2435172 (Refugee)
[2024] ARTA 706
•22 November 2024
2435172 (REFUGEE) [2024] ARTA 706 (22 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2435172
Tribunal:General Member S. Zelinka
Date:22 November 2024
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 22 November 2024 at 10:51am
CATCHWORDS
REFUGEE – Protection Visa – Sri Lanka – race – Tamil ethnicity – religion – Hindu religion – particular social group – single female Tamil – women in female-headed households – failed asylum seeker – people with a mental illness – repeated sexual abuse – post-traumatic stress disorder – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Morato v MILGEA [1992] 39 FCR 401 at 416
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Sri Lanka applied for the visa on 15 July 2024. The delegate refused the grant of the visa on the basis that she found that the chance of the applicant being seriously harmed or mistreated because she is a single female Tamil or because she is a failed asylum seeker to be remote.
The applicant appeared before the Tribunal on 15 November 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.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND
The applicant is a [age]-year-old single woman of Tamil ethnicity and the Hindu religion from [Town 1] in the northern predominantly Tamil area of Sri Lanka. Although originally in possession of her own Sri Lankan passport, this was taken from her by an agent in [Country 1] and [a Country 2] passport substituted. Thus the applicant reached Australia on[date] July 2024 as an unauthorised arrival and was taken into immigration detention. She has subsequently received documentation from her sister in Sri Lankan confirming the existence of the original valid passport and a copy of her national ID card confirming her identity.
The applicant’s claims at the departmental stage were essentially that she was living alone in Sri Lanka after the death of her grandmother and the marriage of her sister. Her relationship with a young man was abruptly terminated by his family and he was sent away. Living alone, she was abused by local police so she moved to Colombo where again she was very frightened by a visit from a police officer. She fled to Australia.
Before the Tribunal hearing, the applicant’s representative submitted a statement from the applicant and the report prepared by STARTTS (the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors), both dated [in] November 2024. This report was a psychological assessment of the applicant undertaken in several sessions between early October and early November by a Tamil-speaking psychotherapist. It incorporated an initial assessment by another STARTTS psychologist in August 2024.
The Tribunal understood that the applicant was very vulnerable and the hearing was arranged so that all present (the Member and the interpreter) were female, as is the applicant’s lawyer. The latter is also a Tamil speaker.
Evidence before the Tribunal
Respecting the integrity of STARTTS as an organisation and the qualifications of the psychotherapist in this case (as set out in the report), the Tribunal was prepared to accept the accounts of several instances of severe harm as they appeared in the report without asking the applicant to recount the experiences again. The Tribunal’s questions were designed to fill in any gaps and to construct a timeline of events so that the entirety of the applicant’s experiences might be assessed. In this way, the following chronological account has been constructed.
The applicant comes from the [Town 1] District of the Northern Province of Sri Lanka. The civil war was already under way when she was born and the family moved to a displaced persons’ camp when the applicant was only 18 months old, staying there until she was nearly six. She and her young sister were taken from the camp by their maternal grandmother immediately after witnessing the self-immolation of the applicant’s mother after years of domestic violence and abuse from her husband. The applicant has had no contact with her father since that time. They returned to the grandmother’s house in the village in the [Town 1] district, although as their area was in the middle of a conflict zone they sometimes had to leave the house when the fighting became too intense or too close. The civil war finally ended in 2009 with the surrender of the Tamil fighters. The grandmother raised and provided for the applicant and her sister with the sister leaving home in 2011 when she married. The applicant found work as an assistant in a [workplace] in the next village and she continued with this job until she left her village in 2024. The sister divorced her husband in 2015 due to his abuse and returned home; the two sisters and their grandmother stayed together until the grandmother died in late 2021. The sister remarried in 2023 and again left the home; the applicant continued to live there alone until June 2024.
By late 2023, the applicant had formed a relationship with a young man who worked in the same village where she worked. They were conscious of their differences – he was of a high caste and she of a low one; he was Christian and she was Hindu – so they did not make their relationship public. The young man told the applicant that he hoped to work [overseas] and wanted her to come with him, so she obtained a passport in January 2024. However, the young man’s parents found out about his attachment to the applicant and arrived unexpectedly at her house, abusing her verbally as well as physically, insisting that the relationship was finished. When she later tried to call her young man, his phone was dead. Eventually, she contacted his sister with whom she had had cordial relations (unknown to the parents) and the sister said that her parents were terribly angry and were threatening to tell the police that the applicant had done something wrong. The applicant felt frightened after her encounter with his parents and the information from the sister; and also intensely disappointed that the young man appeared to do nothing to help her. She was not able to contact him from the time of his parent’s intervention.
Sexual assaults
About a week later, the applicant had intruders in her house: some young men who were staying in an empty house near the applicant’s. They appeared to be drunk or on drugs and came to her house at night and subjected her to rape and other sexual abuse. The applicant lived alone: she had no-one to help. She did not even think about approaching anyone. The only person to whom she was close was her sister but who now lived about an hour away by car. She had always been protective of her little sister and did not want to provide another source of anxiety, given her sister had only married the year before and finally seemed to be getting on with her life. The applicant rang her work and said she was sick, then just stayed at home. The perpetrators left the neighbouring house then or soon after; in any case, they did not return and the applicant did not see them again.
Another week passed and then two policemen arrived at the house. They said they needed to take her to the police station for some inquiries. The Tribunal asked if they spoke Tamil and the applicant said that they did, but badly, indicating they were not native speakers and therefore probably Sinhalese. The applicant was frightened and assumed that the police were there in response to some instigation by her young man’s parents.
The police did not take her to the station but to an army camp where according to the STARTTS report she was “brutally raped and sexually assaulted and kept in a room with no clothes for two nights and there she was threatened that she must not contact her boyfriend”. After two nights of abuse she was given some clothes and allowed to leave. However, one of the policeman came to her house on several further occasions. At each time he was intoxicated and sexually assaulted her.
By the end of March, she had determined that her life was not worth living and that she would commit suicide on her birthday ([date]). She had not returned to work and she was completely alone in the house. Fortunately, her sister arrived to visit her on her birthday and found the applicant making preparations to hang herself. The sister managed to get her to the town where the hospital was located. She was too ashamed to tell the doctor about the suicide attempt and the repeated sexual abuse of the past several weeks: she admitted only to feeling ‘depressed’. The doctor was satisfied with making an appointment for her to see the psychologist at a future date and did not conduct a physical examination of the applicant. The applicant did not keep the appointment with the psychologist as she could not bear telling anyone about what had happened to her.
Move to Colombo
She rang the employer for whom she had worked for many years (the only place she had ever worked) and said she would like to go elsewhere and could the employer help her to find a job and some accommodation in Colombo. The employer did this and the applicant went to Colombo and began work in a [shop] by the beginning of June 2024. After a short while, a Colombo policeman came to her rented accommodation (only to the door, not inside), checked her ID and asked why she had come to Colombo. The applicant said that she had no-one left in her village and needed to work to support herself. The policeman went away and did not return. The applicant phoned her old employer at home and the employer said that the local police had called into the [workplace] and asked where the applicant was. She had to tell them that the applicant was in Colombo.
The re-appearance of a uniformed policeman, even a different one to those she had encountered at home, caused a new wave of panic. She thought that the trauma of police visits and abuse would begin again in Colombo because she was completely alone. She was already frightened of being in alone Colombo with so many strangers, including men who would make comments or gesticulate as she passed. She felt the only solution was to go somewhere safe – somewhere other than Sri Lanka. She had a cousin who had lived for 20 years in India so she rang this cousin for advice. The cousin replied that she would put the applicant in touch with an agent who would get her to Australia, a nice safe country.
Move to Australia
The applicant contacted the agent and was instructed to get a large sum of money. The applicant had no assets other than her grandmother’s house. She contacted the people who owned the neighbouring property to her grandmother but who themselves now lived in Colombo. They agreed to buy the property. The applicant’s sister sent various documents to enable the applicant to make some arrangements with the buyers who advanced money to her and agreed to complete the necessary paperwork with the applicant’s sister at a future time. The applicant left Colombo following the instructions of the agent: this involved a route through the middle east, the surrendering of her valid Sri Lankan passport to a woman in [Country 1], receiving [a Country 2] passport to exit [Country 1], and destroying this passport on the plane to Australia before arrival as instructed by the agent.
As noted in paragraph 12 above, the applicant, while in detention, has received copies of documents from her sister in Sri Lanka establishing her identity. She was in contact with her sister for a couple of months after her arrival but inexplicably the sister’s phone stopped answering. The applicant has no alternative way of reaching her sister and the latter has not phoned her for two months.
The applicant was interviewed on arrival by a male officer and so she said very little (through fear). Again, the psychologist whom she first saw was male and although he was able to administer some psychometric tests, she gave very limited information in terms of the abuse she has suffered. However, the lawyer and psychotherapist with whom the applicant has been engaged for the last few months are both female and Tamil-speaking and they have now elicited the applicant’s story and the claims that arise from it.
The first psychologist reported that his tests showed that the applicant ‘presents with a range of mental health symptoms that meet criteria for Post-Traumatic Stress Disorder with dissociative features. These symptoms result in clinically significant distress and functional impairment’. Her scores in the Trauma Questionnaires were very high even though she could not complete all the questions as she began to dissociate during the process. The psychotherapist has also concluded that the applicant suffers from post-traumatic stress disorder (PTSD), Major Depressive Disorder with recurrent episodes, and anxiety. The symptoms include ‘muscle tension, shakiness inside, body trembling, severe headaches and dizziness’. At night there is hypervigilance, very poor sleep patterns, and frequent nightmares which result in waking in fear with her heart racing. The psychotherapist also noted ‘social and biological symptoms that are indicative of her experiences of torture and trauma’ and the applicant’s ‘medical issues were strongly suggestive of experiencing rape and sexual violation’.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The Tribunal finds that the applicant is a national of Sri Lanka and that Sri Lanka is the receiving country in this case. This finding is based upon the documents which the applicant submitted to the Department sometime after her arrival and which are on the Departmental file (see paragraph 12 above)
The Tribunal has considered the testimony of the applicant at hearing, her written statements, the supporting documentation on the departmental file, the applicant’s responses to departmental delegates, and the written report supplied by STARTTS on the applicant’s mental health. The Tribunal is in no doubt that the applicant has been subject to trauma at various stages of her life, from the abusive father of her earliest years who was responsible for the horrific suicide of the applicant’s mother (which the applicant as a child witnessed) to the general horrors of the civil war through which she lived in one of the most dangerous [areas]. However, it is the events of the current year – 2024 – which are critical in this case.
Past harm
The Tribunal accepts that the applicant formed a relationship with a young man which was harshly terminated by his parents, presumably because of the differences in caste and religion. The Tribunal notes the most recent DFAT information that ‘the caste system continues to be recognised in Sri Lanka ... Inter-caste marriage carried stigma … [and] it was not uncommon for Tamil families to disown children who married into lower castes’ [1]. In this case, the relationship did not get as far as marriage because of the intervention of the man’s high-caste parents. The applicant, of low caste, was excoriated and abused. The Tribunal accepts that she felt extremely distressed by the end of the relationship and particularly by the complete absence of support from the young man.
[1] DFAT, Country Information Report: Sri Lanka, May 2024, paras. 3.17 and 3.19.
The Tribunal accepts that the applicant was raped by a group of men who were temporarily staying nearby. The applicant was not known to these men: the invasion of her house and subsequent rape and sexual abuse appear to be opportunistic - simply because they could, given that she was living alone - and they were uninhibited due to drugs and alcohol. The applicant suffered very serious harm because she was a woman living alone. She was unable to access State protection as ‘a dearth of female officers at police stations, fears regarding community perception and social stigma … can deter women from going to the police’.[2] The applicant knew that there were no women police officers in her area.
[2] DFAT, op.cit., para. 3.150
The Tribunal accepts that, unrelated to the above attack, two local police men took her for questioning. This occurred about two weeks after she had been abused, slapped and pushed about by her young man’s parents; and after the young man’s sister had warned her that her parents would be complaining about her (the applicant) to the police. The applicant has testified that the police told her that she must not contact her boyfriend. It is likely that these parents, as people of some status, would have a cordial relationship with higher-ranking police and may well have complained informally about the applicant, even suggesting that the police have a word with her to discourage any ‘designs’ on their son.
The Tribunal does not presume that the police assaulted the applicant as a result of a directive from the young man’s parents. However, the Tribunal does accept that two police officers took the applicant for questioning and having realised that she was completely alone, took advantage of this fact. The Tribunal accepts that the two police raped her and assaulted her over a period of two nights at an army camp before letting her go. The applicant was again brutalised by men for reason of her being a woman living entirely alone. These police also knew that she was low-caste and as a concomitant, poor and poorly educated. She would be in no position to complain about them; nor would she know where to make such a complaint. The Tribunal accepts that one of the policeman came to her house, usually when drunk, on a number of subsequent occasions following the detention and continued the sexual abuse.
The Tribunal accepts that the applicant decided to end her life and was prevented from so doing by her sister. The Tribunal accepts that the applicant was too ashamed to speak of the sexual abuse to which she had been subjected and said only that she had depression, thereby excusing the doctor from making a physical examination of her. The Tribunal accepts that for the same reasons of shame and fear, she did not attend the appointment which had been made for her with a psychologist. Instead, she moved away from her village and tried to start afresh in Colombo.
The Tribunal accepts that she was constantly in a state of fear in Colombo. The recent STARTTS report makes it very clear that the applicant was deeply traumatised by the brutal sexual abuse that was perpetrated against her by two different sets of men over a period of a couple of months. Colombo was crowded; some of the men made gestures or sexual comments at her. The Tribunal notes the following DFAT advice on the current situation in Sri Lanka:
According to in-country sources, sexual harassment and sexual violence (including sexual abuse) toward women was prevalent, particularly on public transport. Prevalence has reportedly increased in the last two years … In-country sources reported that victims of sexual harassment and sexual violence were reluctant to report to the police or seek medical support due to a feeling of shame, risk of social stigma and, should their experience become widely known, a fear that they would be unable to marry.[3]
[3] DFAT, op.cit., para. 3.143.
The Tribunal accepts that a Colombo policeman came to her accommodation and asked to see her ID card and asked her why she was in Colombo. The applicant has testified that her old employer answered the local policeman’s enquiry as to where the applicant had gone. The simple explanation seems to be that the local policeman – the one who was coming to the applicant’s home and sexually assaulting her – noted her absence and made inquiries, including following up with a request to the Colombo police to check. This explanation is supported by the fact that the Colombo policeman simply asked to see ID and asked why the applicant had moved to Colombo – standard questions if the police were following a request from elsewhere in the service. The fact that the Colombo policeman did not return indicates that he had fulfilled this task. The Tribunal is satisfied that this episode reflects the interest of the particular policeman in the applicant’s home district rather than any general interest in the applicant by the Sri Lankan Police Force.
Nevertheless, this episode makes it clear that the applicant cannot return to her home district as the local policeman there clearly continued his interest in the applicant even after she left the village. There is a real chance that if she returned, the same policeman would continue to abuse her if she were alone.
The Tribunal accepts that the visit of the Colombo policeman in uniform to her new accommodation far from her own village ignited her fears of abuse to the extent that she made arrangements to leave the country.
There is no doubt that the applicant has suffered very serious harm in the past for reason of her status as a woman living alone: a vulnerable woman. However, the refugee test is a forward-looking test and the Tribunal must assess if there is a real chance that serious harm will befall the applicant in the reasonably foreseeable future, for one of the reasons set out in the Act. The Migration Act sets out at s 5J(1)(a) that a well-founded fear of persecution must be for one of five reasons of which one is membership of a particular social group.
Particular social group
A particular social group is constituted by persons who belong to or are identified with a recognisable or cognisable group within society that shares some interest or experience in common (Morato v MILGEA [1992] 39 FCR 401 at 416). It is widely accepted that women constitute a particular social group. In this case, the particular social group under consideration is ‘women in female-headed households’. This is a recognisable and cognizable group in Sri Lanka: the government has a National Action Plan on Women-Headed Households and DFAT devotes a section of its reports to just this group.
High male death rates and disappearances during the [civil] war left significant numbers of female-headed households in Sri Lanka. Nearly one-quarter of households are female-headed, mostly in the north-east. Female-headed households can include the never married and divorced.
Female-headed households are vulnerable to poverty and sexual exploitation…Employment conditions and general quality of life for female-headed households has declined with the economic crisis and female-headed households are likely to be more 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. …
In country sources reported that there was some social stigma attached to single women. Traditional attitudes dictate that women should marry by a certain age and bear children, and aspersions are cast on those who fail to meet – including by choice – these societal expectations.[4]
[4] DFAT, op.cit., paras. 3.153-4 and 3.157.
The applicant has lived all her life in a female-headed household – her grandmother’s - after the suicide of her mother and the desertion of her father during her childhood. She has no extended family, as the grandfather and uncles on her maternal side were killed in the war and she has had no contact with her father or his family since she was six years old. As indicated in the country information above, her grandmother was poor, doing cleaning work and growing subsistence crops in order to raise the applicant and her sister. The two girls did not have any opportunity to proceed with education beyond the mandatory years.
If the applicant were to return to Sri Lanka, she would still constitute a female-headed household consisting of herself alone. She would continue to be ‘vulnerable to poverty and sexual exploitation’ as noted above just as she has been in the past. The Tribunal is satisfied that if she were to return to her home village, there is a real chance that she would be subject to serious harm (ongoing sexual assaults) from the police who assaulted her before. They know her circumstances as a woman living alone and hence their attacks would not be opportunistic but rather systematic and discriminatory for reason of her membership of a particular social group. The Tribunal is satisfied that the applicant has a well-founded fear of persecution in her home area.
However, this fear is not necessarily well-founded outside her home district. The applicant moved to Colombo and no actual harm befell her while she was there. A policeman came to her place but behaved correctly, asked the questions he was instructed to ask, went away and did not return. Unknown men called out to her in a sexual manner but these were random encounters (although unpleasant and disturbing).
The applicant’s claim to fear male violence is broad and generalised. Clearly all men in Sri Lanka are not predators. A claim simply based on a generalised fear of men would be unlikely to succeed as the basis of a claim for refugee status. However, there are particular and specific circumstances in the applicant’s case. The applicant has been the victim of a repeated sexual assaults in the first half of 2024: very serious harm perpetrated by men who took advantage of the fact that she lived alone. Her last written statement indicates that she also suffered physical abuse in childhood from her father before he disappeared from her life. The applicant through shame, social stigma and general ignorance of any assistance available did not go to the authorities such as the medical services. Two of the perpetrators of the violence against her were police officers and this gave the applicant a profound distrust of the authorities, rendering it impossible to access State protection.
Mental illness
The sexual violence and other trauma suffered by the applicant has left her with serious psychological problems: she now suffers from post-traumatic stress disorder (PTSD), Major Depressive Disorder with recurrent episodes, and anxiety (see paragraph 28 above). She will require professional medical and psychosocial services to manage and hopefully ameliorate these disorders plus the other medical conditions that have resulted from the brutal treatment she has experienced. The Tribunal is mindful of the need to take particular vulnerabilities into account: ‘In assessing the seriousness of the harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities’[5]. This is consistent with the observations of the Full Federal Court where it was emphasised that an evaluation of ‘serious harm’ will be a question of fact and degree, often complicated and quite specific to the individual concerned.[6]
[5] AGA16 v MIBP [2018] FCA 628 at 35
[6] SZTEQ v MIBP [2015] 229 FCR 497 at 153
The applicant now has a range of behaviours that result directly from the past harm that she has suffered. These are set out in the STARTTS report and will be mentioned in following paragraphs. These behaviours, if triggered, will mark her out from other people and cause her to be regarded adversely as a person with mental illness. DFAT notes that in regard to mental illness in Sri Lanka:
In-country sources said mental illness continued to carry social stigma, particularly in rural area, although also reported some positive shifts in community attitudes …However, negative community attitudes persist and can deter people from being open about their mental health and seeking treatment. People living with mental illness can experience social isolation and bullying, and can find it difficult to find employment and marry.[7]
[7] DFAT, op.cit., para. 2.46
People with a mental illness can also constitute a particular social group. In Sri Lanka, they are recognised as a group by the new Mental Health Act currently being considered by parliament; they are recognised by the community, often in an adverse way as noted in the paragraph above, and as follows:
People with mental illnesses face stigma, discrimination, marginalisation and violation of their rights; furthermore, owing to the nature of symptoms some have impaired decision-making capacity, which may result in refusal to accept treatment.[8]
[8] Hapangama et al, Why are we still living in the past?, BJPsych Int 2023 Feb; 20(1):4–6.
The behaviours which mark the applicant out as different are set out in the STARTTS report. They include dissociation, the act of being entirely mentally absent from the interlocutor or the task in hand: this is mentioned a number of times. They also include physically shaking or trembling, becoming flushed, crying, muscle tension, dizziness and severe headaches. The onset of these symptoms during an exchange with another person would lead the other person to conclude that the applicant was not normal – that she was mentally ill.
The triggers to induce these symptoms is reported by STARTTS as including (significantly) men in uniform representing Authority. The report notes that the applicant was not able to make out her claim (“to provide details or sequence of the incident clearly”) to the initial officer on arrival at Sydney airport because he was male, nor to the first psychologist assigned to her, for the same reason. On realising this, the lawyer subsequently arranged for the applicant to be seen by a woman counsellor and by women officers in the detention centre.
Future harm
The Tribunal has had regard to the pattern of events when a person is sent back from Australia to Sri Lanka as a failed asylum seeker. Although the applicant departed on her own passport, it was not one with an Australian visa, not the one on which she entered Australia, and in any case, she no longer has it. Returning on a temporary travel document, her processing will take longer and involve questioning from ‘Sri Lankan Immigration, the SIS, Navy Intelligence (SLNI) and the police (CID)’[9]. Although ‘DFAT is not aware of recent returnees being mistreated through this process’ (ibid.), the point is that the applicant will have to face a series of uniformed officers asking her personal questions. This will undoubtedly trigger the sort of abnormal responses as described in paragraph 48 above. If the applicant is unable to answer questions - because of dissociating or crying or otherwise unable to articulate – then she cannot be processed. She will have to be detained until the process can be completed.
[9] DFAT, op.cit., para. 5.39
As the STARTTS report has made clear, the applicant “struggles being in detention as this reminds her of the traumatic experience by Sri Lankan police and authorities”. She will not improve whilst in detention to the point where she can assist the immigration officials with their inquires in any meaningful way. Indeed, her condition will become worse: the first psychologist noted that in detention, the applicant’s lack of specific and general coping strategies, social isolation and lack of social support “contribute to the likelihood that her symptoms will continue to deteriorate” bringing an increased risk of suicide.
The Global Detention Project, an independent nonprofit research centre in Geneva, has reported that “Sri Lankan immigration detention facilities are known to subject detainees to poor living conditions … In 2017 the Working Group on Arbitrary Detention visited Mirihana detention facility and noted extreme overcrowding, poor shower and bathroom facilities, and lack of recreational facilities ... as of at least February 2020 the facility remained open’[10] despite the Working Group’s having urged the cessation of detaining people there ‘as it is entirely inappropriate for such purposes’[11] It further notes that “The UN Working Group on Arbitrary Detention has criticized the dire conditions in immigration detention, pointing to overcrowding, poor maintenance , and unsuitability for prolonged detention”.[12]
[10] Global Immigration Project, Sri Lanka Immigration Detention Data Profile 2020, page 3.
[11] Ibid.
[12] Global Immigration Project, op.cit., Frontispiece
The Tribunal is satisfied that being held in migration detention in Sri Lanka (and for what might be an indefinite period of time) will constitute serious harm, given the evidence about the state of immigration detention and also given the fact that she is a vulnerable person for whom a lower threshold of serious harm is appropriate. The fact that she will continue to be held whilst unable to answer the questions put to her by the immigration and security authorities, which she cannot answer because of her mental illness symptoms, means that the harm is both systematic and discriminatory. The essential and significant reason for this harm is her membership of a particular social group constituted by people with a mental illness in Sri Lanka.
The Tribunal is satisfied that the applicant has suffered very serious harm in the past in Sri Lanka for reason of her membership of a particular social group constituted by female-headed households. The Tribunal is satisfied that she has a well-founded fear of persecution at the hands of the local police in her particular home area. She cannot return to that home area even though it is where her only relative, her sister, lives. However, it is open to the applicant to live elsewhere in Sri Lanka: there are no barriers to internal relocation and she has previously lived without harm in Colombo (albeit for a short time).
To return to Sri Lanka means that the applicant will have to pass through the immigration authorities of that country and as she is not in possession of a valid passport. She will be interviewed by both immigration and security officials. The Tribunal is satisfied that her past trauma has resulted in several definable and ongoing mental illnesses. Noticeable and severe symptoms are these illnesses are triggered by certain stimuli, particularly the presence of men in uniform exerting power over her (such as in the process of questioning her). She must be questioned by the authorities on arrival (Sri Lankan law demands it); her mental illness symptoms will be triggered and render her unable to answer the questions; the authorities will be unable to process her and let her go until she completes the process. Unable to process her, the authorities will detain her in immigration detention. The STARTTS report in its risk assessment of the applicant in detention states that that ‘a current sense of hopelessness … and limited protective factors’ indicate that the ‘risk of suicide is high’. Independent evidence indicates that the circumstances of detention themselves are so dire that detention (especially for an unspecified time) amounts to serious harm. The harm is made more serious in the applicant’s case by her vulnerability due to her mental illness caused by past trauma.
Conclusion
The Tribunal is satisfied that there is a real chance that serious harm will befall the applicant in the reasonably foreseeable future if she were to return to Sri Lanka. An essential and significant reason for this harm is her membership of a particular social group constituted by people with a mental illness. She cannot access State protection as it is the State authorities who are responsible for the serious harm that will befall her and this situation is applicable in all areas of the country. The Tribunal is satisfied that the applicant’s mental illness was induced by past persecution for reason of her membership of a particular social group constituted by female-headed households and for which she was unable or unwilling to access State protection.
The Tribunal finds that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria: s 36(2)(a) of the Migration Act.
Hearing: 15 November 2024
Representative: Miss Shamili Kugathas
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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