2440371 (Refugee)
[2025] ARTA 735
•4 February 2025
2440371 (Refugee) [2025] ARTA 735 (4 February 2025)
DECISION AND
REASONS FOR DECISION
Representative: Miss Shamili Kugathas
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2440371
Tribunal:Senior Member J Marquard
Date:4 February 2025
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 criterion:
·s 36(2)(a) of the Migration Act.
Statement made on 04 February 2025 at 6:02am
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – particular social group – young, single Tamil woman – fear of harm from acquaintance of father – attempted trafficking to another country – father confronted acquaintance and was later attacked and died in hospital – mother and brother taken away and whereabouts unknown – applicant detained, sexually assaulted and threatened – escaped with help of another acquaintance, who arranged passport but not visa – refused entry and place in detention – consistent and compelling claims and evidence despite some unsatisfactory aspects – mental health and treatment – country information – gender-based violence – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5L, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
AGA16 v MIBP [2018] FCA 628
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIAC v Khadgi (2010) 190 FCR 248
Okere v Mima (1988) 87 FCR 112
SZFZN v MIAC [2006] FMCA 1153Any 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
The applicant has sought review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 24 October 2024 to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant is a citizen of Sri Lanka. She is [Age] years old.
She arrived in Australia [in] August 2024 on a flight from [City in Country 1]. She was refused entry and placed in detention as she did not have a visa to enter Australia. She is still in immigration detention.
She applied for the protection visa the subject of this review on 9 October 2024. There was no interview held. The delegate of the Department of Immigration and Multicultural Affairs (the Department), as delegate of the Minister, refused to grant the visa on 24 October 2024. The delegate did not accept that the applicant’s claims were credible.
This is a review of that decision by the Administrative Review Tribunal (the Tribunal).
THE APPLICANT’S MENTAL HEALTH
The applicant claimed in her application that she tried take her own life when in Sri Lanka. This is discussed in more detail later in this decision.
The applicant has been consulting with [Ms A], a psychologist at the [Organisation] while in immigration detention.
She provided records from the International Health and Medical Services (IHMS), the provider of health services in immigration detention, from August to November 2024.
The IHMS records included the following information:
·Nurse consultation, 27/08/2024: states history of self-harm, recent suicide attempt January 2024, sexually abused, abuser killed her family, fled country, abuser has money and political power.
·Health induction assessment 28/08/2024: alert, cooperative, interactive. No medical history or medications. Denied having mental health problems. Spoke about sexual abuse and her mother and brother being put into a mental health facility for no reason after her father died. She was ‘mentally stressed’.
·Health induction assessment 3/09/2024: spoke of uncle being responsible for sexual abuse and other harm. Anxiety since father died. Sexual trauma from her uncle.
·Psychologist 9/09/2024: Consistent details as above provided to psychologist. Feeling lonely but safe. Struggling to sleep, unpredictable appetite, anxiety. Discussed mindfulness, trauma and impact on the brain, amygdala and false alarm, behavioural activation. Denied self-harm. Potential diagnosis of PTSD.
·Psychologist 23/09/2024: Worries about future and memories of trauma. Gets triggered by smoking as perpetrator smoked. Discussed ways could manage bodily sensations and mindfulness.
·Psychologist 9/10/2024: meeting with her lawyer had flooded her with memories of her sexual trauma and she became overwhelmed. Shaky, sweaty, caused numbness. Provided psychoeducation on depression and behavioural activation. Potential diagnosis of PTSD.
·Psychologist 28/10/2024: referred to Department decision and lack of opportunity to interview. Said had no details of police officer. Low mood.
·Psychologist 4/11/2024: ‘showed apparent sadness whilst talking about her aunty and uncle’. Said that her father’s friend and wife not answering telephone.
·Psychologist 18/11/2024: ‘still no communication with her uncle and his wife and she is anxious’.
In her application, the applicant claimed that she has had suicidal thoughts in [Detention centre] and had been prescribed sleeping tablets. In written submissions to the Tribunal the applicant again claimed that her mental health is vulnerable. She said that when she thinks about her life in Sri Lanka, she struggles to breathe and her head hurts. She sometimes begins to shake, and she feels dizzy when she experiences flashbacks. She said that she takes [a medication] and an antidepressant. Asked by the Tribunal how she was coping at the detention centre, she said that she sometimes could not participate in activities because she was unhappy. She said that she had a friend in the centre, but she has now been released. She said that she sees the psychologist once a week, and this helps her. She said that after the sessions, her mind ‘goes back to the same situation’. She said that no-one visits her, and she does not have support from any organisations.
The applicant confirmed that she felt capable of giving evidence at the Tribunal hearing, although the ‘memories come flooding up’.
The Tribunal took a trauma-based approach[1] to this case, in view of the serious assaults and vulnerability claimed. The Tribunal prioritised the matter, explained the processes clearly to the applicant and recognised the pain she suffered. The Tribunal explained to her that she could take breaks and advise the Tribunal if questioning was too difficult.[2]
[1] Equality before the Law Benchbook, <Section 12 - Trauma-informed courts> - approach includes providing information on process and non-invasive questioning.
[2] United Nations High Commission for Refugees, ‘Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process’, November 2017.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has considered the application and supporting documents provided, migration records for the applicant, as well as new written and oral evidence to this Tribunal. The Tribunal has also considered independent sources about Sri Lanka, including the Department of Foreign Affairs and Trade (DFAT) Report.[3]
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
The applicant appeared before the Tribunal on 20 January 2025 to give evidence and present arguments. An earlier hearing had been scheduled by the Tribunal, but on the request of the applicant it was re-scheduled. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant’s representative, Ms Kugathas of Presence Legal, was present at the Tribunal hearing.
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[4]
[4] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS
The Tribunal is satisfied that the matter should be remitted for reconsideration. A summary of the law, claims and findings are set out below.
Summary of relevant law and principles of review
The applicant has applied for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV). Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a SHEV permits a non-citizen to stay in Australia temporarily for a period of five years.
Australia acceded to the 1951 Convention relating to the Status of Refugees[5] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[6] in 1973, thereby undertaking to apply the substantive provisions of these conventions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[7]
[5] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[6] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[7] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[8] or
b.qualify for complementary protection (the complementary protection criterion);[9] or
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[10]
[8] Section 36(2)(a) of the Act
[9] Section 36(2)(aa) of the Act.
[10] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)) although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.
The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct (s 5J(4)). Indicative examples of serious harm are set out in s 5J(5) of the Act.
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-5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
Nationality
The applicant had a Sri Lankan passport issued in Colombo. She said that it was discarded at the airport in [Country 1] on instruction from her agent. A copy was provided to the Department.
Notwithstanding the absence of the passport, the Tribunal is satisfied from the applicant’s testimony and the copy of the passport provided, that she is a citizen of Sri Lanka, and that Sri Lanka is the receiving country for the purposes of the legislation.
The applicant’s family and background
The Tribunal accepts that the applicant is of Tamil ethnicity. She used a Tamil interpreter and lived in a Tamil region.
The Tribunal also accepts the applicant’s evidence about her family and background. This evidence has been provided consistently to the Department and Tribunal, and to health practitioners in the detention centre.
The applicant comes from [Village 1, Town], in the Eastern Province of Sri Lanka. According to Wikipedia, [Town] is located in the Batticaloa District, about [Distance, direction] of Batticaloa.[11]
[11] Wikipedia, [URL].
The applicant described [Village 1] at the Tribunal hearing. She said that it is a small farming and fishing village within the town. She said that there was no tourism. She said that it was the kind of village where people knew each other, but ‘not everyone knew everyone else’.
Her father worked as [an occupation] at the [workplace]. He died in February 2022. Her mother was a housewife. She also has a [brother], who she claims has been ‘mentally disabled’ since he was a toddler.
The applicant told the Tribunal that she has no familial ties in Sri Lanka, besides her mother and brother.
She lived with her parents in a house owned by her parents. The house had been passed down to them by her maternal grandparents on their wedding day. Her maternal grandparents have now passed away.
Her father’s parents died in the tsunami. They came from a different village, [Village 2], in a different region, about four or five hours away by bus.
She said that her parents have no living siblings. During the war her father’s sister was shot and his brother died of illness. Her maternal aunts both died of a heart attack. She said that neither were married or had children. She said that she has no cousins that she knows of. At festival time, they got together with neighbours.
The applicant attended primary and secondary school in her village. There were about 35 students in her class. Most of them came from her village. She had some friends at school. She finished her A levels in [Year]. Her marks were not good enough to continue on to further study. There was no work available in her area.
The applicant’s claims of harm
The applicant claimed in her Department application that a friend of her father’s named [Mr B] took her to Colombo in January 2022 to help her secure a job. She does not know his full name or address although knows that he resides in her village. She explained at the Tribunal hearing that [Mr B] was not married and she was not sure what job he had. She said that he was friends with both parents and when she first knew him, she thought that he was a good person. She did not know of other people who knew him.
She told the Tribunal that she and [Mr B] planned to go to Colombo for only one day. She asked [Mr B] what kind of work it would be and if she needed a qualification. He did not tell her what kind of work it was but did say that she could get a job quickly, which was not the case for other jobs, and that she did not need a qualification.
They went by train to a building in Colombo in January 2022. There were around four to five ‘traditional Muslim men’ in the room. [Mr B] said that they would interview her. They asked her to sit on a chair and asked her for her name, age and details of her parents. They also asked her if she was a virgin or married. They asked if she was interested in going to [Countries 2-4]. She said that she would speak to her parents and let them know. She told the Tribunal at hearing that she did not feel comfortable with the way they looked at her and that they asked her about sexuality and whether she was a virgin. She said that her intuition told her that she had come to the wrong place.
She said that [Mr B] took her back to Batticaloa and she told her father about what the men had said.
Her father said that he would speak to [Mr B]. Her father did then speak to [Mr B], asking why he approached her daughter in this way. [Mr B] told her father that it was a good opportunity for her to be sold to a family overseas where she would get a stable income. She said that [Mr B] said to her father that he could not keep struggling with his finances. She said that this angered her father. He removed his shoes ‘in a public spot’ and hit [Mr B] with his shoes. He told [Mr B] not to come to their house anymore.
The applicant said that her father told her mother about the incident. Her mother said that [Mr B] told her father that he would ‘pay for this’. The applicant said that her father told her not to worry and he would deal with it.
She said in her application, and confirmed at the Tribunal hearing, that one month later, on [Day 1] February 2022 two people hit her father on the head while he was riding his motorbike and he fell to the floor bleeding. Her mother and brother were returning home and saw this happen. Neighbours came to her home to tell her about it. She arranged for a car, and they took her father to [Hospital 1]. She said that she told police that her father had been assaulted, as he had a small bicycle, and it was not possible for him to have sustained such serious injuries falling off his bike. She also told them about [Mr B] and how he may have been involved. She said that the police took her number and name and said that they would investigate. At the Tribunal hearing she said that police came to the hospital and asked what happened, but they did not arrest anyone. They did not interview her mother or brother.
She claimed that her father was transferred to [Hospital 2] via ambulance, and he died on [Day 2] February 2022.
The Tribunal asked the applicant if she followed up with the police about her father’s death. She said that she did not as her mother was in a state of shock and could not speak. Her father was also in a bad mental state. She was just concentrating on them. Her mother and brother could not speak or eat, and just stared into space. She took them to doctors and for Ayurvedic treatment. She said that during this time [Mr B] had gone overseas but he returned in May 2023.
She told the Tribunal that when [Mr B] returned in May 2023 he came to their house. He told her that he would take her mother and brother to a mental health institution as they were not functioning. She said that she wanted to stay with them. She said that she begged him, laying near his feet, to leave her mother and brother, but he forcibly took them. She said that she asked him where they were going, and he said that he was going to take them to a mental hospital. She said that she was crying, and when he returned, she asked him where they were, but he told her to mind her own business. She was asked if she thought about going to the doctor to ask for help. She said that she was unable to do anything after this as he locked her in a room. She said that her mother and brother ‘disappeared’; she currently does not know their whereabouts and has had no contact with them since May 2023. She said that [Mr B] told her he had arranged for men to kill her father and she must listen to him as he could do anything to her.
The applicant claimed that she was locked in the room from May 2023 to February 2024. She did not have a telephone.
She was asked if her friends and neighbours checked on her. She said that after she finished her A levels, she was always at home. She said that she was a bit depressed. She said that the neighbours that they were close to, had moved house. She said other houses were further away and they were not as good friends with the residents. She was asked if her friends from school checked on her. She said that some had gone overseas, and some were at university.
The applicant told the Tribunal that she had wanted to transfer the house into her name after her father died. She said that [Mr B] told her that she had no-one, so she would ‘be his’. She said that he had the house transferred to his name. She said that [Mr B] told her that she must listen to him as he had arranged for her father to be killed. He said that he would arrange work for her as a prostitute overseas in Muslim countries. She said that she told him that she would not agree, and he hit her. She said that the ring he was wearing cut her chin. She said that he used an iron rod to burn her arm. She was locked in the house and told that if she screamed, he would kill her mother and brother.
The applicant said in her application that [Mr B] did not sexually assault her for the first month as he said that he would get better money for her as a virgin. She claimed that in August 2023 he ‘lost his patience’ and sexually assaulted her by asking her for oral sex and groping her. He did not vaginally penetrate her. She said that when she had periods, he kicked her stomach and even now she has a sore stomach.
She said in her application that [Mr B] took a video of her in the shower and said that he would post it on the internet unless she worked as a prostitute. A few days later a police officer called [Mr C] came to the room and assaulted her. She realised that [Mr B] had links with the authorities. [Mr B] told her that he had ties to police, politicians and the CID. She felt helpless. She claimed that [Mr C] came each week after that and assaulted her, and every time he was intoxicated. She pleaded with him and asked him to see her as his daughter. She claimed that he made her carry out oral sex on him.
The Tribunal notes that in her first interview with a nurse from IHMS the applicant told the nurse that she had been sexually abused and that the perpetrator had killed her father. She also told them she fled her country as her perpetrator had money and political power and that she had no other family in Sri Lanka. She also told them that the perpetrator put her mother and brother into a mental institution for no reason.
She told the Department that in February 2024 she tried to hang herself from a fan. She said that a bag belonging to her father fell out of a cupboard. There was a telephone in the bag, and to her disbelief it worked. She said that she looked in his contacts and called one of her father’s friends, [Mr D]. He picked up and she told him everything. He said that she should pretend to [Mr B] like everything was normal and he would find a way to rescue her. A few days later he came to the house and opened the grille of the window with a screwdriver, and she escaped.
The Tribunal queried why she had not looked in the cupboards earlier if she was locked in the room from May 2023. She said that her thoughts were with her mother and brother. She was afraid of [Mr B] as he had told her he would kill her mother and brother, like he had killed her father.
Asked by the Tribunal for more information, as it appeared unusual that the telephone had charge if it had been in the cupboard, she said that she tried to hang herself on a ceiling fan. She said that [Mr B] heard her, and he opened the door. He took hold of her, and she put her hand on the cupboard and the bag fell down. She said that he then stepped on her face. He told her to stop trying to kill herself. He left, and she was crying and did not notice the bag. She said that when she was going to sleep, she saw the bag, and she opened it. Inside the bag was jewellery, papers and a small [phone]. She said that [telephones] can work even if not used for some time. She saw her father’s contacts and looked for someone she knew. Her father often talked about [Mr D], so she called him, and he answered. She told him about the torture and cried. She said that he could take the jewellery and she asked him for help. He told her to act like she was listening to [Mr B], and when he got the chance, he would save her. A few days later he came to the house and opened the grille of the window and she escaped.
The applicant claimed that [Mr D] took her straight to Colombo in a van and then to a house in Negombo. The house was a lodge, and he paid for her to stay there. [Mr D] spoke to an agent called [Mr E]. She signed a blank piece of paper and he said that he would organise a passport. She did not leave the house.
She had a mobile phone when she was there. She claimed that she and [Mr D] did not call the police because the police ‘were on his side’, referencing [Mr B]. She said that a policeman had sexually assaulted her so she was afraid to contact police. She was asked if in Colombo she tried to find her mother and brother. She said that she did not have phone numbers. She was asked why she would not have tried to find her mother and brother during this time. She said that she had been locked up and tortured and her mental health was ‘very bad’ and she ‘could not come out of it’. [Mr D] told her he would try and find them.
She said that after she came to Australia, she called [Mr D] to ask him if he knew where her mother and brother were. He said that he had asked at two or three hospitals but could not find out any information. He told her it was difficult to find out. Asked by the Tribunal if she had looked online, she said that she was still in mental agony so had not. She said that she had not asked any neighbours, teachers or friends for help as she did not have their telephone numbers.
She said that the agent arranged her flights and passport. [Mr D] paid for the tickets. When leaving, the agent told her to lie about where she would be so she told officers in Australia that she had been to [Country 2], but she had been from [Country 3] to [Country 1]. She was in [Country 1] for one day and given a boarding pass.
Assessment of claims
The Tribunal accepts the applicant’s claim that [Mr B] took her to Colombo with the aim of trafficking her overseas. This evidence has been provided consistently to the Department and Tribunal, and she also told medical practitioners at the IHMS about this.
The Tribunal also accepts that the applicant’s father died in a motorcycle accident. A translated copy of a death certificate has been provided, which she said was obtained by the agent, [Mr E]. She said that the death certificate was verifiable online and provided the link. The certificate states that her father was ‘[Age] years old, [occupation]’. It states that the cause of death was ‘accidental death due to intracranial haemorrhage after falling down while travelling on a motorbike and hitting his head hard’.
The Tribunal accepts that the applicant believes that [Mr B] was responsible for her father’s death, as he has told her that he was responsible. She has given credible evidence about an altercation that her father had with [Mr B] shortly before her father’s death. The detail provided, for example about her father hitting him with shoes, is often commensurate with direct experience. She also said that her mother and brother witnessed two men hit her father on the head which led to his motorcycle accident. This may well explain the severe reaction they had to the death. The Tribunal accepts that her mother and brother went into shock after the death. Their reaction is recorded in two medical reports from [Dr F] dated 19 September 2024. [Dr F] reported that he saw the applicant’s brother on 7 August 2022 with symptoms of psychiatric illness such as lack of sleep, low mood, aggressive behaviour and poor appetite. Following a history and examination he was diagnosed with bipolar disorder. He noted that he had depression since the age of 10. He said that he visited four times with no improvement and was referred to a consultant psychiatrist.
[Dr F] also reported that he had seen the applicant’s mother who was brought in by a relative on 14 March 2022. [Dr F] noted that he was her family doctor. [Dr F] reported that she did not speak, and had no eye contact. He reported that her husband had died on [Day 1] February 2022. He concluded that she was suffering from depression and referred her to a consultant psychiatrist.
The applicant’s claims about the kidnapping by [Mr B], attempted trafficking, sexual assault and extortion in Sri Lanka have been reported consistently to the Department and Tribunal, and the Tribunal accepts this evidence. She has also given consistent evidence about the harm she suffered in Sri Lanka to various medical and health IHMS practitioners she has seen in detention.
It was clear to the Tribunal from her guarded, but at times emotive, evidence at the Tribunal hearing that she is clearly traumatised by the assaults, threats and control [Mr B] had over her. She told the Tribunal that there were no words to describe the sexual torture she underwent. She said that ‘women know the kind of agony I suffered’. She said that she ‘could not bear the torture’ and wanted to kill herself and she underwent all of this ‘because I am a woman’. This was persuasive testimony, reinforced by comments she made to a third party, the psychologist in detention, about how she kept recalling the trauma, and on one occasion was triggered by detainees smoking, as this reminded her of her perpetrator who smoked. She also told the psychologist that she relived the experiences when relating them to her lawyer. This kind of revisiting of trauma is common for violence victims.[12]
[12] See Australian Institute of Judicial Administration, ‘National Domestic and Family Violence Bench Book’, July 2024.
Sources indicate that the economic crisis in Sri Lanka has led women and men abroad, including in the Middle East, to fall victim to trafficking, including sex trafficking.[13] Human traffickers do exploit women and children in forced sex trafficking, sometimes fraudulently using social media to recruit victims.[14] An article in the Tamil Guardian in 2024 referred to destitute women who turned to local recruiters for exploitative jobs including sex trafficking.[15]
[13] United States Department of State, ‘2024 Trafficking in Persons Report: Sri Lanka’, < Sri Lanka - United States Department of State>.
[14] United States Department of State, ‘2024 Trafficking in Persons Report: Sri Lanka’, < Sri Lanka - United States Department of State>.
[15] Tamil Guardian, ‘Women from Sri Lanka’s North-East vulnerable to trafficking for sex work in the Middle East’, 15 August 2018.
The applicant’s migration records corroborate that she arrived in Australia [in] August 2024 on a flight from [City]. The fact that she left Sri Lanka without a visa and travelled straight to Australia with only one night in [City] also does suggest that she was fleeing, rather than travelling on a planned visit. She has spoken convincingly about how she felt anxious travelling on her own as she had never travelled before. The Tribunal asked her if she knew where she was going when she departed for Australia. She said that [Mr E] mentioned many countries but told her that in Australia she could seek protection as a female. She said ‘only after this I knew that I was going to Australia’. This suggests that the agent had organised for her to travel to Australia to seek protection. She also immediately surrendered herself to authorities at Sydney Airport and told them her story.
For all of these reasons, her compelling and consistent testimony, the death certificate and medical reports, country sources about trafficking and her migration records, the Tribunal has accepted the applicant’s claims about the harm she suffered in Sri Lanka, even though aspects of the story appear far-fetched and almost fanciful. In particular, the Tribunal had concerns about the following aspects of the applicant’s evidence:
·That her mother and brother were taken to a mental institution and have been kept there since, and she has been unable to locate them.
·That she was kept in a room for nine months, without neighbours or friends trying to find her.
·That she accidentally found a telephone which worked and had charge, and she was able to call a family friend who helped her escape.
·That she tore up a passport in [Country 1].
It was difficult questioning the applicant about these concerns, given the applicant’s mental instability, however the Tribunal did ask questions, discussed further below, and while the answers were not entirely satisfactory, the Tribunal is satisfied that [Mr B] exercised coercive control over the applicant, kept her in a house with an objective of trafficking her and sexually assaulted her, also allowing her to be sexually assaulted by the policeman. Even if she has embellished aspects of her claims, the Tribunal finds that the embellishments are not material, given the Tribunal’s overall findings, discussed earier.
The applicant was questioned by the Tribunal about why the medical reports relating to her mother and brother did not confirm that her mother and brother were in an institution. She said that [Dr F] was a general practitioner and they saw him initially. She did take them to a mental health practitioner only once as she could not afford it after that. Asked if she had contacted that doctor or [Dr F] to find out more information about her mother or brother, she said that [Mr D] helped her get the reports. She was asked if she had tried to find the doctor by searching online. She said that she had not, and she did not have telephone numbers and had been in mental anguish and had asked [Mr D] to do this.
In assessing the applicant’s claims about her lack of initiative in trying to find her mother and brother, the Tribunal has considered the severe trauma she has suffered at a young age, first her father’s death, then her mother and brother’s mental health, and [Mr B]’s and the policeman’s assaults, intimidation and threats. She has claimed that she asked [Mr B] about her mother and brother, and also more recently asked her father’s friend, [Mr D] to look for them. While it may have been expected that she herself would have searched online or availed herself of the assistance of non-governmental organisations, the Tribunal has considered the impact of the trauma on ability to function. She has said that she was in ‘mental agony’. Furthermore, the Tribunal notes that she does not have tertiary education, which may also explain why she did not seek other avenues to try and find her mother and brother. The Tribunal is also persuaded that her evidence about her mother and brother is true as she has spoken to various medical practitioners in detention about their situation. The applicant also told the Tribunal that [Mr D] helped her get the two doctor’s letters and she had tried to get him and his wife to find more health records for her mother and brother. She said that she had been trying to contact [Mr D] and his wife, but they are not answering. She said that they had not responded to her requests. Her concern at their lack of response was referred to in her IHMS medical reports.
Although it is difficult to understand how no-one searched for the applicant while she was locked in the room for nine months, it may be the case that she did not have many friends in town, as she claimed, and no relatives. The Tribunal accepts that, while unusual that no-one would have checked on her, it may be the case that the neighbours they were close to had moved, and her friends were overseas or at university, as claimed. She also did not contact the National Anti-Human Trafficking Task Force hotline,[16] the ombudsman or any human rights organisations, either in Sri Lanka or since. She said that she had ‘no trust’ when she was in the country, and she was on her own. She did not contact the police as one of them had assaulted her. The Tribunal notes that there are two shelters for trafficking victims in Sri Lanka, but a magistrate’s order is required.[17] The Tribunal acknowledges that given a policeman had assaulted her, it may have been difficult for her to approach police or other services for help.
[16] Walk Free website, <How to Find Help in Sri Lanka | Walk Free>.
[17] United States Department of State, ‘2024 Trafficking in Persons Report: Sri Lanka’, < Sri Lanka - United States Department of State>.
The applicant claimed that the [telephone] worked shortly after she found it, and referred to finding ‘wires’, which may have indicated a charger. This evidence seems somewhat difficult to believe and she did not adequately explain it except to say that [phones] can work even though not used for some time. However she obtained this mobile phone, the Tribunal accepts her overall evidence about the kidnapping, for the reasons set out earlier, and whether or not the mobile phone dropped out of a cupboard does not materially affect the Tribunal’s findings.
The applicant said that she tore up the passport in [Country 1] and put it in the toilet as ordered by the agent. She also had a fake passport that she used to come to Australia. Asked why she did not use the other passport to come to Australia, she said that she does not know, and she was told by the agent to do it. The Tribunal is not clear on why this happened, but it does not undermine the overall findings of the Tribunal that the applicant was harmed by [Mr B] in Sri Lanka.
The delegate of the Department was concerned that the applicant did not know the full name of the policeman who assaulted her. The Tribunal accepts her submissions that she had no way of knowing his full name, but she could identify him in a line up if she had been required to do so.
Does the applicant have a well-founded fear of persecution?
The concept of ‘well-founded fear of persecution’ is defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
· the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
· 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 above; and
· the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A (2) of the Convention.
The Tribunal is satisfied that the applicant fears being persecuted for reasons of her membership of a particular social group of women (discussed further below). She expressed this fear in her hearing with the Tribunal and clearly fears being attacked again, as she has suffered harm in the past and fears similar harm in the future.
Is the persecution for one of the reasons set out in the legislation?
The persecution feared must be for one or more of the reasons provided in s 5J(1)(a) of the Act. These reasons are race, religion, nationality, membership of a particular social group or political opinion.
Section 5L of the Act defines ‘particular social group’ as follows:
.. 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.
The Tribunal is satisfied that the applicant is a member of a particular social group of women, as there is a characteristic shared by each member (gender), which the applicant shares, and the characteristic is an innate or immutable characteristic which also distinguishes her from society, and is not a fear of persecution.
The Tribunal is satisfied that membership of a particular social group is the essential and significant reason for the persecution.[18] In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. In determining the reasons for the harm feared, the courts have held that in matters involving individual animosity, underlying reasons must be considered.[19] In SZFZN v MIAC[20] the Court found that the relevant tribunal was in error when it did not look for the underlying reason for harm feared by a homosexual applicant from his father. The court accepted counsel’s submissions that:
… the Tribunal must have overlooked or misunderstood that, on the proper understanding of the Convention definition, an underlying reason for an incident of persecution could provide the Convention characterisation of its “reason”. The Tribunal must have thought that it was enough to characterise the immediate objective of the person who initiated the persecution, without taking into consideration the cause of his conduct.
[18] Section 5J(4) of the Act.
[19] See e.g., Okere v Mima (1988) 87 FCR 112.
[20] SZFZN v MIAC [2006] FMCA 1153.
DFAT reports that gender-based violence against women in Sri Lanka is widespread.[21] Sources told DFAT that most cases of violence against women are unreported. There is fear of retaliation from the perpetrator, shame and sociocultural norms, which discourage reporting. Domestic violence has increased over the last three years and sexual harassment and violence is prevalent.[22]
[21] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
[22] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
The applicant said that everything that happened to her was because she was a woman. [Mr B] wanted to traffic her as a prostitute in the Middle East, and this led to her father’s death, her kidnapping, and the sexual assaults she endured. She said that if she returns to Sri Lanka she fears male violence as she has been the victim of repeated assaults perpetrated by men taking advantage of her being alone. Reports about violence against women in Sri Lanka refer to violence being a means of maintaining women’s subordination, based on prevailing patriarchal norms, gender stereotypes and negative attitudes based on unequal power relations.[23]
[23] Women in Need, ‘Why accessing justice is challenging for victims of sexual and gender based violence’, June 2019.
The Tribunal is satisfied that the harm she fears – possible assault or sexual assault and other types of physical and mental ill-treatment, would be for the reasons of her membership of a particular social group of women, as the reason for the harm would be the desire by [Mr B] and his associates to control and dominate the applicant because she is a woman.
Is there a real chance of serious harm from [Mr B] and/or the authorities if she returns to Sri Lanka?
The applicant claims to fear harm from [Mr B] and the police. She submitted that she fears harm as a Tamil from Eastern province, a single Tamil woman without familial support, a victim of sexual assault by agents of the Sri Lankan government and a Tamil woman suffering from severe mental health vulnerabilities as a consequence of assaults by [Mr B] and the police. She said that she is a Tamil female and has no relatives to help her. She said that [Mr D] and his wife have broken contact with her. She said that to live peacefully in Sri Lanka a woman needs a family. She said that men will look at her in a demeaning way.
The Tribunal accepts that because she is a single, young Tamil woman, has mental health difficulties and has few family members in Sri Lanka, she may be particularly vulnerable[24] to the harm she fears.
[24] AGA16 v MIBP [2018] FCA 628.
Consistent with the interpretation of ‘well-founded fear’ under the Convention, the ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept,[25] – not only must a person fear persecution, but there must also be a prospect of that fear being realised.
[25] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[26]
[26] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
The Tribunal is satisfied that there is a real chance, in the sense of a substantial chance, of serious harm from [Mr B], the police officer who assaulted her or their associates if she were to return to Sri Lanka in the reasonably foreseeable future.
The Tribunal is satisfied that this harm may involve assault, coercive control, threats, intimidation, sexual assault or trafficking. The reasons for this are as follows.
Firstly, the Tribunal has accepted that the applicant was kept under the coercive control of [Mr B] for a period of nine months and that his intention was to traffic her overseas. [Mr B] had told her that he arranged for her father to be hit over the head, which led to his death, so clearly he is abusive and capable of significant violence. During the time she was locked in the house with him, he sexually assaulted her and threatened her and allowed for her to be sexually assaulted by a police officer. He also kept her from her mother and brother, who he said were placed in a mental institution. The Tribunal is satisfied that the applicant faces serious harm from [Mr B] or the police officer who assaulted her, which could include attempts to traffic her or to silence her about what has happened in the past.
Secondly, as referred to earlier in this decision, violence against women is a significant problem in Sri Lanka[27] and in this environment perpetrators can act with impunity. A United Nations report found that 90 per cent of women and girls had faced harassment in public buses and trains and 1 in 4 reported physical and/or sexual violence.[28] An article in the Sunday Times in October 2024 reported that most cases of domestic violence are not reported, and few women seek protection orders due to stigma, lack of knowledge and lack of financial independence.[29] The article reported that out of 350 women murdered over the last four years, more than 100 were murdered by partners. While the law prohibits violence and rape, enforcement is inconsistent, with women’s organisations reporting police and judiciary responses as inadequate.[30]
[27] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
[28] Department of Census and Statistics quoted in United Nations, Sri Lanka, ‘Towards a safer Sri Lanka: Hundreds March to end Gender based violence’, 26 November 2024.
[29] The Sunday Times, ‘Violence kills over 350 Lankan women in past 4 years’, 13 October 2024.
[30] United States Department of State, ‘Country Report on Human Rights Practices’, 2024.
Although the Sri Lankan government is trying to halt trafficking it remains a significant problem, with women disproportionately affected.[31] A 2024 report on trafficking in Sri Lanka states that ‘traffickers recruit women from rural areas with promises of urban jobs in the hospitality sector, salons, spas, and domestic work but exploit some in forced labor or commercial sex’.[32] Reports suggest large numbers of women are being recruited, with some being held captive, in the Middle East and other countries.[33]
[31] United States Department of State, ‘2024 Trafficking in Persons Report: Sri Lanka’, < Sri Lanka - United States Department of State>.
[32] United States Department of State, ‘2024 Trafficking in Persons Report: Sri Lanka’, < Sri Lanka - United States Department of State>.
[33] Global Press Journal, ‘When the promise of a job is a trap’ 12 August 2024; Tamil Guardian, ‘Women from Sri Lanka’s North-East vulnerable to trafficking for sex work in the Middle East’, 15 August 2018.
The applicant does not have family members to support or protect her and will be particularly vulnerable to the harm feared.
Does the harm relate to all areas of the country (s 5J(1)(c) of the Act)?
100. The serious harm must relate to all areas of the country (s 5J(1)(c) of the Act).
101. The applicant claimed that [Mr B] had threatened her, saying that he had influence with the CID and could find her anywhere. She said that she fears assault and sexual assault from both him and the police officer.
102. The Tribunal is satisfied that the persecution relates to all areas of the country. Sri Lanka is not a large country, and as a young Tamil woman without family, it is more likely that she would move to a Tamil area and it would be easier to locate her. The Tribunal is satisfied that [Mr B] and/or the police officer would be motivated to find her, given that she has knowledge of their illegal activities.
103. The Tribunal is satisfied that the harm relates to all areas of the country.
Are effective protection measures available to the applicant (s 5J(2) of the Act)?
104. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country (s 5(J)(2) of the Act).
105. The applicant submitted that she distrusts authorities as one of the perpetrators was a police officer. DFAT reports that sexual harassment and violence is prevalent and domestic violence has increased over the last three years.[34] In-country sources told DFAT that police and judicial responses can lack sensitivity and empathy, and police often do not take matters seriously.[35] Furthermore, police are not adequately trained in sexual assault and there are inadequate support structures.[36] Language is also a barrier for Tamil women. DFAT assesses that in Tamil areas, state protection is generally inadequate, lacks capacity and can be difficult to access.[37] The United States Department of State Report on Human Rights Practices for 2024 also reflects on reports of inadequate police responses.[38]
[34] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
[35] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
[36] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
[37] Department of Foreign Affairs and Trade, ‘DFAT Country Report Sri Lanka’, 2 May 2024.
[38] United States Department of State, ‘Country Report on Human Rights Practices’, 2024.
106. A report on trafficking in persons in Sri Lanka in 2024 states that despite making significant efforts, the government of Sri Lanka does not meet the minimum standards for elimination of trafficking.[39] The report said that there were few convictions of traffickers and sentences were light. Further, ‘the government appeared unwilling or unable to hold allegedly complicit officials accountable for trafficking, even suspected cases of child sex trafficking’.[40]
[39] United States Department of State, ‘2024 Trafficking in Persons Report: Sri Lanka’, < Sri Lanka - United States Department of State>.
[40] United States Department of State, ‘2024 Trafficking in Persons Report: Sri Lanka’, < Sri Lanka - United States Department of State>.
107. In light of these sources, and the fact that one of the perpetrators who may again seek to harm the applicant is a policeman, the Tribunal is not satisfied that effective protection is available.
Could the applicant modify her behaviour (s 5J(3) of the Act)?
108. 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 (s 5J(3) of the Act).
109. The Tribunal is not satisfied that the applicant could take reasonable steps to modify her behaviour. The only way to avoid [Mr B] and his associates would be to live in hiding. The Tribunal is not satisfied that this is a reasonable step.
Requirements in s 5J(4) of the Act
110. Section 5J(4)(a) of the Act requires that the legislated reason must be the essential and significant reason for the persecution. As found earlier in this decision, the Tribunal is satisfied that the essential and significant reason for the persecution the applicant would face, is her membership of a particular social group of women. The Tribunal is satisfied that there is a real chance that [Mr B] and his associates would harm the applicant because she refused to comply with their wish for her to prostitute for them, and because they had been able to get away with assaulting and sexually assaulting her in the past. The Tribunal is satisfied that at the core of their conduct is a belief that they are able to act in this way towards women.
111. Section 5J(4)(b) of the Act requires that the persecution must involve serious harm to the person. The Tribunal is satisfied that the harm would be serious, as it could include assault, trafficking, threats or sexual assault.
112. Section 5J(4)(c) of the Act requires that the persecution must involve systematic and discriminatory conduct. The Tribunal is satisfied that the persecution would involve systematic and discriminatory conduct. The applicant would be selectively targeted as the victim of the abuse.
Does the applicant have a right to enter and reside in a third country?
113. Having found that the applicant meets the criteria set out in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant has taken all possible steps to avail herself of a right to enter and reside in a country apart from Australia.
114. The Tribunal is not satisfied on the evidence before it that the applicant has the right to enter and reside in a third country.
Findings on the refugee criterion
115. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of a particular social group of women were she to return to Sri Lanka in the reasonably foreseeable future.
CONCLUDING PARAGRAPHS
116. 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 criterion:
· s 36(2)(a) of the Migration Act.
ATTACHMENT A - 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.
…
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