at hearing she told the Tribunal he had sent her a copy. Also, at interview with the delegate the applicant said she went to [Mr A]’s shop after she discovered he had put the video on social media, and he agreed to take it down after she shouted at him. Yet at hearing the applicant said she told her friend to tell [Mr A] to delete the video, but he did not.

5. Nonetheless, the Tribunal notes it can be difficult to know exactly the source and trajectory of images, particularly once uploaded to social media, which may explain to some extent the applicant’s at times confused evidence in this regard: that is because she herself is unclear. The applicant has consistently claimed [Mr A] shared images of her and photoshopped images. Therefore, despite these concerns about this aspect of the applicant’s evidence the Tribunal is willing to accept [Mr A] shared video footage of the applicant, and of the applicant’s face photoshopped on other images (as well as photographs) to others. It is plausible such images could have been shared, including via social media.

6. The Tribunal accepts [Mr A] visited the applicant’s house (where she was staying with her mother) in [City 1] several times during this period, sometimes accompanied by local police officers, possibly to intimidate her further. It accepts during some visits he threw stones and graffitied the wall of her mother’s house, as claimed.

7. The Tribunal notes at hearing the applicant said in addition to receiving phone calls from men soliciting her for sex (after [Mr A] had circulated videos in which he proclaimed she slept with men for money and generally defamed her character) she also received phone calls from police officers who purportedly told her they were police from [City 1]. When asked why she had failed to mention this claim before, the applicant said because it was the first time she had had a chance to give evidence in person. In her post-hearing submission the representative echoed these sentiments, submitting that the hearing was the first time the applicant was afforded an opportunity to have a face-to-face interview to discuss her claims, and therefore could provide more detailed and spontaneous information about the type of treatment she was subjected to living in Sri Lanka.

5 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.87

1. The applicant’s failure to mention that police in Sri Lanka also telephoned her for sex in her written claims provided to the Department and Tribunal is of concern. However having listened to the recording of the applicant’s interview with the delegate the Tribunal notes she did mention, albeit briefly, that [Mr A] was friends with the police, whom he sent videos to, and that ‘they were trying to use me’. This was in the context of explaining why she did not go to the police station, including due to her Tamil ethnicity whereby any complaints would not be taken seriously: a sentiment she reiterated at the Tribunal hearing. Given this, and the fact the Tribunal otherwise found the applicant’s evidence generally consistent with her written and oral evidence provided to the Department, the Tribunal accepts her claims that police also solicited her for sex.

2. In its report DFAT notes a source said police sometimes solicit sexual favours from women who report complaints (when discussing barriers for Tamil women in the north and east seeking protection).6

3. The Tribunal does not, however, accept the applicant’s claims at hearing to have changed her mobile SIM card 10 to 15 times during this period in response to phone calls from men (and police) wanting sex given she had not indicated as such beforehand. It is of the view she exaggerated this aspect of her claims.

4. The Tribunal notes a further concern relates to the applicant’s changing evidence about [Mr A]’s alleged interest in her after she left Sri Lanka. That is in her statement provided to the Department she said after she left Sri Lanka he visited her mother and was very angry when he found out she had left. However at interview with the delegate (as indicated in the delegate’s Decision Record) she said she does not believe [Mr A] has been to her mother’s house since she has been in Australia. At hearing the applicant clarified that she has not talked with her mother but her sister told her [Mr A] had come to their mother’s house and threatened to kill the applicant if she returns. Although not without some doubt, the Tribunal is willing to accept her clarification in this respect and accepts [Mr A] had approached her mother asking her whereabouts after she left Sri Lanka and made threatening remarks when he discovered she had left the country. Particularly given it accepts her claims to have been harassed and threatened by him in the recent past.

5. The Tribunal also accepts the applicant’s evidence about her lack of family support on return to Sri Lanka. That is it accepts her father died in 2019 (noting a copy of his death certificate was provided), and whilst she re-established contact with her mother (and sister) in early 2022 following her divorce, she is presently estranged from her mother once again, who pressured her to marry [Mr A]. The Tribunal accepts the applicant remains in touch with her sister – who helped her leave the country – but their contact is limited and kept secret from her sister’s husband who does not want his and his wife’s reputation tarnished by the applicant.

6. Given the Tribunal accepts the applicant experienced a sustained campaign of harassment – including stalking, property damage, and attempted sexual assault – at the hands of [Mr A] for around a year preceding her departure from Sri Lanka, and indications that his interest in her continues, the Tribunal accepts she faces a real chance of serious harm from [Mr A] on return to [City 1]. However, the Tribunal is not satisfied [Mr A] would seek to track down, monitor and possibly seriously harm the applicant in all areas of Sri Lanka in order to meet the definition of well-founded fear of persecution in s 5J(1)(c) of the Act.

7. For the following reasons however, the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country of Sri Lanka, there is a real risk that the applicant will suffer

6 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.95.

significant harm at the hands of [Mr A]. Given these findings it has been unnecessary to consider whether the applicant is a refugee on other grounds that arise or are advanced in the applicant’s case.

COMPLEMENTARY PROTECTION

1. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. Significant harm is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are

   further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

2. It is submitted that the applicant fears significant harm as a divorced Tamil woman (without family protection) who has been sexually assaulted, harassed and threatened by [Mr A] who has ties to the police.

3. As well, in her written submission to the Tribunal the representative notes the applicant − who has no support networks − will be extremely vulnerable to sustained harassment and sexual exploitation by the male population in Sri Lanka.

4. The Tribunal has considered that if the applicant were to return to Sri Lanka whether there is a real risk that she will suffer significant harm from [Mr A] because she rejected and embarrassed him in the past. The Tribunal notes in this regard that the threshold of the ‘real risk’ element in the complementary criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.

5. The Tribunal has accepted the applicant experienced harassment (including sexual harassment), sexual assault, attempted sexual assault and threats including of rape from [Mr A]. Further, that she was monitored and followed by him, that he visited her house several times, and threw stones and damaged her property, sometimes accompanied by local police officers. He also shared images of her – some photoshopped onto pornographic material – to others without her consent. This led to strangers approaching her for sex, neighbours shunning her, and broader reputational damage among the community. She modified her behaviour, such as limiting going outside, as a result.

6. The Tribunal considers [Mr A]’s behaviour can be characterised as obsessive and fixated. It accepts his interest in her has continued, including threatening to kill her via her mother if she returns to Sri Lanka, which is a clear escalation of risk. The Tribunal accepts [Mr A]’s behaviour towards the applicant in the past was a mixture of physical violence and also emotional and psychological abuse, aimed to humiliate and control her, turn others against her, and expose her to unwanted sexual advances. The effect of such behaviour included being shunned by neighbours, a breakdown in her relationship with others including her mother, and the applicant herself limiting her movements, and being vigilant and fearful.

7. Given these considerations, and the fact [Mr A] continues his threats toward the applicant via her mother in Sri Lanka, (and not much time has passed) the Tribunal considers there is a real risk that his past obsession with the applicant may lead to him significantly harming her in the future out of revenge for rejecting and embarrassing him.

1. For these reasons the Tribunal is satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that the applicant will suffer significant harm at the hands of [Mr A] on return to [City 1]. The Tribunal is satisfied that the harm involves severe physical or mental pain or suffering or both, which is intentionally inflicted on the applicant. The Tribunal is satisfied that the harm also involves an act that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is therefore satisfied that the treatment that the applicant will be subjected to amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment, as defined in the Act.

2. The Tribunal notes in this regard research about domestic and family violence in Australian (and reflected in international) jurisprudence that shows the pattern of jealous, obsessive and ridiculing behaviour exhibited by [Mr A] towards the applicant over time – including humiliation and threats; surveillance and monitoring; distributing humiliating images; and property damage – are strong predictors of violence, causing severe injury or death.7

3. The Tribunal considers the applicant would be particularly vulnerable to harm from [Mr A] returning to [City 1] as a divorced Tamil woman with no family support, whose reputation has been sullied by [Mr A] (and her ex-husband), including recently.

4. Further, DFAT assesses that female headed households are vulnerable to societal discrimination and official harassment and exploitation. DFAT reports that single women are frequently able to live full lives in urban centres and also in villages where they often have extended family members:8 something the applicant is lacking.

5. The Tribunal has considered if the applicant could obtain from the Sri Lankan authorities protection such that there would not be a real risk that she would suffer significant harm as referred to under s 36(2B)(b).

6. In this case, the harm that the applicant fears from [Mr A] is from a non-state agent. The applicant claims the Sri Lankan authorities will not protect her from that harm because he is friends with police and has political connections. On this last point whilst the applicant claimed in her statement to the Department that [Mr A]’s brother was a coordinator/strong support of the SLFP at hearing her evidence was vague about these connections and she was unable to articulate how it might be relevant to her case. The Tribunal therefore is not satisfied [Mr A] has political connections as claimed.

7. For reasons above the Tribunal accepts [Mr A] has some connections to local police officers, some of whom visited her house with [Mr A] and telephoned her for sex in the past.

8. At hearing the applicant said another reason she never went to the police to complain about [Mr A]’s harassment and threats was because he is affluent (owning his own shop) and if someone has money they can get the police to do anything. Further as a divorced Tamil woman with no family support the police will not protect her or act if something happens to her, such as being raped. She has also heard stories of police sexually assaulting persons who have made complaints.

9. Country information indicates that there are general measures of state protection in place in Sri Lanka and generally functioning laws. Nonetheless, the Tribunal notes that in order to satisfy s 36(2B)(b) of the Act, court authority requires that the level of protection offered by

7 The Australian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book, 2023, last updated June 2023, DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.100 & 3.102.

the receiving country must reduce the risk of significant harm to something less than a real one: MIAC v MZYYL.9 The Tribunal also notes that the Department’s Complementary Protection Guidelines relevantly state:

The fact that a receiving state has generally functioning laws and standard protections in place that are available to the general community is one element that may be taken into account in determining whether a person faces a real and personal risk of significant harm. Nevertheless, an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place.10

1. With this in mind, DFAT reports that whilst violence against women, and sexual harassment of women in Sri Lanka is common, many are reluctant to report matters to the police. It states that:

   Local sources report that women fear a lack of empathy from the police, lack of support services, and sensationalist treatment of any case in print and social media. Sources told DFAT that police are not adequately trained in collecting evidence in cases of sexual assault, and lack rape kits for evidence collection.11

1. Additionally, local sources told DFAT that police and judicial responses to gender-based violence were inadequate and, where instances of domestic violence were reported, women were often told to return to their partners and resolve the matter within the family unit.12

2. For Tamil speaking women in the north and east – such as the applicant – DFAT states that language is an added barrier to state protection against domestic violence as most police officers there are not proficient in Tamil. Like the military, most members of the Sri Lankan police, including Tamil populated areas, are Sinhalese.13 Also, as noted earlier, one source told DFAT that police sometimes solicit sexual favours from women who report complaints.14 It assesses that female headed households are vulnerable to societal discrimination and official harassment and exploitation.15

3. DFAT also states that some Tamils in the north and east lack confidence in police and security officers and may therefore be less likely to use avenues to seek redress.16

4. On the basis of this country information, in particular concerns about inadequate police responses to sexual harassment and gender-based violence matters, the Tribunal is not satisfied that the general measure of state protection in Sri Lanka is sufficient in the applicant’s case – who is at risk from an individual with links to the police and shown to be violent and obsessed with the applicant in the recent past − to remove the real risk of significant harm from non-state actors. The Tribunal finds that, for the purposes of

   s 36(2B)(b) of the Act that the applicant could not obtain from an authority in Sri Lanka, protection such that there would not be a real risk that she will suffer significant harm.

5. Accordingly the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that she will suffer significant harm from [Mr A].

9 (2012) 207 FCR 211 at [40].

10 Department of Immigration and Border Protection, PAM3 ‘Complementary Protection Guidelines’, s 38 as re-issued 21 May 2015.

11 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.87.
12 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.90.
13 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 5.2.
14 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.95.
15 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 3.102.
16 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 5.1.

1. The Tribunal has gone on to consider if it would be reasonable for the applicant to relocate to an area of Sri Lanka where there would not be a real risk that she will suffer significant harm as required by s 36(2B)(a).

2. When this issue was discussed at hearing the applicant said she has no family support or networks to live in other areas of Sri Lanka. She would be doing so alone with no support. She said she asked her sister if she could stay with her in [City 2] after her divorce but she refused, as her husband regards her as someone of bad character and fears their lives – including government employment – will be negatively affected.

3. Whilst the Tribunal accepts [Mr A] harassed and intimidated the applicant over a sustained period of time and maintains an interest in her, it is not satisfied he would seek to track her down and possibly harm her if she lived elsewhere in Sri Lanka, away from [City 1] where he has his business and connections. The Tribunal is therefore not satisfied the applicant faces a real risk of significant harm from [Mr A] throughout Sri Lanka.

4. However the Tribunal finds that it is not reasonable given the applicant’s personal circumstances for her to relocate to an area of Sri Lanka where there would not be a real risk of significant harm. She would be doing so as a divorced Tamil woman with very limited family support. Whilst she is educated and has work experience and therefore employment prospects (as she did in the past setting up an online [business]) the lack of family support and networks is likely to make relocation difficult. She is also psychologically vulnerable to some extent, having experienced violence and abuse during her marriage and sustained harassment from a local man after she separated from her husband for around a year preceding her departure from Sri Lanka, as evidence by the letter from [Organisation 1] provided.

5. The Tribunal notes DFAT’s advice in this regard is that whilst no official restrictions apply to internal relocation in Sri Lanka, in practice relocation can be difficult. DFAT states:

   An absence of family connections or a lack of financial resources can limit internal relocation options. An absence of language skills can act as an additional barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some part of the country.

   Continued military occupation of private land, difficulties establishing title to land, and uncleared land mines or unexploded ordnance also complicate internal relocation, particularly in the north.17

1. Given the applicant’s particular circumstances combined with such country information about difficulties in relocating in Sri Lanka for someone of her profile and circumstances, the Tribunal is not satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that she will suffer significant harm as required by s 36(2B)(a).

2. The Tribunal is satisfied that the significant harm the applicant faces is one faced by her personally and not faced by the population of the country generally, as required by

   s 36(2B)(c) of the Act.

3. Therefore, the Tribunal finds that the applicant is not precluded by the operation of s 36(2B)(a), (b) and (c) of the Act.

4. The Tribunal is satisfied that the applicant does not have a legally enforceable right to enter and reside in any country other than her country of nationality, Sri Lanka. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act.

17 DFAT Country Information Report: Sri Lanka, 23 December 2021 at 5.13 and 5.14.

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore she satisfies the criterion set out in s 36(2)(aa).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act 1958 (Cth).

   Nicole Burns Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H  Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a

well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of

serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)   any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…