2311589 (Refugee)

2311589 (Refugee) [2023] AATA 4431 (10 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Miss Shamili Kugathas
CASE NUMBER: 2311589

COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Alison Murphy
DATE:10 October 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 1958 (Cth).

Statement made on 10 October 2023 at 11:12am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – particular social group – Tamil woman from a female-headed household from the north of Sri Lanka – victim of sexual violence – repeatedly sexually assaulted by local CID officers – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
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 3 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 19 May 2023. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection by Australia.
The applicant appeared before the Tribunal on 12 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review.
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) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In this case the relevant report is DFAT’s Country Information Report: Sri Lanka dated 23 December 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The delegate’s decision records that the applicant arrived in Australia [in] May 2023 by plane but without a passport after destroying her passport on the plane before her arrival. The applicant claims to be a Sri Lankan national who departed Sri Lanka on a genuinely issued passport in her own name, but states that she destroyed that passport on the plane to Australia on the instructions of the people smuggler who assisted her to leave Sri Lanka.
She produced to the Department a copy of her Sri Lankan national identity card and birth certificate and the delegate accepted her identity is as shown in those documents. For these reasons the Tribunal accepts the applicant is a Sri Lankan national and has assessed her claims against Sri Lanka as her country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [age]-year-old woman from Jaffna in Sri Lanka’s Northern Province of Tamil ethnicity and Christian religion. The Tribunal notes the applicant’s date and place of birth is confirmed in her identity documents and DFAT reports that Tamils make up most of the population in the Northern Province.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 December 2021 at 3.2
The applicant grew up in a household comprising her parents and one sister. Her mother left the family in around 2005 when the applicant was aged about [age]. After her mother left, her father took the applicant’s younger sister to Vanni to live with his family, leaving the applicant to live with her maternal grandmother.
The applicant claims that in 2008, her mother died in an accident when the boat on which she was travelling sank between Sri Lanka and India. In 2009, the applicant’s father and sister, then aged [age], were killed in shelling in the end stages of Sri Lanka’s civil conflict.
In support of these claims the applicant has provided copies of the death certificates relating to her father and sister, indicating they died in Mullivaikkal, Vanni District [in] April 2009 and recording their cause of death as ‘Vanni war’. She has also produced a copy of her mother’s death certificate which records that she died at sea [in] September 2008 after the boat capsized, and an untranslated media article about the sinking of that boat.
At hearing the applicant gave evidence that her grandmother placed her in a hostel from about the age of [age] so that she could receive financial assistance for her studies and living expenses. Her grandmother was also concerned about the way the applicant was treated by her maternal aunt and family. She has produced a letter from the [named] Orphanage confirming that the applicant was a student there from Grade [number] to Grade [number] after losing her parents and being without any support. [The named orphanage] is an Anglican church run centre in [District 1] for disadvantaged women and girls, including a dormitory for orphans and vulnerable girls.[2] The Tribunal accepts that the applicant’s parents and sister are deceased and that the applicant spent her childhood living with her maternal grandmother in Jaffna and later a hostel for orphaned children and vulnerable girls.
[2] [Source redacted]
In view of the applicant’s consistent evidence and the corroborative documentation she has provided, the Tribunal accepts each of the above matters to be true.
Travel to Australia
Departmental records confirm the applicant entered Australia without a visa [in] May 2023. She was not immigration cleared and has been in immigration detention since her arrival. The Departmental file indicates she is one of three Sri Lankan nationals who travelled together on the same flight from [Country 1] to Australia using [foreign] passports. All three were intercepted at the airport and taken into immigration detention.
At hearing the applicant gave evidence that she departed Sri Lanka using the services of a people smuggler, flying to [Country 1] on her own Sri Lankan passport where she was given a bundle of documents including a boarding pass for her flight to Australia. Although she originally maintained she used her own Sri Lankan passport to board her flight to Australia, she later acknowledged using a different passport that was given to her at the airport in [Country 1] although she claims that she does not know what country that passport was issued by. She destroyed that passport on the plane on the way to Australia as instructed by the people smugglers. Departmental records confirm that the applicant was searched upon her arrival and was not carrying a passport.
The applicant gave evidence that she did not know either of the other Sri Lankan nationals that the Department believes entered Australia on the same flight and in the same manner, but that she met one of them in the toilets after her arrival. She said they were instructed to hide in the toilets immediately after landing in Australia. Departmental records confirm that she was located there by immigration staff before being questioned and detained.
Claims for protection
In a statement accompanying her visa application, the applicant states she fears persecution in Sri Lanka as a single Tamil woman and female head of the household from the Northern Province of Sri Lanka who suffers from severe mental health vulnerabilities as a consequence of being a victim of sexual assault, harassment and rape by agents of the Sri Lankan authorities. She also fears harm as a failed asylum seeker returning to Sri Lanka from a western country having departed that country illegally.
In particular she claims that from 2021 until her departure from Sri Lanka in 2023, she was repeatedly sexually assaulted by a number of CID officers in Jaffna after they responded to an enquiry at a neighbour’s house. After speaking to her outside the home she shared with her grandmother, they returned to the house the following night and offered her money for sexual services before being scolded by her grandmother. The officers left on that occasion but warned the applicant and her grandmother that they would return and that nobody should speak of what had happened.
The applicant claims that her grandmother feared for their safety, taking her to stay at the applicant’s aunt’s house a short distance away for several days. The applicant did not get on with her aunt and when her aunt found out that the CID had visited their home, she told them to leave, fearing for the safety of her own daughters. The applicant and her grandmother returned to their home about five days after leaving.
The applicant claims that the night after they returned, four CID officers came to their house and sexually assaulted her, telling the applicant and her grandmother that if they tried to move away again they would face massive problems. In around July 2021, two CID officers came to the house and locked her in a room before raping her and in September 2021, they returned and took her away in a vehicle. The applicant begged them not to take her, but they told her that if she didn’t go with them they would kill her grandmother. She was taken to a deserted house where men were drinking and she was subjected to a gang rape. Between September 2021 and May 2023 she was subjected to sexual assaults and rapes on more than 40 occasions.
The applicant claims that in February 2023, her grandmother was unwell and was hospitalised. Following a particularly violent sexual assault, after which the CID officers threatened to sell the applicant off as a sex slave, the applicant went to [the] Police Station with her grandmother. They were stopped by an officer at the entrance, who asked her why they were there. When she said she wanted to report a sexual assault, the officer seemed to be aware of what had happened to her, telling her that he would call the CID officers and tell them she was at the police station to make a report against them. After hearing this, the applicant and her grandmother returned home. The CID officers came to their house later the same day, warning her against ever involving the police.
Her grandmother was hospitalised again in March 2023, and feared that if she died the applicant would have no future in Sri Lanka. Distant relatives visited and one of them, [Mr A], provided the applicant with details of a people smuggler to whom the applicant provided a copy of her Sri Lankan passport and a passport photograph. The applicant travelled to Colombo [in] May 2023 where she was instructed not to leave the hotel, departing Sri Lanka on [date] May 2023 and arriving in Australia on [date] May 2023.
The delegate did not accept any of the applicant’s claims to be true, considering that she had been inconsistent in her statements at interview and had not provided any corroborative evidence of her claims to have been sexually assaulted by CID officers. The delegate considered that the applicant’s claims about the circumstances in which she attracted the adverse attention of the CID officers in June 2021 were vague and unconvincing and the fact she had not had previous contact with CID officers undermined the credibility of her claims. She further considered that the three month delay between the first and second incidents of sexual assault by the CID officers also undermined the credibility of her claims, as did the lack of corroborative evidence that the applicant had sought medical assistance or reported the assaults to the police.
The delegate noted that the applicant was assisted by a relative, [Mr A], and questioned why she could not return to Sri Lanka and live with his assistance or with her grandmother’s son with whom the applicant and her grandmother had stayed briefly in 2021. The delegate’s decision also records that she doubted the CID officers would continue to be interested in the applicant now that she had departed the country, given the applicant’s evidence that they had not threatened her since her arrival in Australia.
The delegate’s decision records that at the Departmental interview that took place on 5 June 2023, the applicant was asked to comment on apparent inconsistencies in her statements at the entry (airport) interview [in] May 2023 and the Departmental interview on 5 June 2023. That information was identified as being the reason, or part of the reason, why she may be refused the protection visa and it was particularised as follows:
·That she had a relative from her father’s side named [Mr A] who is approximately [age] years old and the applicant had stated that he was close to her after her father’s death;
·She had claimed to have been sexually assaulted once during her studies when she was living in a hostel, after which she went to a hospital for treatment and reported her assault;
·She had claimed that in June 2020 she was verbally abused on the side of a road.
The delegate’s decision records that she put to the applicant at the interview that the above information provided during her entry interview was relevant because it contradicted information in her written claims and during the protection visa interview. At hearing the applicant stated that [Mr A] visited her grandmother after her father’s death but that he was not known to the applicant because she was living in the hostel. She denied stating that she was sexually assaulted while living in the hostel and maintained that she was verbally abused by the CID officers who had assaulted her in 2020.
The Tribunal has listened to the audio recording of the entry interview. While there are some parts of the audio recording of the entry (airport) interview [in] May 2023 that are somewhat unclear, the Tribunal was unable to locate any statement by the applicant to the effect that she was close to [Mr A] after her father’s death. Rather her evidence at the entry interview was that [Mr A] was a relative on her father’s side, that she did not know him personally (including his family name) and that he was not close to her family. Nor could the Tribunal identify any part of that interview in which the applicant states that she was sexually assaulted while living in a hostel.
The Tribunal has also listened to the audio recording of the departmental interview and notes that there were obvious problems with the standard of interpretation at that interview. For example, the gender of the applicant’s aunt was repeatedly misunderstood. The applicant’s representative advised the delegate on more than one occasion that the delegate’s questions to the applicant were not being accurately interpreted resulting in some of her answers being non-responsive to the questions.
At the Tribunal hearing the applicant gave evidence that was highly consistent with her earlier statements. Her evidence is also consistent with the medical evidence as to the care provided to the applicant while she has been detained in Australia. International Health and Medical Services (IHMS) clinical notes record that on [date] May 2023, officers at the detention centre heard screaming and found the applicant on the floor of her room, shaking, distressed and sweaty. It is recorded that it took officers over 10 minutes to calm her down, at one point restraining her.
The applicant disclosed the claimed sexual abuse to a mental health practitioner shortly after her arrival on [date] May 2023 and again on [date] June 2023. It was recorded on [date] June 2023 that she displayed symptoms of PTSD on review including anxiety, intrusive symptoms and breathing difficulties.
A report from Foundation House dated [date] September 2023 records that the applicant was referred to that service by a mental health nurse for symptoms including torture and trauma memories, somatic symptoms, sleep disturbances, excessive rumination, dissociation/ numbing and suspiciousness. As at the date of the report, the applicant had attended six counselling sessions. The report recounts her personal history, including that she experienced multiple incidents of sexual violence, including gang rape, from the Sri Lankan authorities over a two-year period.
The report records that she displays profound symptoms when discussing past traumatic events including foot tapping, uncontrollable shaking, profuse sweating and hand wringing. It was also observed that her breathing becomes shallow and difficult, she cries and is hypervigilant and describes feeling disconnected with herself and requires guided grounding techniques to reorient her to time and place. She is diagnosed with post-traumatic stress disorder in the severe range which significantly impacts her psychosexual functioning, in the context of multiple experiences of sexual violence.

The applicant has consistently stated that she sought medical treatment in Sri Lanka in early 2023 following a particularly violent gang rape. Following the hearing the applicant’s representative sought further time to obtain medical records from that time, but subsequent correspondence indicated those records could not be produced as the hospital was reluctant to release them without the applicant being present in Sri Lanka. The Foundation House report records that they have recommended the applicant seek further gynaecological support.
On the evidence before it, the Tribunal accepts that the applicant was subjected to serious and repeated sexual violence in Sri Lanka. In light of her consistent evidence, the Tribunal accepts that the perpetrators of that violence were local CID officers. In making that assessment the Tribunal has also had regard to the country information cited below, indicating that there have long been allegations of sexual violence by the Sri Lankan army and police against Tamil women in north and east Sri Lanka, both during the conflict and its aftermath.
Risk of harm on return
For the reasons set out above, the Tribunal has accepted that the applicant is a [age]-year-old woman of Tamil ethnicity from Jaffna in Sri Lanka’s Northern Province. She was orphaned as a young child, her mother dying in an accident at sea in 2008 and her father and younger sister dying in the conflict in Vanni during the final stages of Sri Lanka’s civil war. She grew up in the care of her grandmother and spent some years living in an orphanage for orphaned and vulnerable girls. Her grandmother is elderly and ill and the applicant has no family remaining in Sri Lanka except for an aunt and her family who also live in Jaffna.
In considering the applicant’s risk of harm on return to Sri Lanka, the Tribunal has had regard to the situation in Sri Lanka following the civil war.
Sri Lanka’s Eastern and Northern Provinces experienced serious and long running military conflict between 1983 and 2009. During this time, the LTTE waged a military campaign against the Sri Lankan authorities with the main aim of establishing a separate Tamil state, Tamil Eelam, in the north and east of Sri Lanka. The conflict lasted until May 2009 when the Government announced its military victory over the LTTE and complete territorial control over Sri Lanka.[3] Over the course of the conflict, hundreds of thousands of people were displaced and tens of thousands of people were killed.[4] The UN found credible allegations that both sides committed crimes against civilians.[5]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 2.2
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 2.2
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018; UK Home Office Operation Country Information and Guidance about Tamil Separatism in Sri Lanka dated 28 August 2014
DFAT reports that thousands of women in the north and east of Sri Lanka lost husbands and other family members during the war. Some women were active participants in the dedicated female military wing, with some being forcibly recruited. The current DFAT report states that DFAT considers allegations of sexual violence against female former LTTE members held in detention and rehabilitation camps at the end of the war to be credible.[6]
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.131
Members of the Sri Lankan police and armed forces are reported to have perpetuated sexualised violence on countless Tamil and Muslim women during the civil war.[7] The 2011 UN Secretary-General’s Panel of Experts and the 2015 OHCHR investigation report outlined allegations of sexual violence against Tamil women that would constitute war crimes.[8]
[7] Don’t ignore militarised sexual violence (immi.gov.au)
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.90
In 2013, the Sri Lankan military rejected allegations made by Human Rights Watch that it continued to commit sexual violence on former LTTE cadres in detention.[9] In the same year it was reported that four years after the end of the armed conflict, the situation for women in the north and east of Sri Lanka remained deeply insecure, with many having lost husbands and other family members and facing human rights violations ranging from sexual violence to land grabbing. The Sri Lankan government was said to have actively contributed to these violations through the pervasive militarisation of the north and the east.[10]
[9] ‘Sri Lankan Army rejects allegations of ‘sexual violence’ on Tamils in detention’, Daily Mirror (Sri Lanka), 28 February 2013
[10] ‘Living with insecurity: Marginalization and sexual violence against women in north and east Sri Lanka’, Minority Rights Group International, Unknown, 01 October 2013, CIS26398
In each of its country information reports published between 2015 and 2017, DFAT reported allegations of sexual assaults and rape attributed to the Sri Lankan military in the north and the east, with the military blamed for taking advantage of economically vulnerable women while others were forced into prostitution as an economic necessity.[11]
[11] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 3 October 2014 at 3.57; 16 February 2015 at 3.57 and 18 December 2015 at 3.90; 24 January 2017 at 3.75
In 2017, the UN Special Rapporteur on minority issues reported a decrease in the incidence of sexual assault by the military as it drew down in the north and east but reported that Tamil women continue to fear sexual assault in locations where the military presence remains. In the same year, the Foreign Correspondent Association of Sri Lanka quoted former President Chandrika Bandaranaike Kumaratunga as saying that Tamil women continue to face sexual exploitation both by the military and Tamil officials, the latter allegedly demanding sexual favours to carry out routine paperwork.[12]
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.90 – 3.92
In July 2017 the International Crisis Group cited reports of the routine sexual exploitation of women by state officials and military personnel and the UN Special Rapporteur raised concerns that women in the north were subjected to harassment and sexual violence while employed by the Civil Security Department.[13]
[13] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.90 – 3.92
The ICG reported that eight years after the end of Sri Lanka’s armed conflict, tens of thousands of Tamil war widows and wives of the missing had been forced to become heads of household and primary income earners amid a breakdown in social and family structures, with an estimated 40,000 war widows in the Northern Province and 50,000 in the east.
In 2019, the United Nations Commissioner for Human Rights reported that the OHCHR had continued to receive credible information about cases of abduction, unlawful detention, torture and sexual violence by Sri Lankan security forces in northern Sri Lanka.[14] In June 2019, the UN Special Rapporteur on Torture referred to the continued and systematic use of torture and sexual violence by Sri Lankan security forces in the context of radical Sinhalese nationalism.[15]
[14] ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, Office of the United Nations High Commissioner for Human Rights, 08 February 2019, p.11, 20190311120409
[15] ‘US Congressional Caucus discusses lack of progress on transitional justice and rise of radical Sinhala nationalism in Sri Lanka’, Tamil Guardian, 10 June 2019, 20190715124246
Female-headed households were reported to be particularly vulnerable to sexual abuse:
Many women interviewed described routine exploitation by men in a range of positions: state officials, non-governmental organisation (NGO) staff, workers and military personnel. In return for providing help to find their loved ones or improve their economic status, men often demand sexual favours. Women also report an increase in demand for sex work from men drawn to the provinces by post-war business opportunities. In other cases, facing physical and economic insecurity, some women heading households enter into short-term or informal sexual relation- ships in return for economic benefits or protection.
Women interviewed spoke of military personnel frequently trying to befriend women, visiting their homes and approaching them on the streets, which left them feeling vulnerable.[16]
[16] ‘Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of War’, International Crisis Group, 28 July 2017, pp.10-11, CISEDB50AD4992
In 2019, DFAT reported that there were an estimated 1.4 million female-headed households in Sri Lanka, mostly in the north and the east, and that these households are vulnerable to poverty, gender violence and sexual exploitation. While the number of reports of sexual violence against Tamil women in the north and east of Sri Lanka has decreased in recent years, DFAT’s most recent report suggests such women continue to experience difficulties accessing government services and some women report requests for money or sexual services from officials in exchange for information or services. Overall DFAT assesses that female-headed households are vulnerable to societal discrimination and official harassment and exploitation.[17]
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.136 – 3.142
For the reasons set out above, the Tribunal has accepted that the applicant was subjected to serious sexual violence from members of Sri Lanka’s security agencies as recently as
2021-2023. Given the prolonged nature of that violence, which started in her home and on occasion saw her forcibly removed to other locations, the Tribunal accepts there to be a real chance she will face further violence from those police officers should she return to her home area in Jaffna, now or in the reasonably foreseeable future. The Tribunal finds that the essential and significant reason for that violence is the applicant’s profile as a Tamil woman from a female-headed household from the north of Sri Lanka.
In considering whether such women can form a particular social group for the purposes of s 5J(1)(a), the Tribunal has had regard to the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …
The Tribunal is satisfied that ‘Tamil women from female-headed households in the north and east of Sri Lanka’ are capable of constituting a particular social group. They are identifiable by their shared characteristics of their gender, ethnicity and lack of a male household head, not a shared fear of persecution. The country information set out above indicates that they are distinguished from Sri Lankan society at large.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
It is not suggested that the violence perpetuated by the applicant’s persecutors was state-sanctioned, notwithstanding that the perpetrators were police officers. However, country information indicates that women in the applicant’s situation are unable to access state protection due to cultural and social attitudes, poor resourcing and language barriers.
As reported by the ICG:
Justice for sexual and gender crimes is rare: few cases are prosecuted, especially if the alleged perpetrator is in the security services, and even fewer end with convictions. Court procedures are long and not gender sensitive; delays, the adversarial approach of lawyers and social stigma all combine to re-traumatise many victims and discourage others from seeking justice.[18]
[18] ‘Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of War’, International Crisis Group, 28 July 2017, pp.10-11, CISEDB50AD4992
The current DFAT report, now almost four years old, states that more opportunities exist today for women and girls to report gender-based violence, but that slow judicial processes and cultural and social attitudes act as deterrents, along with language barriers for Tamil women in the north and the east:
While the government has made attempts to recruit more Tamil-speakers, most police officers in the north and east are not proficient in Tamil. According to local sources, there are few Tamil-speaking female police officers trained to respond to gender-based violence, and Women’s and Children’s desks at police stations in the north are often attended by Sinhala-speaking male officers.[19]
[19] DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.134 – 3.135
As well DFAT reports that male police sometimes solicit sexual favours from women who report complaints and few cases of gender-based crimes involving a member of the security forces have resulted in convictions. While some support services exist, they are generally not considered adequate.[20] The applicant’s own experience of attempting to report the violence against her to the police and being threatened with exposure to her perpetrators is consistent with the above country information. In these circumstances the Tribunal finds that the applicant is unable to access effective state protection.
[20] Ibid
DFAT reports that Sri Lanka’s military no longer requires the forced registration of Tamil residents in Jaffna or the compulsory registration of Tamils living in the south. However, Sri Lanka’s security forces maintain effective control throughout Sri Lanka and DFAT reports that individuals are unlikely to be able to relocate with anonymity. In particular, DFAT states that the Sri Lankan security forces continue to maintain a high level of awareness of returned IDPs to the north and east.[21] Given that the perpetrators of the harm feared by the applicant are police officers, the Tribunal accepts they have the capacity to locate her across the country and that the applicant’s well-founded fear of persecution extends across all areas of Sri Lanka.
[21] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 5.26 – 5.30
It follows that the applicant meets the definition of a refugee as set out in s 5H and she therefore meets the criteria set out in s 36(2)(a).
CONCLUSIONS
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).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).
Alison Murphy
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.
…

[2023] AATA 4431

10 October 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction