2409571 (Refugee)

[2024] AATA 3531

2409571 (Refugee) [2024] AATA 3531 (17 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Toniey Munro

CASE NUMBER:  2409571

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Adrienne Anderson

DATE:17 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 17 July 2024 at 12:30pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – particular social group – Tamil women – sexual assault by CID – sexual violence – fear of detention – internal relocation – travel to third countries – mental health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 499
Migration Regulations 1994, Schedule 2

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Sri Lanka, applied for the visa on 25 January 2024. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection by Australia.  

3. The applicant appeared before the Tribunal on 12 July 2024 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.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. 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.

7. 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).

8. 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.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), they 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 they 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

10. 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.

11. The most recent DFAT report in respect of Sri Lanka was published on 2 May 2024. Where relevant to the applicant’s claims it is discussed below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant has a well-founded fear of persecution on return to Sri Lanka or whether there is a real risk of significant harm if the applicant is removed from Australia to Sri Lanka. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Applicant’s personal background

13. The applicant is [an age]-year-old woman of Tamil ethnicity and Hindu religion. She was born in [Town 1], Batticaloa district[1] and grew up in [Town 2], [in Eastern Province]. She has [specified family members], all of whom still reside in [Town 2], as do the applicant’s parents.

    [1] The applicant’s date and and place of birth are confirmed by her identity documents and were accepted by the delegate.

14. The applicant is estranged from her husband [named], who she married in 2011. They have a son, [named], who is [age] years old. The Tribunal notes that the applicant’s marriage and son’s birth are confirmed in documents she provided.[2] The applicant’s son lives with his father in [Eastern Province].

    [2] See paragraph [18] of this decision noting the applicant provided English translations of her marriage certificate and her son’s birth certificate.  

15. The applicant completed her high school education up to [grade] in Sri Lanka. She was a homemaker and shop owner prior to coming to Australia.

16. Departmental records confirm the applicant travelled to Australia using a [Country 1] passport issued in another name and entered Australia without a visa [in] January 2024.

17. She was not immigration cleared and has been in immigration detention since [January] 2024. She applied for a Safe Haven Enterprise Visa on 25 January 2024.

    Applicant’s claims for protection

    Evidence before the Department

18. Material provided by the applicant to the Department in support of her visa application included:

    a.Statements dated 10 February 2024 and 25 March 2024;

    b.Submissions from her current representatives dated 10 February 2024 and 2 April 2024;

    c.Copy of Sri Lankan national ID card and English translation;

    d.Photograph of the biodata page of the applicant’s Sri Lankan passport issued [in] 2022;

    e.English translation of the applicant’s birth certificate;

    f.English translation of marriage certificate between the applicant and her husband;

    g.English translation of her son’s birth certificate;

    h.Photographs described as stills from video of CID visits, dated [two days in] January 2024;

    i.Photograph captioned ‘Shop front picture’;

    j.Undated letter from [Lawyer A], lawyer in Sri Lanka, recounting the applicant’s treatment in Sri Lanka;

    k.Untranslated document titled ‘police complaint’, dated [in] January 2024;

    l.Two articles on memory and the impact of trauma;

    m.Decision 2311589 (Refugee) [2023] AATA 4431 (10 October 2023);

    n.Several hundred pages of country information about Sri Lanka.

19. In her pre-interview statement of 10 February 2024, the applicant states that she fears persecution in Sri Lanka because she is a Tamil woman who has been sexually assaulted and raped by agents of the Sri Lankan authorities including Criminal Investigation Department (CID) officers. Specifically, she fears being detained, interrogated, tortured, sexually assaulted, raped or killed by the Sri Lankan authorities. She fears suffering from significant economic hardship and the denial of basic services such that she cannot support herself or her son because she will be targeted by the Sri Lankan authorities. She also fears being ostracised from her family and community because she is a victim of sexual abuse and rape. She is further at risk of harm as a failed asylum seeker returning to Sri Lanka from a western country, having used a false passport to travel to Australia.  

20. The applicant claims that from mid-late 2021 until her departure from Sri Lanka in early 2024, she was repeatedly sexually assaulted by CID officers in [Town 2] after she and her husband opened their own general grocery store. The store was attached to her family home, which was next door to where her parents live. Local CID officers visited the store, claiming to be investigating the applicant and her store. One evening CID officers filmed the applicant in the bathroom while she was naked.

21. A few days after this, CID officers requested that she attend a house for further enquiries about the store. [Number] CID officers took turns beating and sexually assaulting the applicant. They recorded the assaults.

22. After this, the CID officers began visiting the applicant’s shop frequently. At times, they asked the applicant’s brother and husband to leave the house so they could carry out their inquiries. Instead, they sexually assaulted and raped the applicant. At times this occurred at other locations and continued until the applicant left Sri Lanka.

23. In about May 2022 the applicant’s husband separated from her because of the risk to his safety. He went to live at his parents’ home, about a 30-minute drive from the applicant’s home.

24. Also in 2022, the applicant attempted suicide. She also made attempts to relocate to Colombo and Batticaloa but always returned home because her family would be threatened with harm or imprisonment if she did not return. In 2022, the applicant tried to leave Sri Lanka. She states that she left on her (first) Sri Lankan passport to another (unknown) country, from which she attempted to reach [Country 2] by boat. The boat was intercepted near [Country 3] and towed there. Following her return to Sri Lanka from [Country 3], the applicant claims she was interrogated about her travel attempt and that in her hometown the abuse from the CID officers became more violent and frequent. They beat her and burnt her with cigarette butts and came 2-3 times a week to assault her. 

25. The applicant claims that she tried to make visa applications to [Country 4] and [Country 2] using an agent. She did not receive any documents or evidence of the applications but was informed that the applications were rejected.

26. The applicant states that she did not seek medical attention or report what was happening to the authorities because the CID officers threatened to hurt or kill her son if she did so. She did not believe the authorities would help because she is Tamil and because she was being harmed by the authorities. CID officers also threatened the applicant’s family members to prevent them from making complaints or reports to the authorities. They threatened to file false drug cases against them and imprison them. The CID officers also beat the applicant’s husband and [brother].

27. The applicant claims that since arriving in Australia, the CID officers have continued to threaten her relatives and search for the applicant. In January 2024 the applicant’s husband made a complaint to the [Town 2] police station about threats to kidnap the applicant’s son. The police did not take any action in response to this report.

28. The departmental file indicates the applicant was interviewed by the delegate on 28 February 2024. The delegate’s decision records that after the interview, on 5 March 2024, she sent a letter under s 57 of the Act inviting the applicant to comment on information identified as inconsistent with information provided in her visa application. The delegate stated that the information would be the reason, or part of the reason, that the visa may be refused. It included as follows:

    a.A letter from ‘[Employer 1]’ provided by the applicant in support of a Visitor (Tourist) (subclass 600) visa application, lodged on 17 January 2023, stating that the applicant was employed there from April 2019 until at least early 2023;

    b.The subclass 600 visa application stated that [Employer 1] was located in Colombo, that the applicant worked there as manager and began working there in April 2017. This was identified to be inconsistent with information in the SHEV application and at interview that she had only ever worked at the grocery store at her home in [Eastern Province];

    c.The subclass 600 visa application also stated that she was born in [Town 1], had never been married and had no family members in Sri Lanka.

29. On 2 April 2024, the applicant responded to the above, stating that an agent made applications on her behalf to other countries, including Australia, and that the applicant did not know what was said or included in the application. The applicant’s response also provided an update on her circumstances since the interview of 28 February 2024, noting that she had heard from her brother that the authorities had visited the applicant’s parent’s home in early March 2024 looking for the applicant and that following this the applicant’s husband had taken their son into his care.

30. In her decision record, of which the applicant was notified on 22 April 2024, the delegate did not accept any of the applicant’s claims to be true. While the delegate accepted the applicant’s identity to be as claimed, the delegate considered that the applicant’s use of social media aliases and the contradictory information provided by the applicant in the subclass 600 visa application undermined her credibility. The delegate did not accept the applicant’s explanation that she was unaware of the contents of any visa applications made on her behalf because it was unlikely that she and her relatives would have spent large sums of money on these applications without seeing evidence of them.

31. The delegate found it significant that the applicant had not provided any corroborative evidence of her claims to have been sexually assaulted by CID officers and considered the failure of the applicant’s family members to attempt to prevent the assaults, intervene during the assaults, or gather audio or video evidence of the assaults cast significant doubt on her claims. The delegate considered that given the prolonged period for which the applicant claimed to have suffered the abuse, her failure to take voice recordings of threats being issued, photos of injuries, or to set up hidden cameras to record the sexual assaults and the ongoing harassment of her family members rendered her claims implausible. The delegate thought that the documents provided by the applicant, namely the letter from [Lawyer A] and her husband’s police complaint, detracted from the credibility of her claims because they highlighted the absence of actual evidence of the claimed experiences.

32. The delegate’s decision records that she considered it illogical that the applicant would leave her child with her parents believing they would protect him when they had failed to protect her and that the applicant’s post-interview update that her son was now living with his father was provided to mitigate the delegate’s doubt in this regard.

33. The delegate further considered that the applicant’s failure to seek protection or otherwise remain in any of the countries she travelled to during her attempts to leave Sri Lanka was inconsistent with a genuine fear of harm.

    Evidence before the Tribunal

34. The Tribunal has listened to the audio recording of the departmental interview and has had regard to the material on the departmental file relating to the protection visa application, including a copy of the applicant’s subclass 600 visa application and the material listed above at paragraph [18]. The applicant also provided the Tribunal the following:

    a.Statement dated 5 July 2024;

    b.Health Assessment Summary by [Social Worker A], of [Agency 1], dated 3 June 2024;

    c.Submissions dated 5 July 2024;

    d.Copies of three Tribunal decisions:

    i.2311589 (Refugee) [2023] AATA 4431 (10 October 2023);

    ii.2313648 (Refugee) [2023] AATA 4770 (14 November 2023); and

    iii.2311207 (Refugee) [2023] AATA 4591 (1 November 2023);

    e.Bundle of country information (containing over 1200 pages of information on the political, economic and human rights situation in Sri Lanka).

35. The applicant’s statement of 5 July 2024 provided an update on the applicant’s circumstances and addressed the delegate’s credibility concerns, including the subclass 600 visitor visa application to Australia, her travel to third countries and the lack of corroborative evidence in support of her claims. On the latter point, the applicant explained that she was not in the mindset to build evidence against the CID officers and that they would not have been able to use the evidence even if it was collected because the authorities would not have taken action against CID officers. She stated that if she had tried to do so it would have placed herself and her family members in greater danger.

36. In relation to the visitor visa application the applicant stated that she had applied because she was trying everything she could to escape Sri Lanka. She provided the agent with her passport and bank statements but the rest of the application was done by the agent on her behalf and was lodged without her review. On the matter of the applicant’s travel to third countries, the applicant stated that she did not apply for protection because she was not sure if she could stay in those countries and that she believed she should follow the advice of the agent who knew what was best in order to find her a safe place.

37. With respect to the applicant’s updated circumstances, the statement describes visits by CID officers to the applicant’s family home in March and April 2024. During the April 2024 visit, the applicant’s brother was beaten until he told the officers that the applicant was in Australia and gave them her phone number. The applicant changed her phone number and her contact with her brother, once infrequent, is now non-existent. She has intermittent contact with her estranged husband to check on her son. 

38. At hearing, the applicant gave oral evidence about her background, her attempts to leave Sri Lanka and relocate within Sri Lanka, her reasons for leaving Sri Lanka and her fears if she were to return there. The evidence given at hearing was consistent with her earlier statements. Relevant additional points of evidence provided to clarify or answer the Tribunal’s questions include and are summarised as follows:

    a.The applicant has relatives on both sides of her family residing in Batticaloa, but they have never been in close contact. The applicant’s parents had a love marriage which has meant that they do not talk often to their relatives and do not see them;

    b.The applicant and her husband opened their shop because it would put them in a better financial situation and allow them to lead happier lives;

    c.When the CID officers began to visit the store, the applicant knew they were CID because she had seen them working in her home area before. They had come to the applicant’s area on previous occasions when there had been trouble;

    d.The first time the applicant left Sri Lanka, the first country she went to was [Country 5]. She had previously been unable to recall what country it was. From [Country 5] she took a boat to [Country 2] which was intercepted and the applicant and the over 300 other passengers were taken to [Country 3];

    e.In [Country 3], they were all housed in a camp from which they were not permitted to come and go. The applicant was not sure of the extent of the authorities’ involvement in her return to Sri Lanka, but she did not think she was allowed to stay there. IOM arranged for the applicant and the other boat passengers to return to Sri Lanka and assured them they would not have problems on return;

    f.At the airport on her return, the applicant was questioned by the authorities at the airport who asked questions about how the applicant had travelled out of Sri Lanka and the agents she used. They informed the CID in the applicant’s village, telling them that she was returning;

    g.The applicant did not immediately return. She stayed in Colombo but returned to her family home after she heard that the CID officers were making threats against her son. When she returned, they came to her house and questioned her about leaving. They sexually assaulted her and burnt her with cigarettes;

    h.The applicant’s son moved to live with his father because he was too terrified to stay with the applicant’s parents. He had witnessed assaults against his uncle, the applicant’s brother;

    i.The applicant spoke to her estranged husband a week or two before the hearing. He told her that he wanted to divorce her and marry someone else. The applicant considers that her husband was meant to protect her, and he did not do that;

    j.When the applicant was trying to leave Sri Lanka, her mental health was very bad. She was not in the state of mind to ask for evidence of the applications or to review them. She left the arrangements to her husband and brother and tried to stay out of it to protect her health;

    k.The applicant fears that if she returned to Sri Lanka the government authorities would inform the CID officers from her home area as soon as she arrives. Wherever she goes, they will threaten her family and try to blackmail her to get her to return to her home. They would continue to abuse her, and the applicant cannot face that abuse again.

    Country of nationality

1. The applicant claims to be a Sri Lankan national who departed Sri Lanka with the assistance of people smugglers on a genuinely issued passport in her own name, but that the smugglers took her Sri Lankan passport and gave her a false passport in a third country for use to travel to Australia. As mentioned above, the delegate’s decision records that the applicant arrived in Australia [in] January 2024 by plane on a [Country 1] passport.

2. The applicant provided the Department copies of her Sri Lankan national identity card and birth certificate. The delegate accepted the applicant’s identity as a Sri Lankan national. 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.

   Findings of fact 

3. The Tribunal found the applicant’s evidence at hearing both internally coherent and consistent with her previous evidence. The applicant’s account accords with independent country information cited below indicating the targeting of Tamil women and girls for sexual exploitation and violence by Sri Lankan authorities, including the police, both during and after the Sri Lankan civil war.

4. The applicant’s evidence is also consistent with medical evidence provided to the Tribunal. The report by [Agency 1] dated 3 June 2024 notes that the applicant was referred to their service by [Agency 2] on 5 February 2024 for symptoms including torture and trauma memories, somatic symptoms, sleep disturbance, excessive rumination, loss and grief, depression-related symptoms and suspiciousness.

5. At the date of the report, the applicant had attended six counselling sessions. The report includes the applicant’s history, including that she was subjected to multiple instances of sexual assault and rape, including gang rape, that she attempted suicide in Sri Lanka by ingesting insecticide, and that she was beaten and burnt with cigarettes. The report records that in one session, the applicant showed the report’s author multiple scars from cuts and cigarette burns on her legs, arms, and upper thighs.

6. The report concludes that the applicant exhibits trauma-related symptoms consistent with experiences of sexual violence and gender-based violence and that she presents with significant depressive symptoms that severely impact her psychosocial functioning.

7. Having considered the applicant’s evidence throughout the visa application process, including the consistent and coherent account given before the Tribunal, the Tribunal does not share the delegate’s credibility concerns. The Tribunal finds the applicant’s claims credible and her evidence in relation to those concerns logical and reliable.

8. With respect to the inconsistent information and the employer letter provided in the subclass 600 visa application, the Tribunal accepts that in the circumstances the applicant faced a choice of engaging an agent to facilitate her departure from Sri Lanka, howsoever that was achieved, or remaining in Sri Lanka where she was experiencing frequent and serious sexual violence at the hands of members of the police force. The Tribunal also accepts the applicant’s evidence that due to the state of her mental health and lack of knowledge of her options, she felt she had no choice other than to follow the agents’ instructions once in the countries of transit in order to reach a place of safety. In any event, the Tribunal notes that the applicant had no real opportunity to seek protection or otherwise remain in other countries prior to her arrival in Australia given that none of the countries she travelled to –[including Country 5], and [Country 3] – are signatories to the Refugee Convention[3] or possessed with functioning policy or legal protection frameworks.[4]

   [3] UN Treaty Depository, Status of Convention relating to the Status of Refugees, as of 16 July 2024, < [Sources deleted.]

9. On the evidence before it, the Tribunal accepts that the applicant was subjected to serious sexual violence perpetrated by CID officers over a prolonged period between mid or late 2021 until her departure from Sri Lanka in January 2024. The Tribunal accepts that the applicant sought to escape the abuse on multiple occasions both within Sri Lanka and by travelling to third countries, including an attempt to travel to [Country 2] by boat which resulted in the applicant being returned from [Country 3] to Sri Lanka.

10. The Tribunal accepts that on return to Sri Lanka from [Country 3] the applicant came to the attention of the Sri Lankan authorities and that the abuse from CID officers escalated in severity and frequency on her return. The Tribunal also accepts that in the applicant’s absence the applicant’s family are being harassed by CID officers who continue to search for the applicant and have visited the applicant’s family as recently as April 2024.  

11. The Tribunal accepts that the applicant is a single mother who is estranged from her husband, that her husband has recently indicated an intention to divorce her, that she has mental health concerns, and that the applicant’s only real source of family support and other networks lie in her home area of [Town 2], [Eastern Province].

    Assessment of claims

12. The Tribunal finds that, in the applicant’s circumstances outlined above, the applicant faces a real chance of serious harm on return to Sri Lanka, now or in the reasonably foreseeable future. Central to this assessment is the following information on the situation in Sri Lanka for Tamil women after the civil war.  

13. A decision of the Tribunal, differently constituted, recently canvassed country information relating to sexual violence against Tamil women during and after the civil war. The decision, 2311589 (Refugee)[5] (cited above at paragraph [34]) records at paragraphs [45]-[52]:

    [45] 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]

    [46] 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]

    [47] 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]

    [48] 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]

    [49] 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]

    [50] 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]

    [51] 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.

    [52] 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]

    [5] 2311589 (Refugee) [2023] AATA 4431 (10 October 2023) (Member Murphy), footnotes as in original.

    [6] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 4 November 2019 at 3.131.

    [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.

    [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.

    [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.

    [12] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.90 – 3.92.

    [13] Department of Foreign Affairs and Trade, DFAT Country Information Report: Sri Lanka 23 May 2018 at 3.90 – 3.92.

    [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.

14. The above information demonstrates a long history of sexual violence perpetrated by the authorities against Tamil women, as recorded across multiple DFAT reports and by other international sources in the years since the war ended in 2009.

15. Since the publication of the decision extracted above, an updated DFAT report has become available. The DFAT report of 2 May 2024 notes that sexual harassment by military personnel has decreased in the northern and eastern areas of the country since the immediate post-war period[16] but confirms that sexual harassment and sexual violence including sexual abuse continues to be prevalent towards women generally.[17] In relation to female-headed households, which are mostly concentrated in the north-east and encompass separated/divorced women, DFAT further relevantly provides:

    Female-headed households are vulnerable to poverty and sexual exploitation. Many are indebted, having taken out high interest rate loans from microfinance companies. Employment conditions and general quality of life for female-headed households has declined with the economic crisis, and female-headed households are more likely to be food insecure. According to the US Department of State, some women have reported requests for sexual favours by officials in exchange for information about missing husbands or government services and benefits.[18]

    [16] DFAT, Country Information Report Sri Lanka (2 May 2024) [3.148].

    [17] Ibid [3.143].

    [18] Ibid [3.153]-[3.154].

16. Overall, DFAT assesses that women in general and female-headed households in particular face a moderate risk of gender-based violence, including sexual harassment and assault.[19]

    [19] Ibid [3.147] and [3.158].

17. The US Department of State (USSD) report further records in respect of the north and east of Sri Lanka throughout 2023 that:

    Sexual harassment was common. Women from the north, mostly from minority communities, reported military officials at security checkpoints targeted women for unnecessary body searches. Women from the north and east, mostly from minority communities, also reported male security officers often questioned women in their homes without family members present.[20]

    [20] US Department of State (USSD), 2023 Country Reports on Human Rights Practices – Sri Lanka (22 April 2024) 45.

18. On the evidence before it, including the available country information, the Tribunal accepts there to be a real chance the applicant will face further sexual and physical violence from CID officers in her home area of [Town 2], [Eastern Province]. The feared harm involves threats to the applicant’s life or liberty and significant physical harassment or ill-treatment amounting to serious harm as set out in s 5J(5). That harm is systematic and discriminatory and intentionally targeted at the applicant as required by s 5J(4)(c).

19. In considering whether the real chance of persecution relates to all areas of Sri Lanka, as required by s 5J(1)(c), the Tribunal notes that it has accepted that the applicant was subjected to frequent and repeated physical and sexual violence by members of the Sri Lankan CID and that there is ongoing interest in the applicant as evidenced by the continued harassment of her family members throughout 2024. The Tribunal has also accepted that the CID officers in the applicant’s home area previously became aware of her return to Sri Lanka because they were notified of her arrival at the airport without a valid passport and that they escalated the abuse following this attempt to leave Sri Lanka.

20. The applicant is likely to again require a temporary travel document to be removed to Sri Lanka given that she does not have a valid passport. DFAT reports that returnees travelling on temporary travel documents are subject to a longer investigative process at the airport than those in possession of valid passports. This can include further questioning and database checks by Sri Lankan immigration, the SIS, Navy Intelligence and, significantly, the CID.[21]

    [21] DFAT, Country Information Report Sri Lanka (2 May 2024) [5.38]-[5.39].

21. In relation to internal relocation, DFAT advises that while levels of monitoring have reduced, the military, intelligence and police maintain a high level of awareness of returned IDPs to the north-east. DFAT concludes that Sri Lankan security forces maintain effective control throughout the country, and people are unlikely to be able to relocate internally with anonymity.[22]

    [22] Ibid [5.33].

22. Given this country information, the Tribunal’s above findings, and that the perpetrators of the harm are police officers, the Tribunal finds that the CID members who have perpetrated the abuse against the applicant would have the motivation and the means to locate her throughout Sri Lanka, whether upon her immediate return through the abovementioned airport procedures or subsequently. The Tribunal therefore accepts that the applicant’s real chance of persecution relates to all areas of Sri Lanka.

23. The applicant fears harm on the basis of her Tamil ethnicity, her Hindu faith, her imputed political opinion in support of the LTTE based on her ethnicity, her membership of particular social groups variously comprised of ‘single and separated women who would have a female-headed household’, ‘people with mental health concerns to manage given a history of sexual assault’, ‘failed asylum seekers’ and ‘returnees from the West’, including ‘those who have previously fled and been returned to Sri Lanka’. While elements of the applicant’s profile – including her status as a female head of household from the east of Sri Lanka, and as a returnee and failed asylum seeker – are risk-enhancing, the Tribunal considers that her risk arises essentially for the reasons of her gender and Tamil ethnicity.

24. In light of the above country information indicating Tamil women continue to face a risk of targeted sexual harassment and exploitation, as well as independent empirical and cross-cultural research on the gendered causes of sexual violence,[23] the Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reasons of both her Tamil ethnicity and her gender and membership of the particular social groups ‘women’ or ‘Tamil women’. These groups are defined by the shared innate or immutable characteristics[24] of gender and ethnicity which do not include a shared fear of persecution.[25] Therefore, the applicant meets the criteria relating to a well-founded fear of persecution set out in ss 5J(1)(a)-(c) and 5J(4)(a)-(c).

    [23] See eg United Nations, Ending Violence against Women: From Words to Action, Study of the Secretary General (2006) 28-29; Gurvinder Kalra and Dinesh Bhugra, ‘Sexual violence against women: Understanding cross-cultural intersections’ (2013) 55(3) Indian J Psychiatry 244-249.

    [24] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2002) [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].

    [25] Section 5L(d) of the Act.

25. However, according to s 5J(2) of the Act, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person including by the relevant state.

26. According to s 5LA(2), a relevant state 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.

27. Country information indicates that effective protection measures are not accessible for people of the applicant’s profile and in the applicant’s situation. In general, DFAT identifies there are structural barriers impeding access to police protection for ethnic minorities, including historical mistrust, perceptions of police favouring the Sinhalese community, and language barriers.[26] With regard to the latter issue, DFAT notes that most members of the police, including in Tamil-populated areas, are Sinhalese, and that most police officers in the north-east do not speak Tamil.[27]

    [26] DFAT, Country Information Report Sri Lanka (2 May 2024) [5.13].

    [27] Ibid [3.150].

28. In relation to gender-based violence, various factors deter women from going to the police, including a lack of female officers at police stations, fears of community perceptions and social stigma.[28]

    [28] Ibid [3.150]

29. While there are support services available to victims of gender-based violence throughout Sri Lanka, including women’s shelters and a Children and Women Abuse Bureau of the Sri Lanka Police,[29] DFAT assesses that state protection mechanisms and support services are inadequate and lack capacity.[30] In relation to sexual assault, DFAT further states that police are not adequately trained to collect evidence.[31]

    [29] Ibid, [3.144]-[3.145] and, in relation to the north-east, [3.149].

    [30] Ibid [3.146] and [3.152].

    [31] Ibid [3.146].

1. In the applicant’s case, the perpetrators of the harm she fears are police officers. It was submitted, without more, that the conduct of the police officers in question is state-sanctioned. The Tribunal has not found it necessary to determine this question as it is apparent that in the current context the actions of police officers, whether or not officially authorised or tolerated, are met with impunity in practice. DFAT reports that:

   the police were reluctant to investigate complaints involving state actors, including the military. In-country sources reported the police force was subject to political pressure and interference and, where this was resisted, officers had, at times, been reassigned to new roles. High-profile officers who investigated alleged crimes involving the military, police or Rajapaksa family have in the past been harassed or forced to flee the country.[32]

   [32] Ibid [5.11], emphasis added.

2. This assessment is confirmed by the USSD, which notes in relation to 2023 that impunity and lack of accountability for abuses remained a significant problem, particularly where police and other security-sector officials were involved in the abuses. The USSD also notes reports by civil society organisations that the courts were equally reluctant to act against security forces,[33] information that was also detailed in a 2017 report by International Crisis Group on the situation for women post-civil war.[34]

   [33] USSD, 2023 Country Reports on Human Rights Practices – Sri Lanka (22 April 2024) 12.

   [34] International Crisis Group, Sri Lanka’s Conflict-Affected Women: Dealing with the Legacy of War (28 July 2017) 10-11.

3. In these circumstances the Tribunal finds that the applicant is unable to access effective state protection in Sri Lanka.

4. It follows from the above that the applicant meets the definition of a refugee set out in s 5H(1) and satisfies the criteria in s 36(2)(a) of the Act.

   CONCLUSIONS

5. 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).

6. Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

   DECISION

7. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Adrienne Anderson
   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.

   …