2405713 (Refugee)
[2024] AATA 3985
•13 August 2024
2405713 (Refugee) [2024] AATA 3985 (13 August 2024)
DECISION RECORD
DIVISION:
Migration & Refugee Division
REPRESENTATIVES:
Ms Clare Hughes (until 11 August 2024)
Mr Galen Jaffurs (from 11 August 2024)
CASE NUMBER:
2405713
COUNTRY OF REFERENCE:
Sri Lanka
MEMBER:
Fraser Robertson
DATE:
13 August 2024
PLACE OF DECISION:
Perth
DECISION:
1. The Tribunal sets aside the decision of the delegate and remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.
2. The Tribunal notes that an assessment in respect of s 36(1C) of the Act is required in respect of the applicant.
Statement made on 13 August 2024 at 1:31pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – migrated as child – difficulties integrating, and multiple, complex cognitive impairments and mental health conditions – criminal offences, imprisonment, cancellation of resident return visa and immigration detention – request for revocation of RRV refused – long residence, conversion to Christianity and no family or means of support in home country – extensive reports from practitioners – country information – political and economic conditions, quality of and access to health services, and societal stigma – particular social group of persons suffering from significantly impaired functioning – systematic and discriminatory conduct – assessment of danger to Australian security or community required – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(iv), 5L, 36(1C), (2)(a), 501(3A)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 18B
CASES
Chen Shi Hai v MIMA [2000] HCA 19; 201 CLR 293
DQU16 v MHA [2021] HCA 10; 273 CLR 1
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 dependants.
STATEMENT OF DECISION AND REASONS
INTRODUCTION
The applicant is a [Age]-year-old male from Sri Lanka who first arrived in Australia as a [Age]-year-old boy. As an adult, the applicant has been convicted of a number of offences and spent periods of his life in prison. Most recently, the applicant was sentenced to a term of 5 months in prison for convictions relating to failing to comply with a supervision order made under the Serious Sex Offenders (Detention and Supervision Act) 2009 (Vic).
Whilst in custody, the applicant's Class BB Subclass 155 Resident Return Visa ('RRV') was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the 'Act'). Upon cancellation, the applicant became an unlawful non-citizen. When his term of imprisonment ended in July 2015, the applicant was detained as an unlawful non-citizen and transferred to immigration detention. He has remained in immigration detention ever since.
In March 2017, the applicant's request for revocation of the cancellation of his RRV was personally refused by the Assistant Minister for Immigration and Border Protection ('Non-Revocation Decision'). The Assistant Minister determined that the applicant did not pass the character test, and that there was not another reason to revoke the cancellation of the applicant's RRV.
The applicant sought judicial review of the Non-Revocation Decision. That application was dismissed by the Federal Court of Australia. An appeal was dismissed by the Full Federal Court of Australia. The applicant unsuccessfully sought special leave to appeal to the High Court of Australia.
The applicant applied for a protection visa in July 2022. The applicant was not interviewed by the Department but was invited on multiple occasions to provide additional evidence and submissions relating to his claims for protection. The applicant responded to some, but not all, of those requests.
In March 2024, a delegate of the Minister for Home affairs refused to grant the applicant a protection visa. Essentially, the delegate concluded that the applicant did not satisfy the criteria for the grant of a protection visa because he did not face a real chance of serious harm, or a real risk of significant harm if he were returned to Sri Lanka.
The applicant has sought review of the decision of the delegate to refuse to grant him a protection visa. The applicant was represented in respect of the review application by Refugee Legal, initially by Ms Clare Hughes ('Ms Hughes') and from 11 August 2024 by Mr Galen Jaffurs ('Mr Jaffurs'). I am grateful for their submissions which has assisted me in determining this application.
Following a case management hearing on 29 April 2024, the applicant attended hearings before the Tribunal on 11 June 2024, 15 July 2024 and 12 August 2024.
Based on the evidence and submissions before me, I have found that the applicant is a refugee and will remit the application to the Department with a direction that the applicant satisfies s 36(2)(a) of the Act. Having reached that conclusion, I have endeavoured to produce these reasons as quickly as was practicable in circumstances where the applicant is presently detained.
This conclusion does not mean that the applicant will necessarily be granted a protection visa. The applicant's criminal record is such that before he can be granted a visa, he must still satisfy s 36(1C) of the Act.
No assessment has been made of whether the applicant satisfies s 36(1C) of the Act. That question is not before me, and I express no views or conclusions about whether the applicant satisfies, or does not satisfy, s 36(1C) of the Act.
These are my reasons for concluding that the applicant satisfies s 36(2)(a) of the Act.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).
I am directed to only deal with the elements of the criteria necessary to resolve the application for review.[1]
[1] See Direction in relation to Conducting Migration and Refugee Reviews given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
Refugee criterion
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 decision‑maker 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.[2]
[2] Migration Act 1958 (Cth), s 5H(1)(a).
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.[3] Persecution must involve serious harm[4] and systematic and discriminatory conduct.[5]
[3] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[4] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[5] Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[6] A "real chance" is a prospect that is not "remote" or "far‑fetched", but does not require a likelihood of persecution on the balance of probabilities.[7] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.
[6] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[7] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
ANALYSIS, FINDINGS AND REASONS
The applicant was born in Colombo[8] and is a Sri Lankan citizen.[9] He is of Sinhalese ethnicity. At birth, his name was [Birth name].[10]
[8] See Form 866, Application for a Protection Visa ('PV Application'), Part C, p 16, q 13.
[9] PV Application, Part C, p 16, q 14-15.
[10] PV Application, Part C, p 15, q 6.
The applicant's father was both in [Year] and his mother in [Year].[11] At the time of lodging his protection visa application, his mother was deceased. In response to the question about details of other family members who reside in Australia, the applicant's response was "TBP".[12] The application otherwise claimed not to be in contact with relatives outside of Australia or have any personal contacts in Australia.[13] His father is a Sri Lankan citizen and his mother was also, prior to her death, a Sri Lankan citizen.[14] He has [siblings].[15] His siblings were also born in Colombo.[16] His father and siblings all live in Victoria.[17]
[11] PV Application, Part C, p 19, q 39.
[12] PV Application, Part C, p 20, q 40. TBP refers to 'to be provided'.
[13] PV Application, Part C, p 21, q 41.
[14] PV Application, Part C, p 16, q 17-18.
[15] PV Application, Part C, p 19, q 39.
[16] PV Application, Part C, p 19, q 39.
[17] PV Application, Part C, p 19, q 39.
The applicant attended school in Colombo until Grade [Number].[18] He departed Sri Lanka and first arrived in Australia in 1988 as a [Age]-year-old boy.[19] In Australia, he attended primary school in [Suburb 1] and High School at [College] in [Suburb 2].[20] He completed high school in [Year].[21] Following this, he claims that he completed a Certificate IV in [Subject 1].[22] He withdrew from a [subject 2] certificate.[23] The evidence of the applicant's father was that the applicant struggled to integrate into Australia and found it difficult to pick up English.[24] He was teased, bullied and subjected to racism and discrimination because of his Sri Lankan background.[25] This led to the applicant suffering from depressive like symptoms and struggling in school.[26] It also led to the applicant's mother limiting his opportunities for social development.[27]
[18] PV Application, Part C, p 29, q 72.
[19] Delegate's decision, p 1.
[20] PV Application, Part C, p 29, q 72.
[21] PV Application, Part C, p 29, q 72.
[22] PV Application, Part C, p 29, q 72.
[23] PV Application, Part C, p 29, q 72.
[24] See statutory declaration of [Mr A] dated 10 June 2024, [6]-[8].
[25] See statutory declaration of [Mr A] dated 10 June 2024, [6]-[8].
[26] See statutory declaration of [Mr A] dated 10 June 2024, [6]-[8].
[27] See statutory declaration of [Mr A] dated 10 June 2024, [6]-[8].
The applicant claims that he is Christian without listing any specific denomination,[28] explaining that he became a Christian because of his attendance [College].
[28] PV Application, Part C, p 17, q 30.
The was granted a resident return visa ('RRV') in 1998, when he was [age] years old.[29] The applicant returned to Colombo "a couple of times", most recently returning in January 2001 for after attending Colombo with his family for his sister's wedding.[30]
[29] Delegate's decision, p 2.
[30] PV Application, Part C, p 26, q 67.
Shortly after his [Age] birthday, the applicant raped a prostitute whom he had hired to perform oral sex on him. He was arrested and granted bail [in] November 2000 at which time he was charged with similar offences against another prostitute.[31] In April 2002, the applicant was convicted of two counts of assault and four counts of rape. He was sentenced to a total effective sentence of nine years and six months imprisonment with a 7-year non-parole period.[32]
[31] See sentencing remarks dated [Date] February 2009: The Queen v [Birth surname].
[32] Sentencing remarks, [14].
Those convictions and sentences were set aside on appeal in February 2004. [In] June 2004, the applicant was released on bail pending a re-trial. [In] May 2005, the applicant was again convicted of the same offences. On this occasion, he was sentenced to a total effective sentence of eight years imprisonment with a five-year non-parole period.[33]
[33] Sentencing remarks [18].
The applicant was successful in another appeal [in] December 2006 and, again, released on bail [in] December 2006.
The applicant changed his name to [the applicant] in June 2007.[34]
[34] See change of name certificate, registered [in] June 2007.
On 30 October 2008, before a third trial, the applicant pleaded guilty to a single count of rape and a single count of assault against one prostitute arising from the same incident. The remaining charges in relation to another prostitute were discontinued.
The applicant was sentenced by [Judge C] in the Country Court of Victoria [in] February 2009. His Honour's sentencing remarks were before the Tribunal and recorded:
[Deleted].
When sentencing the applicant, [Judge C] referred to the applicant suffering from chronic emotional immaturity, major communication skill deficits, cognitive shortcomings and psychological disorders of anxiety and depression. The applicant was sentenced to a term of imprisonment of 5 years in respect of the rape and 1 year in respect of the assault. Those sentences were cumulative, with the result was that the applicant was sentenced to a total effective term of imprisonment of five years. A three-and-a-half-year non-parole period was ordered.[35]
[35] Sentencing remarks [63]-[68].
At the hearing before the Tribunal on 12 August 2024, the applicant characterised his offending as having been described by the sentencing judge as being at the lowest end of seriousness. In sentencing the applicant, the sentencing judge observed:[36]
Offending of the type that you have engaged in is offensive, repugnant and intolerable in this society. Rape in any form is serious but I regard your conduct in committing this offence as being of a most serious kind. True it is that [the victim] suffered no lasting physical injury as a result of your conduct but it would appear she has suffered emotionally and psychologically as a result of your conduct and whilst the evidence is limited, that suffering may be expected to last for some time if not indefinitely.
Further, the nature of your offending in abusing and violating [the victim] when she was obviously not consenting makes your offending very serious.
[36] Sentencing remarks [54]-[55].
Nowhere did the sentencing judge remark that the applicant's offending was at the lower end of the scale or anything of the sort. Rather, the applicant's impression is unsupported by the evidence in my view. However, I mention it because it provides insight into the applicant's psychological and cognitive functioning. It demonstrates his overall lack of insight and empathy. It shows, particularly when considered against the whole of the evidence, the deficits in the applicant's functioning and his remarkable level of self-centeredness.
[In] August 2011, the applicant was placed on an order made under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). That order was extended on or about [Date] November 2013.[37] In her reasons for judgment, [Judge D] referred to reports of the applicant having breached various conditions of supervision order on three occasions. It referred to the applicant's continued refusal to undertake the Sex Offender Program[38] or the Disability Pathways Program to address his sexual offending.[39] It also referred to the applicant's ongoing refusal to permit those supervising him to discuss his progress with his treating medical practitioners.[40] The reasons also referred to his view that he did not need the supervision order, that he continued to focus on himself regarding his offending and that he had "seldom, if ever mentioned the impact on his victims".[41]
[37] See reasons for judgment dated [November] 2013, [12]-[17].
[38] See reasons for judgment dated [November] 2013, [15].
[39] See reasons for judgment dated [November] 2013, [20].
[40] See reasons for judgment dated [November] 2013, [19].
[41] See reasons for judgment dated [November] 2013, [20].
The applicant disclosed in his protection visa application that he had been found guilty of various offences. [In] February 2009, the applicant was convicted of rape for which he was sentenced to a term of imprisonment of five years, with a three-and-a-half-year non-parole period.[42] He otherwise disclosed[43] offences for driving in a dangerous manner, failing to stop after an accident and "reckless" in October 2010; conduct endangering serious injury and behaving in an offensive manner in public on 12 October 2010; and 4 counts of breaching a supervision order for which he was convicted on 27 March 2015. That is, the applicant continued to offend following his release from prison.
[42] Non-revocation decision, [53].
[43] PV Application, Part C, p 30, q 73.
The applicant's RRV was cancelled in May 2015.[44] He was subsequently detained in July 2015 as an unlawful non-citizen pursuant to s 189(1) of the Act. He has remained detained since then, a period of more than 9 years. During this time, the applicant unsuccessfully sought to have the decision to cancel his RRV quashed. An application for judicial review was dismissed by [Judge E] on 12 June 2020.[45] A subsequent appeal was dismissed by the Full Court of the Federal Court of Australia on 19 October 2021.[46] On 16 March 2022, the High Court dismissed his application for special leave to appeal.[47] The applicant explained that he had not sought to apply for a protection visa until he had exhausted his rights in relation to challenging the cancellation of his RRV.
[44] Delegate's decision, p 2.
[45] [Deleted].
[46] [Deleted].
[47] [Deleted].
Claims for protection
The applicant's protection visa application was made on 1 July 2022.[48] The protection visa application was made with the assistance of Ms Hughes as his solicitor. In that document, the applicant claimed that his name was [the applicant].[49] He claimed that his name at birth was [Birth name] and that he changed his name because he preferred an Anglicised name after living in Australia since his childhood.[50]
[48] PV Application.
[49] PV Application, Part C, p 15, q 5.
[50] PV Application, Part C, p 15, q 6.
The applicant's protection visa application made claims for protection. His claims can be summarised as follows:
(a)he arrived in Australia as a [Age]-year-old child and had been in Australia for [Number] years. When he left Sri Lanka, it was in the middle of a civil war which involved many casualties and fatalities;[51]
[51] PV Application, Part C, p 31, q 76.
(b)he claims that he is sick and his health will get worse.[52] He claims it has already deteriorated whilst in detention.[53] He claims that he could not pay for treatment for his heart and blood pressure.[54] He claims that he has numerous health and mental health issues.[55] He claims that he needs support of other health services which do not exist in Sri Lanka.[56] He claims that he will not receive the care and medicine that he needs to survive[57] and that socialised/government-funded medical care does not exist in Sri Lanka;[58]
[52] PV Application, Part C, p 31, q 77.
[53] PV Application, Part C, p 33, q 81.
[54] PV Application, Part C, p 31, q 77.
[55] PV Application, Part C, p 31, q 77.
[56] PV Application, Part C, p 31, q 77.
[57] PV Application, Part C, p 33, q 81.
[58] PV Application, Part C, p 33, q 81.
(c)his vulnerabilities mean that he would never be able to survive in what he claims is an unstable environment in Sri Lanka;[59]
[59] PV Application, Part C, p 33, q 81.
(d)he will be discriminated against and targeted due to his mental health and behaviour;[60]
[60] PV Application, Part C, p 33, q 81.
(e)he speaks English, attended Christian school and is a Christian.[61] He claims that he is a Christian convert;[62]
(f)he fears harm from extremist and criminal groups based on either, or a combination of, his religion and vulnerabilities.[63] He fears that he will be harmed given the current security situation and economic crisis, claiming that he would be perceived as a foreigner, westerner,[64] Australian, Christian and wealthy;[65]
(g)he does not know the social norms, language (Sinhalese) or customs of Sri Lanka;[66]
(h)his health issues, inability to speak Sinhalese and criminal record combine to mean that he would never be able to look after himself or find employment;[67]
(i)he does not know how he will survive in Sri Lanka[68] and fears that he will become homeless, alone unable to subsist and will eventually die on the streets;[69]
(j)he does not have any familial support in Sri Lanka and does not know anyone there. He claims that he needs the support of his father and family;[70]
(k)his father "has no money" and could not leave his life and home here in Australia just to care for his adult son;[71]
(l)Sri Lanka does not have food, or medicine, fuel or "anything" available at the moment.[72] He refers to occurrences of looting, riots and curfews;[73]
(m)Sri Lanka is experiencing a major crisis, involving economic, political and public health crises. He claims that authorities are unable to protect themselves, having orders to "shoot on sight" any rioters engaging in violence. He claims that he could not be protected because the authorities have lost all control of law and order;[74]
(n)he could not relocate because of his mental health, lack of language skills, lack of familial support and lack of welfare services.[75] He claims that the dire situation in Colombo is no different to rural areas which are also experiencing, among other things, a lack of power, medicine, and safety;[76]
[61] PV Application, Part C, p 31, q 77.
[62] PV Application, Part C, p 31, q 77.
[63] PV Application, Part C, p 33, q 81.
[64] PV Application, Part C, p 31, q 77.
[65] PV Application, Part C, p 33, q 81.
[66] PV Application, Part C, p 31, q 77.
[67] PV Application, Part C, p 31, q 77.
[68] PV Application, Part C, p 31, q 77.
[69] PV Application, Part C, p 31, q 77; PV Application, Part C, p 33, q 81.
[70] PV Application, Part C, p 31, q 77.
[71] PV Application, Part C, p 31, q 77.
[72] PV Application, Part C, p 33, q 81.
[73] PV Application, Part C, p 33, q 81.
[74] PV Application, Part C, p 33, q 82.
[75] PV Application, Part C, p 33, q 83.
[76] PV Application, Part C, p 33, q 83.
The protection visa application also indicated that identity documents, legal submissions and supporting letters from "medical/psych professionals" and Australian family members would all be provided later.[77]
[77] PV Application, Part C, p 34, q 84.
Does the applicant satisfy the refugee criterion for protection?
There is a considerable volume of evidence before the Tribunal including from the applicant's father and from medical practitioners who have treated the applicant since at least 2005.
Among other things, the applicant claims that he faces a real chance of serious harm or a real risk of significant harm arising out of his physical, mental, intellectual, psychological, neurological, developmental, and behavioural impairment. It was also submitted that the applicant had a 'low functioning level' and was being managed in the community by a high level of support from his immediate family.[78]
[78] See email from Ms Hughes to the Department of Home Affairs dated 20 July 2022.
As I understood the case that Mr Jaffurs succinctly put at the hearing on 12 August 2024, the strongest of the applicant's claims is that he suffers from acute mental health and neurological defects, which are impossible for him to conceal. Those difficulties result in the applicant facing a real chance of experiencing significant physical harassment, significant physical ill-treatment and his capacity to subsist being threatened.
It is claimed that [the applicant] has the following conditions:[79]
[79] See email from Ms Hughes to the Department of Home Affairs dated 20 July 2022.
(a)autism spectrum disorder ('ASD');
(b)chronic emotional immaturity;
(c)intellectual functioning difficulties;
(d)major communication skills deficits;
(e)obsessive thinking and behaviour;
(f)attention deficit hyperactivity disorder ('ADHD');
(g)intermittent explosive disorder;
(h)cognitive shortcomings; and
(i)anxiety and depression.
The applicant provided written submissions to the Department on 4 August 2022. The applicant continued to rely on these submissions at the hearing.
[Dr F] previously reported on the applicant. His report of August 2009 opined that the applicant was experiencing dysthymia, generalised anxiety disorder, obsessive-compulsive disorder and ADHD. [Dr F] also reported that the applicant was experiencing:
Social awareness and communication difficulties which, from [the applicant's] description of his primary school and secondary college .life, then his work., and more recent TAFE experiences, it is clear that these problems have been with him all his life. I believe that his past lack of social awareness and deficiencies in social skills, which have cut him off from establishing meaningful relationships with women, was a contributing factor to his turning to prostitutes for sex and the subsequent criminal behaviour.
[Dr F] also referred to the applicant's difficulty obtaining and holding jobs. The applicant reported having found it difficult to work in the [work sector] because he had difficulty remembering orders and instructions and found multi-tasking difficult. [Dr F] opined that by 2002, the applicant "was a seriously maladjusted individual, struggling intellectually, socially, emotionally and vocationally."
In a subsequent report dated December 2009, [Dr F] theorised that the applicant may suffer from Asperger's Disorder. I note that in 2013, Asperger's Disorder was removed from the DSM-IV and replaced by the umbrella autism spectrum disorder.
[Dr G] reviewed the applicant in 2015, when he was subject to a supervision order, and prepared an extensive report.[80] [Dr G] had prepared three previous reports, dated 23 August 2010, 19 July 2011 and 16 April 2013, respectively. [Dr G] met with the applicant on 4 May 2015.[81] He noted the applicant as being nervous and looked older than he had in the past. [Dr G] noted that the applicant made appropriate eye contact and had speech that was "very verbose", "frequently delivered at a fast pace”, and often "very loud". [Dr G] noted that the applicant was "seemingly unaware" that he was "yelling".
[80] See report of [Dr G] dated 27 May 2015 ('[Dr G] report')
[81] [Dr G] report, p 4, [2].
[Dr G] recorded that the applicant would respond with lengthy answers, unrelated or only peripherally related, to the question being asked. Despite the applicant's presentation and observed thought patterns, [Dr G] recorded that the applicant showed no overt signs of psychotic illness.[82] [Dr G] observed that the applicant appeared to be of "below average intelligence and continued to appear emotionally immature" and made remarks about a perceived lack of insight into his offending. He expressed himself in a way that was "remarkably self-centred.”
[82] [Dr G] report, p 4, [2].
[Dr G] administered psychological testing called Paulhus Deception Scales (PDS). [Dr G] noted that the applicant's responses to the PDS revealed considerable impression management and self-deceptive enhancement. They were in the "very much above average" range. [Dr G] noted that the applicant achieved the highest score possible on the impression management scale, adding that it was exactly as he did the previous two times he had administered the testing.[83] [Dr G] later explains, among other things, that it is impossible to score higher than the Applicant did on the impression management scale all three times it was administered"[84]
[83] [Dr G] report, p 5.
[84] [Dr G] report, p 5, footnote 4.
[Dr G] noted that given the context, some degree of impression management was "not unexpected". He also noted that some caution should be attached to the significance of psychological tests because they do not have "normative data for Sri Lankan populations".
[Dr G] notes that:
the score on the impression management scale was well above the suggested cut-off in the PDS manual for "faking good" and was extremely unlikely to be obtained by an individual who was not purposely faking. While this does not mean that [the applicant – Birth surname] was necessarily untruthful throughout our current (or previous) assessment interviews, it does raise concerns about the veracity of his self-report, particularly regarding social and moral matters.
The footnote to those observations is illustrative:
The unsophisticated nature of [the applicant's] deception is evidenced by his response to the PDS question "I always obey laws, even if l'm unlikely to get caught." His response to this was "very true." I note that he was ironically in a prison at the time that he most recently provided this answer.
[Dr G] also noted suggestions that the applicant had demonstrated a "highly atypyical and serious decline" in his verbal IQ, which could not be fully explained by malingering, notwithstanding that the prospect of malingering was something that was identified as a factor in his presentation and performance. [Dr G] opined that his observation of the applicants "highly unusual presentation, communication and style of information processing" could indicate some form of organic brain damage.[85]
[85] [Dr G] report, p 28.
[Dr G] noted that [Dr H]'s testing of the applicant in April and May 2014 demonstrated that the applicant's perceptual reasoning and working memory were both in the low average range of functioning; his verbal comprehension was in the borderline range, and his processing speed was in the extremely low range.
[Dr G] quoted from an opinion by [Dr H], which stated that [Dr H] previously stated that he met the diagnostic criteria for "Pervasive Developmental Disorder Not Otherwise Specified" with a possible underlying Nonverbal Learning Disorder (NVLD). [Dr G] explained in the May 2015 report that it was "unlikely that [the applicant's] verbal function has dramatically declined over the years" and discarded the NVLD diagnosis.
[Dr H] also noted that Pervasive Developmental Disorder has been removed from the DSM-5 and was not covered by a diagnosis of ASD adding that ASD was not considered to be "an umbrella diagnosis". [Dr G] quotes from [Dr H]'s assessment that:[86]
There remains some degree of diagnostic uncertainty given that his background and early childhood is opaque ... What is clear however, is that [the applicant] a presents with persistent impairment in reciprocal social communication and an unusual social interaction style. It is noted that he benefits from structure provided by others, though in the absence of this, his is (sic) revealed as having profound difficulties in this area. While not exhibiting restricted or stereotyped motor movements associated with severe form of this condition, [the applicant] does demonstrate marked rigidity and inflexibility in his thinking. His difficulties are such that they continue to impinge upon his general functional (sic) in all domains. Given this, dispite (sic) being rather ungainly, it is appropriate to apply to the diagnosis of Autism Spectrum Disorder
[86] [Dr G] report, p 31.
[Dr G] also notes the remarks of [Dr H] that:
despite this diagnosis, [the applicant] remains rather complex and not all of his behaviour is reflective of impairment to understand or express. Indeed, to the contrary, [the applicant] often does not understand his obligations and requirements although his dysfunction is such that he forms views quickly and can become bound to them despite being provided compelling information to the contrary. He is able to intentionally and wilfully deceive others though I suspect in doing so he confuses himself and ultimately produces a perverse life narrative that he attempts to justify and lay blame on others. His independent problem solving is particularly impaired and he is not able to function adaptively. In addition to this, his difficulties are such that his thoughts, actions and behaviours are often hijacked by alterations in his mood.
[Dr H] was requested to conduct a further assessment to "formalise" the diagnosis of ASD.[87] That process was to include interviewing the applicants' parents.[88] The applicant's parents cancelled the interview.[89]
[87] [Dr G] report, pp 33-34.
[88] [Dr G] report, pp 33.
[89] [Dr G] report, p 34.
[Dr G] gave his diagnostic opinion, opining that:
[the applicant] continues to present as an emotionally immature, verbose, ruminative, and remarkably self-centred individual with shallow emotions, poor judgment, low intellectual functioning, and very little in the way of insight.
[Dr G] considered the applicant to be "diagnostically complex". It was suggested that "[p]art of the reason for this is that he has continued to be less than forthright on testing designed to assess his psychological functioning. Indeed, clinical-forensic testing across all three of our assessments has suggested overt faking of responses."
[Dr G] eventually concludes that:
It is clear that [the applicant] is a diagnostically complex individual whose behaviour can be viewed as meeting some, though not all, of the criteria for several different diagnoses. None of these varying diagnostic categories adequately explains his behaviour in isolation. Accordingly, it is my opinion that the most parsimonious conceptualisation of his impaired social skills and dearth of empathy is to view them as further reflections of his damaged personality structure. Indeed, as noted above, such symptoms are characteristic of schizoid personality disorder, although like all other diagnoses that have been considered, [the applicant] does not meet full criteria for that condition either. As such, I remain of the opinion that the admittedly ungainly diagnosis of Mixed Personality Disorder (with dependent, borderline, antisocial, and schizoid features) provides the most useful description of his behaviour, at least in comparison to the available alternatives. However, as noted in my previous progress report ( dated 16th April 2013), for the purposes of the current assessment it is perhaps only mildly relevant whether these features are considered part of a sub-threshold autism spectrum disorder or further features of his damaged personality structure. The fact remains that [the applicant] is diagnostically complex and these are chronic features of his presentation that have proven to be very resistant to treatment.
Despite my opinion regarding the most appropriate diagnostic category for [the applicant], it is possible that he may eventually receive a diagnosis of autism spectrum disorder that confirms that made by [Dr. H] in 2014. Indeed, the available file information indicates that referrals have been made with the specific purpose of confirming this diagnosis. This is understandable given that the diagnostic label is required in order to access additional services. However, should this eventuate, I would urge [the applicant's] management providers to not disregard the concomitant dependent, borderline, and antisocial features of his personality. As noted above, no diagnostic category, including autism spectrum disorder, adequately conceptualises his behaviour, particularly his aggressive behaviour. I would also note that [the applicant] often uses material described in his various assessment reports as a way of justifying his behaviour and minimising his responsibility. It would be most unfortunate if he uses a diagnosis of autism spectrum disorder in this fashion.
In 2021, [Dr I], a psychiatrist, recorded an impression of "Autistic disorder and comorbid anxiety, and possible intellectual disability". [Dr I] records an opinion that the applicant had the capacity to make immigration decisions, provided interviews are conducted in a way that considers his disabilities.[90] [Dr I] explained:
In particular, patient has deficits in communication that make it slower for him to understand and express information. ; He may need questions to be put to him repeatedly, and be ;gently redirected back to the topic. ; Patience will be required when allowing patient to answer questions, again gently repeating the question if his response does not address it. ; Taking this into account, I would anticipate any interview taking 2-3x longer than for the average detainee; some of this time should be used to give patient breaks if he because distressed or exhausted.
It may be beneficial for patient to have a support person present during any interviews requiring him to make decisions about his immigration status, to assist in managing his anxiety.
[90] IHMS Report: [December] 2021: [Dr I], psychiatrist.
[Dr J], a consultant clinical neuropsychologist, provided a neuropsychological assessment of the applicant in January 2023.[91] That report refers to prior observations that the applicant has a documented history of presentation with feelings of anxiety, a focus on his physical health concerns, a tendency to interpret information very literally and to seek out and require reassurance from authority figures. The report also referred to feedback from Serco staff at the immigration detention centre where the applicant was detained, which was demonstrative that he demonstrated a poor level of self-care, including raising concerns about stains in his room, which may have been faeces.
[91] [Dr J] Report dated 17 January 2023.
The applicant scored from 'low average' to 'very low' on the WAI-IV Index Scores in testing. [Dr J] opined that his WAIS-IV profile was not in keeping with intellectual impairment.
[Dr J] observed that the applicant appeared to have difficulty with boundaries. She observed that conversation was often one-sided, dominated by the applicant and that he had a limited response to social cues. [Dr J] considered that the applicant was intense, particularly when he was trying to make a point. That was accompanied by speech that [Dr J] described as "emphatic, pressured and loud" with increasingly exaggerated responses. [Dr J] observed a tendency for him to interrupt to talk over her, particularly to reintroduce his preferred topic of conversation. [Dr J] also observed that the applicant's responses would shift from a relevant response to, more or less, a stream of consciousness. [Dr J] also remarked that the applicant became unsettled when asked a question that required a yes or no response.
I had the opportunity to observe the applicant in person on three occasions. Whilst I recognise that I do not have the level of. My overall impression of the applicant was consistent with the descriptions of his presentation over time that appear in the various expert reports on this matter. In particular, the observations by [Dr J] that I have referred to in the preceding paragraph are entirely consistent with my impression of the applicant. I agree that he has difficulties with boundaries. He seeks to dominate conversational interactions. Frequently, I had to remind the applicant that he was not to interrupt me while I was asking a question or discussing matters with his representative. The applicant's observance of that instruction was fleeting, and it was common for him to interrupt again before the very next sentence or question was complete.
Country information
Economy
In 2020, the World Bank classified Sri Lanka as a lower middle-income country, downgrading it from upper middle-income status.[92] The services and manufacturing sectors contribute over 90 per cent of Sri Lanka's gross domestic product ('GDP') and employ, respectively, 46 and 30 per cent of the labour force.[93] The agriculture sector employs 24 per cent of the labour force and accounts for 8 per cent of GDP.[94]Tourism and remittances are important sources of national income. Although the tourism industry collapsed due to the impact of the COVID-19 pandemic, foreign arrivals have since returned to pre-pandemic levels.[95] Remittances were the equivalent of 6.2 per cent of GDP in 2021, and their value is expected to rise as more Sri Lankans emigrate in search of economic opportunities.[96]
[92] 'DFAT Country Information Report: Sri Lanka', Department of Foreign Affairs and Trade, 02 May 2024, 20240502102807 ('2024 DFAT Report'), [2.9].
[93] 2024 DFAT Report, [2.9].
[94] 2024 DFAT Report, [2.9].
[95] 2024 DFAT Report, [2.9].
[96] 2024 DFAT Report, [2.9].
In 2022, Sri Lanka experienced the worst economic crisis in its history, resulting in shortages of essential items, lengthy blackouts and hyperinflation.[97] This caused major social and political unrest and resulted in mass protests.[98] Efforts to restore order and stabilise the economy are ongoing with some limited progress having been made.[99]
[97] 2024 DFAT Report, [2.4]; [2.13]-[2.16].
[98] 2024 DFAT Report, [2.4].
[99] 2024 DFAT Report, [2.4]
Sri Lanka’s overall unemployment rate was 5.3 per cent in 2022, although was 26 per cent among those aged 15 to 24.[100] Poverty levels have increased significantly since 2020, and inflation and income losses associated with the economy’s collapse in 2022 have deepened Sri Lankans’ economic vulnerability.[101] The World Bank estimates 10 per cent of the population live close to the poverty line with the poverty rate nearly doubling in 2022 compared to the prior year.[102]
[100] 2024 DFAT Report, [2.10]
[101] 2024 DFAT Report, [2.11].
[102] 2024 DFAT Report, [2.11]-[2.12].
In May 2024, DFAT Reported that:
In-country sources told DFAT the economic situation had stabilised since 2022 and reported: essential items were available; inflation was in single digits; the rupee had appreciated; and power cuts had ended. With recoveries in exports, tourism and remittances, foreign exchange reserves have increased, and the government’s deal with the IMF has unlocked additional funding from the World Bank and other multilateral lenders. Nevertheless, cost-of-living pressures remain pronounced, particularly for low-income households, and general living standards have declined. Austerity measures were aggravating these pressures, for example, electricity prices had increased more than 140 per cent since August 2022. According to the Ceylon Electricity Board, over 500,000 customers had been disconnected from the power grid after failing to pay their bills. While the acute crisis was over, economic conditions remained challenging and the recovery process will likely be long. According to the World Bank, Sri Lanka’s economy contracted by 2.3 per cent in 2023, and as at April 2024 was projected to return moderate growth (2.2 per cent) in 2024, showing signs of stabilisation following severe economic downturn in 2022.
Social Welfare
Sri Lanka has social welfare programs, although welfare programs for the unemployed and those working in the informal economy.[103] 'Aswesuma' commenced in July 2023, replacing an earlier program known as ‘Samurdhi.’[104] In September 2023, Aswesuma extended allowances to over 393,000 families that previously received Samurdhi but did not qualify for Aswesuma, pending an appeal against the selection process.[105] Other cash transfer programs include Disability Benefits.[106] The IMF’s March 2023 bailout program for Sri Lanka included measures to expand welfare. In June 2023, the World Bank approved USD200 million in welfare support.[107]
[103] 2024 DFAT Report, [2.30].
[104] 2024 DFAT Report, [2.30].
[105] 2024 DFAT Report, [2.30].
[106] 2024 DFAT Report, [2.30].
[107] 2024 DFAT Report, [2.33].
Aswesuma assists applicants among four social categories: transitional, vulnerable, poor, and extremely poor. The payments vary between Rs. 2,500 per month (about AUD$12.70) for transitional up to Rs. 15,000 (about AUD$76) per month for persons classified as extremely poor.[108] An additional payment of Rs. 5,000 (about AUD$25.30) is available to persons who qualify for disability payments.[109] The cost of living for a single person in Colombo, without rent, is estimated to be about Rs. 167,000 (around AUD$847).[110]
Returnees to Sri Lanka
[108] “Aswesuma” welfare benefit payment from 01 July, 9 May 2023, Presidential Secretariat of Sri Lanka < “Aswesuma” welfare benefit payment from 01 July, 9 May 2023, Presidential Secretariat of Sri Lanka < Cost of Living in Colombo, August 2024, <>
Between 2010-11 and 2018-19, 3,716 Sri Lankan nationals returned from the Australian community or were removed from Australian onshore immigration detention centres to their country of origin or a third country.[111] Between 2002 and September 2021, the IOM has facilitated the return of 876 Sri Lankans from Australia.[112] Many others returned from the US, Canada, the UK and other European countries.[113]
[111] 'DFAT Country Information Report - Sri Lanka', Department of Foreign Affairs and Trade, 23 December 2021, 20211223094818 ('2021 DFAT Report'), [5.27].
[112] 2021 DFAT Report, [5.27].
[113] 2021 DFAT Report, [5.27].
Refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka.[114] Some voluntary returnees receive reintegration assistance in transport and livelihood support upon return to Sri Lanka from the Government, UN agencies and NGOs, but this requires a returnee to meet strict eligibility guidelines and is minimal.[115] Failed asylum seekers receive limited reintegration assistance.[116]
[114] 2021 DFAT Report, [5.28].
[115] 2021 DFAT Report, [5.28].
[116] 2021 DFAT Report, [5.28].
Many returnees have difficulty finding suitable employment and reliable housing on return.[117] The IOM provides eligible returnees with livelihood assistance and makes regular visits to monitor the welfare of returnees.[118]
[117] 2021 DFAT Report, [5.28].
[118] 2021 DFAT Report, [5.28].
Bureaucratic inefficiencies present a significant challenge to reintegration for returnees. Refugee returnees, particularly those who returned without UNHCR or IOM facilitation, can experience delays in obtaining necessary identification documents and proof of citizenship.[119] Lack of documentation inhibits access to social welfare schemes and the ability to open bank accounts, find employment or enrol in educational institutions.[120]
[119] 2021 DFAT Report, [5.30].
[120] 2021 DFAT Report, [5.30].
DFAT assesses that reintegration issues are not due to failure to obtain asylum, but rather due to the employment and accommodation difficulties returnees may face.[121] Returnees may face financial difficulties reintegrating into their communities but do not experience societal discrimination for seeking asylum elsewhere.[122] Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers.[123] DFAT assesses that returnees face a low risk of societal discrimination upon return to their communities.[124] DFAT further assesses that, where it occurs, surveillance of returnees can contribute to a sense of mistrust of returnees within communities.[125]
Health system
[121] 2021 DFAT Report, [5.30].
[122] 2021 DFAT Report, [5.30].
[123] 2021 DFAT Report, [5.31].
[124] 2021 DFAT Report, [5.32].
[125] 2021 DFAT Report, [5.32].
The public health system is free for all Sri Lankan citizens and medicines can be accessed free of charge from government-run hospitals in all provinces.[126] Colombo has the best health services and outcomes in the country.[127]
[126] 2024 DFAT Report, [2.34].
[127] 2024 DFAT Report, [2.34].
The economic crisis placed unprecedented pressure on the healthcare system, resulting in shortages of medicine and equipment.[128] However, medical shortages have since eased "considerably" with the situation expected to return to normal by the end of 2023.[129] Medication for diabetes, cholesterol, high blood pressure and influenza were widely available and accessible as of May 2024.[130]
[128] 2024 DFAT Report, [2.38].
[129] 2024 DFAT Report, [2.38]
[130] 2024 DFAT Report, [2.39].
DFAT assesses no discrimination based on ethnicity or religion when accessing healthcare in Sri Lanka.[131] DFAT assesses that acute pressures on the health system created by the economic crisis have abated, and shortages of medical items have eased; however, outward migration of medical professionals is impacting the overall capacity of the health system, particularly in rural areas, negatively affecting access to health services.
Mental health
[131] 2024 DFAT Report, [2.41].
In their most recent country information report, DFAT referred to an increase in the prevalence of mental illness following the COVID-19 pandemic and the economic crisis and a survey where over one-quarter of respondents reported someone in their household showing signs of reduced mental health and psychosocial well-being.[132] Schizophrenia and depression were reported as the most prevalent forms of mental illness.[133]
[132] 2024 DFAT Report, [2.42].
[133] 2024 DFAT Report, [2.42].
Mental health services are available in Sri Lanka.[134] Government-run hospitals have mental health units, and medication to treat mental illness is provided free of charge through the public system. The Ministry of Health operates a dedicated mental health hospital – the National Institute of Mental Health (NIMH) – in Colombo. The NIMH treats 8,000 patients annually for a range of mental health issues and provides 24-hour emergency care and outpatient facilities.[135] Several mental health helplines are available, including for suicide prevention and a 24/7, toll-free national helpline managed by the NIMH (also accessible through text message).[136]
[134] 2024 DFAT Report, [2.43].
[135] 2024 DFAT Report, [2.43].
[136] 2024 DFAT Report, [2.44].
Previous stigma towards mental health in Sri Lanka appears to be easing. Previously, DFAT reported in 2021 that stigma has declined considerably in the last fifteen years, and Sri Lankans now access counselling services more freely, where available.[137]
[137] 2021 DFAT Report, [2.27].
The easing of stigma appears to have continued between 2021 and 2024. DFAT reported positive shifts in community attitudes and said people were becoming more willing to discuss mental health.[138] However, negative community attitudes persist and can deter people from being open about their mental health and seeking treatment.[139] People living with mental illness can experience social isolation and bullying and can find it difficult to obtain employment and marry.[140] As a result, in-country sources told DFAT it was common for people to try to hide their mental illness and avoid treatment unless necessary. That said, DFAT also reports that whilst suicide carries some social stigma, families generally receive sympathy and support from their communities.[141]
[138] 2024 DFAT Report, [2.46].
[139] 2024 DFAT Report, [2.46].
[140] 2024 DFAT Report, [2.46].
[141] 2024 DFAT Report, [2.42].
Access to mental health services is available to all Sri Lankans.[142] While social stigma attached to mental illness is not as acute and widespread as it once was, particularly in Colombo and other major urban centres, it continues to deter many people from seeking necessary support.[143] Understanding of the causes of mental illness can be limited.[144] Mental illness is sometimes attributed to black magic and curses. Some families seek traditional methods to ‘cure’ mental illness, including by local healers.[145]
Other relevant country information
[142] 2024 DFAT Report, [2.47].
[143] 2024 DFAT Report, [2.47].
[144] 2021 DFAT Report, [2.27].
[145] 2021 DFAT Report, [2.28].
Unsuccessful asylum seekers, both those subject to removal or departing voluntarily, are returned to Sri Lanka either using commercial or charter flights.[146] In some cases, they may be accompanied by security escorts. On arrival in Colombo, returnees will be presented to Sri Lankan Immigration, and the Chief Immigration Officer will interview them.[147]
[146] 2021 DFAT Report, [5.17].
[147] 2021 DFAT Report, [5.17].
Depending on the circumstances of their departure from Sri Lanka and their personal history, they may be interviewed by other agencies who check the immigration databases, intelligence databases, and records of outstanding criminal matters.[148]
[148] 2021 DFAT Report, [5.17].
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity.[149] This would identify someone trying to conceal a criminal or terrorist background or avoid court orders or arrest warrants.[150] This often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records.[151] DFAT is unaware of detainees being subjected to mistreatment during processing at the airport.[152]
[149] 2021 DFAT Report, [5.20].
[150] 2021 DFAT Report, [5.20].
[151] 2021 DFAT Report, [5.20].
[152] 2021 DFAT Report, [5.20].
Sri Lankan law prohibits arbitrary arrest and detention.[153] Yet, local and international sources claim that arbitrary arrests have occurred in the last few years.[154] I further note that criminal groups operate in Sri Lanka and are involved in the drug trade.[155] It is common for organised criminal figures to extort, blackmail or threaten businesspeople.[156]
[153] 2021 DFAT Report, [4.19].
[154] 2021 DFAT Report, [4.19].
[155] 2024 DFAT Report, [2.73].
[156] 2024 DFAT Report, [2.73].
Does the applicant face a real chance of serious harm?
In determining this application, I have placed significant weight on the evidence in [Dr. F]'s and [Dr. G’s] reports. Their evidence demonstrates that the applicant has a complex combination of psychological, neurological, and intellectual challenges that significantly impair his functioning.
[Dr F] identifies longstanding social awareness and communication difficulties, which appear to have substantially interfered with every aspect of the applicant’s life—from schooling to employment. These deficits have hindered his ability to form meaningful relationships and maintain employment, as evidenced by his struggles in the [work sector], where he found it difficult to remember orders and instructions and to multitask.
[Dr G] observed the applicant to display a highly unusual style of information processing and communication, suggesting possible brain damage. His diagnostic evaluations revealed that the applicant scored highly on impression management scales, indicating a tendency to present himself in an overly favourable light, which I appreciate complicates the assessment of his true cognitive and psychological state. Despite this, [Dr G] noted the applicant’s emotional immaturity, poor judgment, low intellectual functioning, and lack of insight into his offending behaviour. These findings are consistent with [Dr F]’s observations and underscore the chronic nature of the applicant’s impairments.
[Dr G] offered a diagnosis of mixed personality disorder. [Dr G] emphasised that the applicant’s behaviour, particularly his aggressive tendencies, cannot be fully explained by a diagnosis of ASD alone. Instead, [Dr G] opines his behaviour results from a damaged personality structure that has proven resistant to treatment. As noted by [Dr G], the complexity of the applicant's functioning is further compounded by an observed tendency to use his diagnoses to justify his actions and minimise responsibility for his actions. Further, [Dr G] opines that the applicant’s presentation is marked by a lack of empathy and entrenched self-centeredness, which have been consistently observed throughout his interactions with various professionals, including at the hearing before the Tribunal.
I accept that the applicant’s very complex psychological profile, which includes ASD, ADHD and his cognitive impairments and personality disorder, would increase the difficulties he would face in a country where social services and healthcare are limited and often strained. The consequential behavioural issues stemming from the applicant's complex psychological profile, particularly his impulsivity (arising from his ADHD), lack of adequate or functional social skills of any sort and lack of insight, would likely invite substantial adverse, and negative, attention in a society where mental health issues are poorly understood and stigmatized such as Sri Lanka. The applicant's complex presentation and demeanour is very likely to be misunderstood. The general population in Sri Lanka are not likely to understand that the aggression, impatience or constant interrupting are a feature of the applicant's complex psychological condition. Rather, the applicant will just be perceived as being an excessively rude, arrogant, insolent and aggressive individual to most people. This could result in him being targeted or discriminated against, further increasing his risk of harm.
I find that the applicant’s complex psychological profile significantly increases his vulnerability if he were to return to Sri Lanka. That is unlikely to ever change.
The applicant has previously been either reluctant to, or unwilling to, take medications designed to treat his anxiety for a long enough period for them to be effective. If he is returned to Sri Lanka, I am satisfied that he will disengage from all forms of treatment and refuse medication. These are likely to increase his risk of harm.
I am further satisfied and find that if returned to Sri Lanka the applicant will not willingly access the mental health care that might be available to him. I find that is because he subjectively considers that he does not require such care. That decision, however, would be made because of the applicant's psychological profile and comorbidities, not despite them. I find that the applicant would have, practically, a complete absence of psychological care and support unless he is involuntarily subjected to such treatment. The absence of such care increases the risk that the applicant would face serious harm on return. The prospect of involuntary treatment is not likely to occur, in my view, until after the point had reached where the applicant had experienced serious harm for some period of time.
Whilst I accept that assistance for people with the applicant's profile is somewhat available in Sri Lanka, I consider it is limited and I am not satisfied that he would be able to access that assistance. The applicant is destitute. He is reliant on the Australian government to provide for his needs at present. If he were to return to Sri Lanka, he would have to either earn a sufficient sum to support himself and obtain assistance for him or rely on his family to support him.
I further find that the applicant's diminished cognitive abilities make him more susceptible to exploitation and abuse. That is particularly relevant because one of the ways people in Sri Lanka will seek to supplement their own support themselves is by accessing loans from unregistered money lenders. The applicant would be particularly open to exploitation from such individuals if he considered he was in need of money, a prospect that I regard as being very likely.
The applicant has, historically, been cared for with the assistance of his father, by prison authorities or by the Commonwealth whilst he has been in immigration detention. His father is now [Age] years old. He has previously been diagnosed with [cancer] which is presently in remission. Despite his own health concerns, he continues to work. He consults a specialist in oncology every six months. He is, himself, supported in his living by his older son. His father's evidence, which there is no basis to reject, is that he cannot afford to support the applicant in Sri Lanka. His father expended most of his savings on legal representation and advice in respect of the applicant.
I am satisfied that the applicant would require a high level of care to live independently. I also find that he is unlikely to be able to properly care for himself if he is returned to Sri Lanka. At present, the immigration detention centre provides for his day-to-day needs. If he were returned to Sri Lanka, that assistance would have to involve either the applicant being unsupported entirely, his father supporting him, or professional assistance in Sri Lanka.
The applicant's father holds a genuine belief that his son will not be able to survive in Sri Lanka. It is surprising that he would say that if the applicant were returned to Sri Lanka that his return to Sri Lanka would be "only option". That despite his view that he himself cannot practically return to Sri Lanka and that it would compromise his own health care. The applicant's father could not sensibly be expected to say that he would leave his son to die on his own in Sri Lanka. Whilst there is some concession that the applicant's father would return to Sri Lanka to care for him, in my view that cannot be guaranteed. His health may deteriorate further before he can return. Moreover, even if he were to return my assessment is that his ability to provide the level of care that the applicant requires is likely to be limited. He is advancing in age and has his own health concerns. Providing high level care to the applicant is only going to get harder for him with his advancing age. I cannot be satisfied that even if the applicant's father was able to provide care for his son in the immediate future, I am not satisfied that it will remain that way for the foreseeable future.
I am satisfied that the applicant will require a high level of support to manage his daily life if he is no longer in detention. In my view, the applicant is unlikely to be able to practically access that support in Sri Lanka. The applicant cannot afford professional assistance in Sri Lanka, and I am not satisfied that the state would provide him with a sufficient level of assistance.
Whilst I am not satisfied that the applicant is unable to speak Sinhalese, I accept that his Sinhalese language abilities are likely less developed and sophisticated than most people who have spoken that as their primary language. I am satisfied that he will experience some impediments in his communication with people in that language. Having regard to my other findings about the applicant's manner of communicating, this exacerbates the risk to him.
I accept that the applicant will find day-to-day interactions with people difficult to manage. His manner and presentation will likely make it difficult for him to access basic services and employment. People will misunderstand his intentions and impute him to be an aggressive person.
The applicant is an intense, loud, individual. He is forceful in ensuring that his point is made and heard. That has been an ever-present aspect of the applicant's personality. It is not likely to change, nor could I require it to change. Notwithstanding the availability of medical reports about the applicant's presentation and underlying conditions, I found it a difficult and frustrating process to engage with the applicant. He was largely unresponsive to questions. He would frequently talk over me. He would interrupt and raise irrelevant matters or matters that had already been discussed and he has been directed to put to one side so that we could proceed with the hearing.
I have no doubt the applicant would present in a similar way if he was returned to Sri Lanka. The people who he encounters in Sri Lanka are, however, not likely to have the same level of insight into the reason for the applicant's presentation. In my view, he is likely to be perceived as aggressive, obtuse and insolent. He will, in my view, present that way in most, if not all, of his day-to-day encounters in Sri Lanka.
Moreover, because any harm caused to him by other persons in Sri Lanka would be in response to his manner, I consider that it is likely that the Sri Lankan authorities would not be able to provide the applicant with adequate protection. In seeking protection, the applicant would likely come across as insulting and aggressive towards Sri Lankan police. In view of the country information about Sri Lankan police[157] I have very real doubt that they would respond to his complaints effectively. Indeed, in seeking protection the applicant may act in such a way that causes the Sri Lankan police to themselves harm him. I consider that they would likely refuse him protection.
[157] 2024 DFAT Report, [5.1], [5.7]-[5.13], [5.24]-[5.25].
Despite the applicant's claims that he will be able to be employed (in Australia), it is clear to me that the applicant has no real prospects of employment either in Australia or Sri Lanka. His incarceration and subsequent detention means he has no real skills or experience to rely on. Previously, the applicant has struggled to obtain and keep a job. His inability to obtain, let alone keep, work in the [work sector] prior to his lengthy period of incarceration and subsequent detention does not engender confidence of his ability to obtain employment in the future whether in Australia or Sri Lanka. Whilst the applicant is hopeful that he can obtain a job in Australia, that hope is not likely to materialise and is unrealistic.
The applicant will not be able to obtain employment, let alone remain in employment. The reason for that is that I am satisfied with his neurological and psychological functioning, which manifests in the way he presents and interacts with people. I am satisfied that he will be denied the capacity to earn a livelihood of any kind and that denial will threaten his capacity to subsist.
Whilst I recognise that social welfare is available in Sri Lanka, I am not satisfied that the applicant could meaningfully access it. The applicant has no, or at least insufficient, understanding and ability to manage his own health or access appropriate care. Moreover, I am not satisfied that he has the capacity to access such care or that those dealing with him would have the patience required to enable him to obtain it as a matter of fact. I am not satisfied that the applicant's father would be able to provide sufficient financial support into the reasonably foreseeable future if the applicant were returned to Sri Lanka such that he would avoid being unable to subsist.
Based on country information, I am satisfied that the applicant faces a real chance of being interviewed at the airport as he will be returning on a temporary travel document. Part of that interview will involve ascertaining whether the applicant has a criminal history, and the authorities may have already gathered information about whether the applicant has a criminal background. In view of the applicant's tendency to minimise responsibility for his offending, there is a real chance that the applicant may be perceived to be evasive or attempting to conceal aspects of his past. Moreover, the prospect of those authorities misinterpreting the applicant's demeanour and responses during those interviews may lead to his being detained or harmed.
The applicant will be returning on a temporary travel document so will be, at least, of some interest to authorities. The applicant experiences great difficulty answering questions. He presents as insolent and belligerent when being asked, and responding to, questions. He will present a significant challenge for authorities at the airport. Arbitrary arrest and detention occur in Sri Lanka.[158] There were 919 complaints of arbitrary arrest in 2022.[159] Whilst I recognise that DFAT is not aware of failed asylum seekers being subjected to mistreatment during processing at Colombo Airport, in view of the broader country information about arbitrary arrests and the insolent and belligerent manner in which the applicant is likely to act when being processed by immigration I am of the view that the risk to him is significantly elevated above that of other Sri Lankan returnees and failed asylum seekers.
[158] 2024 DFAT Report, [4.32].
[159] 2024 DFAT Report, [4.32].
For these reasons, I am satisfied that if the applicant were returned to Sri Lanka now or in the reasonably foreseeable future, he would face a chance of significant physical harassment or ill-treatment, economic hardship that would threaten his capacity to subsist, and denial of access to basic services or the capacity to earn a livelihood that would threaten his capacity to subsist.
To involve a real chance of serious harm, a finding is not required on the balance of probabilities. If the chance of harm can properly be described as 'remote', then it is a real chance. I do not accept that the chance the applicant experiencing serious harm is 'remote'. In those circumstances, I must accept that the chance is a real chance.
I find that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future if he were returned to Sri Lanka.
Is the persecution feared for the essential and significant reason of the applicant's race, religion, nationality, membership of a particular social group or political opinion?
The conclusion that the applicant faces a real chance of serious harm does not of itself more is required. I must also find that the persecution of the applicant would be for the essential and significant reason of one or more of his race, religion, nationality, membership of a particular social group or political opinion.
The definition of particular social group should be interpreted broadly.[160] In this case it is submitted that the harm faced by the applicant is for the essential and significant reason of his membership of a particular social group. That particular social group is articulated as "persons with significantly impaired functioning, manifesting as a clear and obvious inability to properly participate in, or integrate with, civil society and do not conform to societal expectations of standards of appropriate behaviour".
[160] Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293.
The requirements that must be demonstrated to establish membership of a particular social group are set out in s 5L of the Act. It requires consideration of a characteristic that the applicant has, or is perceived to have, and shares with other members of the group. The characteristic must distinguish the group from society, be an innate or immutable characteristic or be so fundamental to applicant's identity or conscience that they should not be forced to renounce it. The characteristic must not be a fear of persecution.
I am satisfied that the stated particular social group satisfies s 5L of the Act. I reach that conclusion because:
(a)persons suffering from significantly impaired functioning, manifesting as a clear and obvious inability to properly participate in, or integrate with, civil society and do not conform to societal expectations of standards of appropriate behaviour is a characteristic which can, and would be, shared by each member of the group and therefore s 5L(a) of the Act is made out;
(b)the applicant shares the characteristic of suffering from significantly impaired functioning, manifesting as a clear and obvious inability to properly participate in, or integrate with, civil society and do not conform to societal expectations of standards of appropriate behaviour, accordingly s 5L(b) is made out; and
(c)s 5L(c), which expresses three alternatives, is made out because the characteristic is innate or immutable or alternatively fundamental to his identity or conscience. Insofar as the applicant is concerned, the characteristic is a consequence of his psychological, neurological and intellectual difficulties;[161]
(d)the characteristic is not a fear of persecution, accordingly s 5L(d) is made out.
[161] I note that people may share the characteristic identified above, but the characteristic may not always be one which is properly characterised on the evidence as being innate or immutable or fundamental to their identity or conscience.
The harm which I have identified the applicant as facing a real chance of experiencing is, in my assessment, persecution which is for the essential and significant reason of his membership of a particular social group comprising people who are suffering from significantly impaired functioning, manifesting as a clear and obvious inability to properly participate in, or integrate with, civil society and do not conform to societal expectations of standards of appropriate behaviour.
His membership of that particular social group is, and would be, the reason for the applicant facing a real chance of experiencing significant physical harassment or ill-treatment, economic hardship which threatens his capacity to subsist and being denied access to basic services or the capacity to earn a livelihood which will threaten his capacity to subsist. His membership of that particular social group would be one of the essential and significant reasons for the harm that he faces a real chance of experiencing.
In the circumstances I am satisfied that the applicant faces a real chance of serious harm and I am satisfied that it is for the essential and significant reason of the applicant's membership of a particular social group.
Does the harm involve systematic and discriminatory conduct?
The harm feared by the applicant in Sri Lanka involves systematic and discriminatory conduct that targets individuals with mental health issues and cognitive disabilities, such as those suffered by the applicant. In Sri Lanka, there is significant evidence that individuals with mental and intellectual impairments face widespread discrimination and social exclusion. This is particularly pronounced in rural areas, where access to mental health services is limited, and societal attitudes toward mental illness are often steeped in stigma and misunderstanding.
The systematic nature of this discrimination involves societal stigma and a lack of appropriate understanding by state authorities in relation to impairment arising from mental and intellectual impairments. They do not involve isolated incidents and are widespread and consistent over time. In the applicant’s case, the lack of adequate social support, employment support, potential inability to access infrastructure for treating mental health conditions, coupled with societal prejudice against those with intellectual impairment, creates an environment where the applicant is at constant risk. Furthermore, the conduct is discriminatory because it targets individuals based on their mental and cognitive impairments, treating them as inferior or unworthy of the same protections afforded to others. The applicant’s intellectual disability and mental health issues make him part of a vulnerable group that is systematically marginalized and denied basic rights, including access to adequate medical care and social support. This discrimination is not only societal but also institutional, as evidenced by the inadequate governmental policies and resources allocated to mental health care, which disproportionately affect those with the most severe conditions, like the applicant.
Given these factors, I find that the persecution involves systematic and discriminatory conduct.
Does the harm relate to all areas of the country?
I accept that the harm faced by the applicant relates to the whole of Sri Lanka. There is, in my assessment, no place where the applicant could go such that the chance of him experiencing serious harm can be found to be remote. I am not satisfied on the available country information that there is any place where the applicant could go where he would not face a real chance of serious harm.
Can the applicant modify his behaviour?
I am satisfied that section 5J(3) does not apply to the applicant as any requirement would be impermissible having regard to the operation of s 5J(3)(iv).
Are effective protection measures available?
In view of the societal attitudes towards persons who are psychologically and intellectually impaired, I do not accept that effective protection measures are available. Indeed, when seeking to access any such protection the applicant would likely be refused protection because of the way in which he presents which, as I have explained, is not a deliberate choice by him but is a manifestation of his condition.
I find that effective protection measures, within the meaning of s 5L of the Act, are not available to the applicant.
The applicant satisfies the refugee criterion for protection
CONCLUSION
For the above reasons, I am satisfied that the applicant has a well-founded fear of persecution and is a refugee within the meaning of the Act. I am satisfied that the applicant satisfies s 36(2)(a) of the Act.
In those circumstances, it is not necessary to make an assessment in respect of s 36(2)(aa) of the Act.
Section 36(1C) assessment required
My conclusion that the applicant satisfies s 36(2)(a) of the Act does not necessarily mean that the applicant will be granted a protection visa. The applicant's representative conceded, correctly in my view, that the applicant must still satisfy s 36(1C) of the Act before he can be granted a protection visa. That question is not before me and I make no conclusions in relation to it.
DECISION
The Tribunal sets aside the decision of the delegate and remits the application for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.
The Tribunal notes that an assessment in respect of s 36(1C) of the Act is required in respect of the applicant.
Fraser Robertson
MemberATTACHMENT – 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
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Statutory Construction
-
Procedural Fairness
-
Appeal
-
Jurisdiction
-
Remedies
0
4
0