2505372 (Refugee)

[2025] ARTA 1447

2505372 (Refugee) [2025] ARTA 1447 (18 March 2025)

Decision and
Reasons for Decision

Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2505372
Tribunal:	General Member F Robertson
Date:	18 March 2025
Place:	Perth
Decision:	The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth)

Statement made on 18 March 2025 at 7:13am

CATCHWORDS

REFUGEE – Protection Visa – Sri Lanka – feared harm from his father and from his father's enemies – father's general alcoholism and tendency towards violence – suffered domestic violence from father – bisexuality – threats from a money lender – long history of severe and persistent mental illness – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

Statement of reasons

INTRODUCTION

1. This is an application for review of a decision to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

2. The applicant is a [age]-year-old male who is a national of Sri Lanka. The applicant first arrived in Australia in 2019 as the holder of a student visa. The applicant applied for a protection visa in June 2024. The application was refused by a delegate of the Minister for Home Affairs in February 2025.

3. The applicant has applied for review of that decision. The application was heard on 17 March 2025. Following that hearing, I have determined that the review application succeeds on the basis that the applicant satisfies s 36(2)(a) of the Act. These are my reasons.

   CRITERIA FOR THE GRANT OF A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is either, they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds or are a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa).

   Refugee criterion

5. 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 decision‑maker is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[1]

   [1]        Migration Act 1958 (Cth), s 5H(1)(a).

6. 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.[2] Among other things, persecution must involve serious harm[3] and systematic and discriminatory conduct.[4]

   [2]        Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

   [3]        Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act contains a non-exhaustive list of examples of harm that involve serious harm, without otherwise limiting the nature or type of harm that might come within s 5J(4)(b).

   [4]        Migration Act 1958 (Cth), s 5J(4)(c).

7. A fear of persecution will be 'well‑founded' if there is a 'real chance' that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[5] A 'real chance' is a prospect that is not 'remote' or 'far‑fetched', it does not require a likelihood of persecution on the balance of probabilities.[6]

   [5]        Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

   [6]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.

   Complementary protection criterion

8. A person who does not satisfy the ‘refugee criterion’ in s 36(2)(a) of the Act, may satisfy the 'complementary protection criterion' under s 36(2)(aa). That criterion is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a 'necessary and foreseeable consequence' of return to the receiving country.[7]

   [7]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

9. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[8] As to what amounts to 'significant harm’, that term is exhaustively defined in s 36(2A) of the Act.[9]

   [8]        Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 [246] (Lander and Gordon JJ), [296] (Besanko and Jagot JJ), [342] (Flick J).

   [9]        DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); see also Migration Act 1958 (Cth), s 5 in respect of the definitions of 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'.

   BACKGROUND

10. The applicant was born in [year] in Colombo, Sri Lanka.

    Protection visa application

11. The applicant's protection visa application was prepared with the assistance of a solicitor. The application claimed that the applicant feared harm from his father and from his father's enemies. The applicant claimed that his father had enemies from his time spent as a [Occupation 1]. The applicant also claimed that returning to Sri Lanka would adversely affect his mental health and leave him unable to subsist. The claimed reason for the harm feared from the applicant's father was cumulative, citing the applicant's mental health, the failure of his studies and associated 'wastage' of his father's funds and also his father's general alcoholism and tendency towards violence.

12. The protection visa application otherwise indicated that: '[a]pplicant has been convicted of sexual harassment, threat to kill, and possession of weapon without excuse' and that the applicant had been imprisoned for a three-month period in early 2024.

13. A number of documents were provided in support of the protection visa application. Among them was a report from Ms [A], a psychologist, dated 25 March 2024 that was prepared for the purposes of the applicant being sentenced in 2024 ('[Report 1]'). The [Report 1] is detailed and provides an account of the applicant's antecedent history, particularly as it relates to his mental health.

14. Regrettably, [Ms A] was wrongly instructed, by the applicant's then solicitor, that the applicant first came to Australia in 2022. That fact was incorrect. The applicant first came to Australia in 2019. [Ms A] comments on the applicant's claims to have first arrived in Australia in 2019. However, having had the opportunity to read that report I am satisfied that notwithstanding the error in the instruction provided to [Ms A] the report is still deserving of significant weight.

15. In any event, the applicant was interviewed in respect of his claims. I have listened to that interview. As a result of that interview, new claims were raised that were then expanded upon in post hearing submissions. Those claims related to the applicant's sexual orientation and harm feared related to money that was allegedly borrowed.

16. Following the interview, the applicant was provided with additional time to provide further evidence in support of his claims. No further evidence was provided in support of the claims.[10]

    [10]       The evidence that would have been provided has been provided to the Tribunal. It is submitted that this information was provided to the applicant's solicitor (who was not the solicitor who appeared at the hearing of the review application) but that the documentation was not submitted through an oversight.

    Delegate's decision

17. The delegate identified the applicant as having claimed to fear harm from criminal figures due to their father’s employment as a [Occupation 1], violence from his father, persecution due to their bisexuality, threats from a money lender, and difficulties arising from their mental health conditions.

18. The applicant stated that their father, a [Occupation 1], shot a criminal, prompting the family to relocate from Colombo to [a city]. They claimed that the fear of gang violence prevents them from working in [an] industry in Colombo. They also alleged that they suffered domestic violence from their father, who they described as strict and violent throughout their childhood.

19. Further, the applicant stated that they had borrowed three million Sri Lankan rupees in 2021 to fund their education in Australia, with a remaining debt of five million rupees due to interest. They claimed that both they and their mother had received death threats from a money lender. Additionally, they asserted that they are bisexual and fear persecution in Sri Lanka due to the legal and social stigma associated with their sexual orientation.

20. The applicant also claimed to suffer from obsessive-compulsive disorder, schizophrenia, psychosis, and suicidal ideation. They provided medical reports in support of their mental health issues and asserted that they would be unable to access adequate treatment in Sri Lanka.

21. The delegate accepted that the applicant’s parents were [Occupation 1]s, and that the applicant suffers from mental health conditions, including OCD, schizophrenia, psychosis, and suicidal ideation. However, the delegate found that the applicant’s claim of fear of harm from criminal elements in Colombo was not credible due to inconsistencies in his account and a lack of evidence of any threats since the family relocated in 1998.

22. The delegate also rejected the claim of an outstanding debt to a money lender due to an absence of supporting documentation. The claim of bisexuality was not accepted as being credible with the delegate noting it was raised late and was found to have been raised 'for the purpose of sur place claims'. The allegations of domestic violence were also rejected, as the applicant’s past interactions with their father, including a recent extended stay in Sri Lanka, did not align with claimed fear of harm.

23. Whilst acknowledging limitations in Sri Lanka’s mental health care system, the delegate found that mental health services were available and accessible, particularly in Colombo. The delegate concluded that the applicant did not face a real risk of significant harm due to his mental health condition upon return to Sri Lanka.

24. Based on these findings, the delegate determined that the applicant did not satisfy s 36(2)(a) of the Act or s 36(2)(aa) of the Act.

    Review application

25. The applicant applied for review of the delegate's decision in February 2025.

26. The applicant appeared before the Tribunal on 17 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with a Sinhalese interpreter being available, but the applicant participated entirely in English.

27. After close of registry on 14 March 2025, the applicant's solicitor provided additional documents and submissions to the Tribunal. Those documents included a written statement from the applicant and written submissions together with other documentary evidence in support of the applicant's claims. I have taken those documents into account. I note, in particular, that it is submitted that the applicant fears persecution on multiple grounds, including his bisexuality, past engagement in sex work, mental health conditions, history of family violence, threats from money lenders, and risks from underworld gangs. It is submitted that the applicant cannot safely live openly as a bisexual man without facing harm, that Sri Lankan authorities criminalise same-sex relationships and that societal discrimination and violence against LGBTQIA+ individuals is well-documented.

28. It is further submitted that the applicant the applicant has schizophrenia, obsessive-compulsive disorder, depression, and psychotic symptoms.  Those conditions, it is submitted, would bring him to the attention of the Sri Lankan authorities and result in him being harmed. It is submitted mental health services in Sri Lanka are inadequate, and social stigma deters treatment placing the applicant at further risk of harm.

29. The submissions also deal with the claims related to the applicant's father. It is submitted that the applicant's father, a former [Occupation 1], has a history of violence and alcoholism. It is further submitted that the applicant faces serious harm from money lenders and will be exposed to violent debt-collection tactics. It is otherwise submitted that state protection is unavailable, as the authorities are both a source of harm and ineffective in providing protection from others. He argues that internal relocation within Sri Lanka is not a viable option due to his cumulative profile and vulnerabilities.

30. The submissions acknowledge the applicant's delay in raising some claims but submit that these concerns can be attributed to a lack of knowledge, financial difficulties, and mental health issues. The submissions conclude by submitting that the applicant satisfies the criteria for protection under s 36(2)(a) as a refugee and, alternatively, under s 36(2)(aa) for complementary protection due to the real risk of significant harm upon return to Sri Lanka.

    ANALYSIS, FINDINGS AND REASONS

31. An applicant is responsible for providing sufficient evidence to establish their claim to be a person in respect of whom Australia has protection obligations.[11] When assessing the claims made, I am not required to uncritically accept any or all the allegations made.[12] I do not need rebutting evidence before finding a particular factual assertion is not made out.[13]

    [11]       Migration Act 1958 (Cth), s 5AAA; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 [148] (Ladhams J).

    [12]       SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).

    [13]       CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 [7] (Heerey J).

32. I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the Department of Foreign Affairs and Trade ('DFAT') Country Information Report[14] to the extent relevant and material to the disposition of this review application.

    [14]       'DFAT Country Information Report: Sri Lanka', Department of Foreign Affairs and Trade, 02 May 2024, 20240502102807 ('2024 DFAT Report').

    Credibility

33. The assessment of credibility is a difficult task,[15] which should be careful, thoughtful, and conducted fairly and reasonably.[16] Inconsistencies in an account may or may not be significant[17] and allowances may be required where an account is given through an interpreter.[18] I should usually give the benefit of the doubt to those who are generally credible but are unable to substantiate their claims.[19]

    [15]       See Fox v Percy [2003] HCA 22; 214 CLR 118 [31] citing Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 348.

    [16]       See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 [22]–[28] (Kenny, Griffiths and Mortimer JJ).

    [17]       ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).

    [18]       See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 [39]–[45] (Griffiths, Mortimer and Steward JJ).

    [19]       Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 [203]-[204].

    Country of nationality

34. The applicant claims to be a national of Sri Lanka. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Sri Lanka is the applicant’s country of nationality and the receiving country.

    DOES THE APPLICANT SATISFY THE REFUGEE CRITERION?

35. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[20]

    [20]       Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).

    Does the applicant have a well-founded fear of persecution?

36. The applicant was diagnosed with obsessive-compulsive disorder at the age of [age]. His mother took him to a psychiatrist who prescribed [medications]. His symptoms included a fixation on even numbers and checking things four times, though he could not recall how. These symptoms affected his schooling, causing intrusive thoughts, embarrassment, and difficulty concentrating. He took medication for eight to ten months, and while it helped over time, it did not fully resolve his symptoms. He struggled academically and had to repeat Year 12, failing in 2014 before completing it in 2015. He stated that his father was abusive but did not attribute this to his mental health difficulties.

37. In 2011, he stopped taking medication on the advice of his psychiatrist, who told him he needed to manage his condition without it. Between 2011 and 2019, his symptoms decreased significantly. He described himself as 'almost normal' after ceasing medication. In 2019, he came to Australia and was hospitalised in early 2020 for panic attacks. He was prescribed [a medication] but accidentally overdosed due to confusion over the dosage. This led to an involuntary hospital admission in February 2020. Following his release, he returned to Sri Lanka, stating he felt 'almost mentally disabled' and unable to function. He remained in Sri Lanka until the end of 2021, unable to return earlier due to COVID-19 restrictions.

38. In 2022, he was diagnosed with schizophrenia and psychosis. He experienced both voluntary and involuntary hospital admissions. Early in 2022, he believed people were following him. After a conflict with housemates who assaulted him, he became homeless. He later went to [a shop], became confused about payment, and reacted violently, damaging equipment. He also threatened to kill his housemate. This led to a call from the Crisis Assessment and Treatment team and another voluntary hospital admission. He remained in hospital for nearly two months before moving to supported accommodation, where he secured employment doing [specified] jobs.

1. The applicant was involuntarily admitted again at the end of 2022. A few months later, he was admitted for about a month due to concerns he would harm himself. In November 2023, he experienced delusions, believing his hand had changed into an animal. A housemate took him to a mental health facility, where he was admitted voluntarily. He took [medication] for a short period but became homeless and could not afford it.

2. In January 2024, he was seen by a mental health professional. In April 2024, he was sentenced to three months’ imprisonment, with only two weeks remaining to serve at the time of sentencing. After his release, he was taken into immigration detention, where he has remained and continued to remain at the date of the hearing before the Tribunal. The applicant currently takes [medications] and has done so since his imprisonment. He acknowledges the need for these medications and has been compliant, stating that authorities are managing his treatment.

3. As I have already indicated, the applicant relies on a detailed report prepared by [Ms A], a psychologist that was prepared in relation to the sentencing of the applicant. I discussed the matters raised in the report with the applicant at the hearing, including in particular his history of hospital admissions in Australia and his treatment for mental health more generally. The [Report 1] was prepared for the purposes of the applicant being sentenced. The corollary of that is that it was not prepared to support the applicant's claims to be entitled to protection and as such I am prepared to place more weight on statements by the applicant in the context of this report than I am on written statements made by the applicant in the course of advancing his protection claims.

4. The [Report 1] highlights what I consider to be the maladaptive behaviours evident in the applicant's history, his mental health between the ages of 14 and March 2024 and the impact of his mental health in relation to his offending.

5. The [Report 1] notes that the applicant's background reveals early exposure to instability, conflict, and neglect. It records the applicant's claims related to his childhood experiences of witnessing parental disputes and being physically disciplined to the point of losing bladder control. It records his statements that his relationship with his father was strained, and his parents’ occupations resulted in him largely growing up being cared for by neighbours.

6. The [Report 1] observes that, academically and occupationally, he has struggled with commitment and performance. The applicant's oral evidence at the hearing was consistent with that. It records that whilst the applicant describes himself as intelligent, he also reported a decline in academic engagement from age [age] due to obsessive and compulsive behaviours eventually resulting in his withdrawal from school at [age] for a period until his parents intervened. The applicant eventually completed high school after repeating his final year, and thereafter completed a diploma in Sri Lanka. The [Report 1] also notes that the applicant has a fragmented employment history, with his last job ending after a psychiatric admission.

7. The [Report 1] makes clear that the applicant's mental health history is marked by early-onset obsessive-compulsive symptoms, which was later complicated by psychotic features. He was diagnosed with OCD at [age] and reported intrusive thoughts, compulsions, and paranoia. He has a documented history of severe mental illness, including unspecified psychosis and schizophrenia. He has been placed on multiple involuntary treatment orders, and his compliance with medication has been, at best, inconsistent. It further records that the applicant's mental state deteriorated significantly (and it would seem rapidly) in the months preceding his offending in January 2024, which coincided with a period of homelessness and unemployment.

8. The [Report 1] also makes clear that the applicant's social history is one of isolation and avoidance of meaningful connections. He reports limited relationships, was evasive about past intimate relationships, and does not maintain contact with family or friends. As [Ms A] makes clear, the applicant has no evident prosocial supports a factor which [Ms A] considered would contribute to his instability in the future. [Ms A] also considered that the applicant lacked insight, particularly regarding the impact of his actions and mental health.

9. [Ms A] also remarked on the applicant's criminal behaviour, which includes multiple incidents of sexual assault while on bail. He attributes his offending to intrusive thoughts, describing them as “telepathy” or external signals instructing his actions. He minimises his conduct, stating it was “just touching” and expressing a belief that his actions were not inherently immoral. When confronted with the consequences of his actions, the applicant was only able to acknowledge wrongdoing by pointing to his incarceration as demonstrating that his behaviour was wrong rather than any reflective view that what he had did was inherently wrong. At the hearing, the applicant explained that he 'touched' three women on 'their lower back'. It was clear in his oral evidence at the hearing that the applicant continues to have little insight into his past behaviours. I agree that the applicant has a concerning lack of understanding regarding consent and harm. I agree with [Ms A] that this suggests that the applicant shows limited remorse and I am also of the view that the limited remorse shown by the applicant is something that arises from his mental health condition.

10. [Ms A] assessed the applicant's risk of recidivism as 'moderate' due to ongoing instability, lack of support, and mental health concerns. While his current medication compliance has improved symptoms, his history of non-adherence is a significant risk factor. His lack of insight and failure to recognise the severity of his behaviour further contribute to concerns about his future conduct.

11. Significantly, [Ms A] opines that without sustained engagement in treatment and rehabilitation, the applicant's remains vulnerable to further deterioration and offending. Moreover, I consider that it is clear from the applicant's history of both voluntary and involuntary hospital admissions in Australia that absent sustained engagement in treatment, the applicant will almost invariably experience outwardly manifesting displays of symptoms related to his schizophrenia and psychosis. This may, and based on the applicant's history invariably will, lead to him engaging in antisocial, harmful and potentially even criminal conduct towards others.

    Country information

12. In their most recent country information report, DFAT referred to an increase in the prevalence of mental illness following the COVID-19 pandemic and the economic crisis and a survey where over one-quarter of respondents reported someone in their household showing signs of reduced mental health and psychosocial well-being.[21] Schizophrenia and depression were reported as the most prevalent forms of mental illness.[22]

    [21]       2024 DFAT Report, [2.42].

    [22]       2024 DFAT Report, [2.42].   

13. Mental health services are available in Sri Lanka.[23] Government-run hospitals have mental health units, and medication to treat mental illness is provided free of charge through the public system. The Ministry of Health operates a dedicated mental health hospital – the National Institute of Mental Health (NIMH) – in Colombo. The NIMH treats 8,000 patients annually for a range of mental health issues and provides 24-hour emergency care and outpatient facilities.[24] Several mental health helplines are available, including for suicide prevention and a 24/7, toll-free national helpline managed by the NIMH (also accessible through text message).[25]

    [23]       2024 DFAT Report, [2.43].

    [24]       2024 DFAT Report, [2.43].

    [25]       2024 DFAT Report, [2.44].

14. DFAT reported in 2021 that stigma has declined considerably in the last fifteen years, and Sri Lankans now access counselling services more freely, where available.[26] In 2024, DFAT reported positive shifts in community attitudes and said people were becoming more willing to discuss mental health.[27] However, negative community attitudes persist and can deter people from being open about their mental health and seeking treatment.[28] People living with mental illness can experience social isolation and bullying and can find it difficult to obtain employment and marry.[29] As a result, in-country sources told DFAT it was common for people to try to hide their mental illness and avoid treatment unless necessary. That said, DFAT also reports that whilst suicide carries some social stigma, families generally receive sympathy and support from their communities.[30]

    [26]       2021 DFAT Report, [2.27].

    [27]       2024 DFAT Report, [2.46].

    [28]       2024 DFAT Report, [2.46].

    [29]       2024 DFAT Report, [2.46].

    [30]       2024 DFAT Report, [2.42].

15. Access to mental health services is available to all Sri Lankans.[31] While social stigma attached to mental illness is not as acute and widespread as it once was, particularly in Colombo and other major urban centres, it continues to deter many people from seeking necessary support.[32] Understanding of the causes of mental illness can be limited.[33] Mental illness is sometimes attributed to black magic and curses. Some families seek traditional methods to ‘cure’ mental illness, including by local healers.[34]

    [31]       2024 DFAT Report, [2.47].

    [32]       2024 DFAT Report, [2.47].

    [33]       2021 DFAT Report, [2.27].

    [34]       2021 DFAT Report, [2.28].

    Consideration

16. The applicant has a long history of severe and persistent mental illness, including obsessive-compulsive disorder, schizophrenia, and psychosis. His condition has led to multiple hospital admissions, both voluntary and involuntary, and episodes of disordered thinking, delusions, and impaired decision-making. His history demonstrates that, during periods of acute illness, he struggles to control his behaviour and can act in ways that place him at risk.

17. His past actions illustrate how his mental illness compromises his ability to assess risks and respond appropriately to his surroundings. He has experienced paranoia, believing people were following him, and confusion about reality, such as the delusion that his hand had transformed into an animal. He also exhibited impulsive and violent behaviour in response to distress, as seen in [an] incident where he damaged property after a misunderstanding about payment. These incidents show that, during psychotic episodes, he lacks the capacity to regulate his actions or anticipate the consequences.

18. The applicant has also been targeted by others due to his condition. He reported that housemates assaulted him, an event that contributed to his homelessness. I accept that individuals with severe mental illness are at increased risk of harm from others, particularly when they are unable to advocate for themselves or recognise when they are in danger. His past experiences suggest he is especially vulnerable in unstable living situations or without appropriate support.

19. His compliance with medication in detention suggests that structured care helps manage his symptoms. However, his previous homelessness and inability to afford medication show that, outside of a controlled environment, he struggles to maintain treatment. Without medication, his symptoms worsen, increasing his risk of harm through poor decision-making, inability to care for himself, or further psychotic episodes.

20. Given his history, there is a significant prospect that he could be harmed due to his inability to regulate his behaviour or make rational decisions during periods of psychosis or schizophrenia. Without consistent medical care and a stable environment, he is at risk of harming himself, being harmed by others, or experiencing further involuntary hospitalisation due to acute psychiatric deterioration.

21. Whilst I accept that stigma is easing in Sri Lanka in terms of mental health, country information nevertheless supports a conclusion that the associated stigma can deter people from seeking support. I am prepared to accept that the remaining stigma in Sri Lanka is such that it will involve a real chance that the applicant will become non-compliant with prescribed medication and, thus, lead to his mental health issues becoming particularly acute.

22. Whilst I do not accept that the applicant would be unable to obtain treatment in Sri Lanka, I find that it is highly likely that if the applicant were to return to Sri Lanka he would become non-compliant with his medication. Upon becoming non-compliant with his medication, I consider it highly likely that the applicant would engage in antisocial and harmful behaviour towards others.

23. I remind myself that I am not considering the probability of the applicant experiencing serious harm as that term is non-exhaustively defined in the Act. If the chance of the applicant experiencing serious harm cannot properly be found to be 'remote', then the chance is a real chance of serious harm. Having regard to the above, I am not satisfied that the chance of the applicant facing serious harm if returned to Sri Lanka is remote. In those circumstances, I must accept that the chance is a real chance.

    Particular social group

24. The definition of 'particular social group' should be interpreted broadly.[35] The particular social group that the applicant submits he is a member of articulated as 'persons with complex mental health diagnoses'. I am not persuaded that the harm feared by the applicant is for the essential and significant reason of his membership of that group. However, I have considered whether the harm feared by the applicant is for the essential and significant reason of his membership of a particular social group comprised of 'persons with complex mental health conditions impairing their ability to conform to societal expectations of standards of appropriate behaviour'.

    [35]       Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293.

25. The requirements that must be demonstrated to establish membership of a particular social group are set out in s 5L of the Act. It requires consideration of a characteristic that the applicant has, or is perceived to have, and shares with other members of the group. The characteristic must distinguish the group from society, be an innate or immutable characteristic or be so fundamental to applicant's identity or conscience that they should not be forced to renounce it. The characteristic must not be a fear of persecution.

26. I am satisfied that the stated particular social group satisfies s 5L of the Act. I reach that conclusion because persons suffering from complex mental health conditions impairing their ability to conform to societal expectations of standards of appropriate behaviour is a characteristic which can, and would be, shared by each member of the group. On that basis, I find s 5L(a) of the Act is made out.

27. The applicant shares, or would share, the characteristic of having complex mental health conditions which impair his ability to conform to societal expectations of standards of appropriate behaviour. Accordingly, s 5L(b) is made out.

28. I otherwise I am satisfied that s 5L(c), which expresses three alternatives, is made out because the characteristic is innate or immutable or alternatively fundamental to his identity or conscience. Insofar as the applicant is concerned, the characteristic is a consequence of his psychological, neurological and intellectual difficulties.

29. Finally, I am satisfied that the uniting characteristic is not a fear of persecution, accordingly s 5L(d) is made out.

30. The harm which I have identified the applicant as facing a real chance of experiencing is, in my assessment, persecution which is for the essential and significant reason of his membership of the identified particular social group. I am further satisfied that his membership of that particular social group is, and would be, the reason for the applicant facing a real chance of serious harm.

31. In the circumstances I am satisfied that the applicant faces a real chance of serious harm and I am satisfied that it is for the essential and significant reason of the applicant's membership of a particular social group.

    Systematic and discriminatory conduct

32. I am satisfied that the harm feared by the applicant in Sri Lanka involves systematic and discriminatory conduct, because it is harm that is, or would be, inflicted upon individuals with mental health issues and cognitive disabilities, such as those suffered by the applicant. I accept that there is evidence that Sri Lankans with mental impairments face widespread discrimination and social exclusion, which is particularly pronounced in rural areas, where access to mental health services is limited, and societal attitudes toward mental illness are often steeped in stigma and misunderstanding.

33. The systematic nature of this discrimination involves societal stigma and a lack of appropriate understanding by state authorities and society in general in relation to the underlying reason for persons with the degree of impairment that the applicant has acting in the way that they do. I am prepared to accept that the lack of understanding and modification of the response to people in the applicant's circumstances do not involve isolated incidents but are widespread and common. I am satisfied that the conduct is discriminatory because it fails to consider a person's individual circumstances or medical condition, treating them as inferior or unworthy of the same protections afforded to others because of how their symptoms are displayed and observed by the public. I am prepared to accept that the applicant’s mental health issues mean that he is part of a vulnerable group that is systematically marginalised and denied basic rights, including access to adequate medical care and social support. I am further prepared to accept that this discrimination is not only societal but also institutional, as evidenced by the inadequate governmental policies and resources allocated to mental health care, which disproportionately affect those with the most severe conditions, like the applicant. Given these factors, I am satisfied and accept that the persecution involves systematic and discriminatory conduct.

    Does the harm relate to all areas of the country

34. I accept that the harm faced by the applicant relates to the whole of Sri Lanka. I am satisfied that real chance of serious harm faced by the applicant applies to the whole of Sri Lanka because it relates to the consequences of his own conduct following him becoming non-compliant with his medication. The harm is not isolated to a particular area or region. I am not satisfied that there is any place in Sri Lanka where the applicant could relocate to where the chance of serious harm would be remote.

    Modification of behaviour?

35. I have considered whether the applicant could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution. I cannot require the applicant to cease any outward display symptoms of his mental health conditions or otherwise take steps to require the applicant to 'conceal a physical, psychological or intellectual disability'.[36] There is probably a fair question as to whether even requiring a person take prescribed medication would involve a modification of behaviour that would require a person to 'conceal' a psychological disability. However, I do not consider that question is necessary to answer in the present case. That is because I am satisfied that even if the applicant were to be compliant with his medication generally that the chance of the applicant being seriously harmed in the circumstances would not reduce to a level which would not amount to a real chance of serious harm.

    [36]       Migration Act 1958 (Cth), s 5J(3)(c)(iv).

    Are effective protection measures available

1. I have considered whether effective protection measures exist and I am not satisfied that they do. The serious harm which I have accepted that the applicant faces a real chance of is, essentially, unpredictable, and reactive to the outward manifestations of the applicant's mental health conditions and therefore unable to be something that, in my opinion, there can be effective state protection in relation to. Moreover, in view of the societal attitudes towards persons who are psychologically impaired, I do not accept that effective protection measures are accessible or otherwise available. I find that effective protection measures, within the meaning of s 5L of the Act, are not available to the applicant.

   Third country protection

2. There is no evidence that the applicant has a right to enter and resident, permanently or temporarily, in a third country. I find s 36(3) does not apply.

   Does the applicant have a well-founded fear of persecution?

3. For the above reasons, I am satisfied the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act and that the applicant is a refugee within the meaning of the Act. The applicant satisfies the refugee criterion in s 36(2)(a) of the Act.

   CONCLUSION

4. I have found the applicant to be a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). However, as I explained to the applicant at the hearing, a conclusion that he satisfies either s 36(2)(a) or s 36(2)(aa) of the Act will not necessarily lead to the grant of a permanent protection visa. The applicant must still satisfy other criteria, including s 36(1C) of the Act. I make no findings about those other matters other than to note that such an assessment will be required.

5. It was submitted at the hearing that if I were to find that the applicant satisfied s 36(2)(a) of the Act based on the claims related to his mental health, the applicant did not seek that I determine the balance of the claims made. That is the approach I have taken. Additionally, having found that the applicant satisfies the refugee criterion in s 36(2)(a) of the Act, the review application succeeds, and it is unnecessary to determine the alternative criterion as the application should be remitted for reconsideration in accordance with an order that the applicant satisfies s 36(2)(a) of the Act.

   DECISION

6. The Tribunal sets aside the decision under review and remits the application for reconsideration with an order that the applicant must be taken to have satisfied s 36(2)(a) of the Migration Act 1958 (Cth).

Date of hearing:	17 March 2025
Representative for the Applicant:	Mr H S N Balnaves