1709438 (Refugee) - [2019] AATA 6603

1709438 (Refugee) [2019] AATA 6603 (23 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709438
COUNTRY OF REFERENCE:                  Liberia
MEMBER:Angela Cranston
DATE:23 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 23 October 2019 at 2:39pm
CATCHWORDS
REFUGEE – protection visa – Liberia – social group – young single women – FGM – harm from non-state agents – sande membership – Loma ethnic group – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Liberia, was born on [date] and arrived in Australia [in] July 2014 aged [age]. The applicant applied for the visa on 23 November 2015. In her application, the applicant stated she was born in [a city], Bong County Liberia in [date], that she was Christian and belonged to the Loma ethnic group.
The delegate refused to grant the visa and the applicant applied for review.
The applicant appeared before the Tribunal on 21 October 2019 to give evidence and present arguments. The applicant’s representative also attended. She confirmed she belonged to the Loma ethnic group. She stated she could not return to Liberia because of the impact of Ebola. She also stated they would take her to be part of the society, that her mother lived in the village and that if she returned the applicant would be unable to be in school and would be asked to stay at home. She stated she would be harmed and would be cut on her back and body to be taken into society. When asked why she only first mentioned that last week, she stated she was scared to include it.
The adviser stated that the applicant was finding it difficult to express herself. He stated she was worried about female circumcision (FGM) and other traditions. He stated she was from a Sande society. He also stated that he had known about the claims for two years however they had been raised with him after the primary decision.
Country Information
The Mande linguistic group in Liberia is subdivided into the Mande Ta and the Mande Fu, with the Loma being a sub-group of the Mande Fu. The Mande linguistic group is reported to practice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1709438 (Refugee)

Details

AGLC: 1709438 (Refugee) [2019] AATA 6603
Case: [2019] AATA 6603
Decision Date: 23 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed a well-founded fear of persecution in Liberia due to the risk of female genital mutilation (FGM). The applicant asserted membership in a particular social group comprising young single women. The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for one of the five refugee conventions reasons, or alternatively, whether there were substantial grounds for believing that removal from Australia would result in a real risk of significant harm.

The Tribunal reasoned that the applicant's claims of potential FGM were credible, despite the absence of medical evidence, given her age upon arrival in Australia and the high prevalence of FGM among women in Liberia. It found that young single women constitute a particular social group in Liberia, sharing characteristics and facing stigma, and that the applicant's status as such was the essential and significant reason for the feared persecution. The Tribunal also considered the availability of state protection, noting that the feared harm stemmed from non-state agents. It concluded that effective state protection was not available, as Liberian law does not expressly criminalise FGM, and the prevalence of the practice suggests state tolerance, rendering protection inaccessible and not durable.

Consequently, the Tribunal determined that the applicant satisfied the criterion for a protection visa under section 36(2)(a) of the Migration Act 1958. The decision under review was remitted for reconsideration with a direction that the applicant meets this criterion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE the issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee reasons in Liberia and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Liberia, there is a real risk that she will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration. The applicant has claimed that she is unable to return to Liberia because she will be subject to female genital mutilation if she returns. Although no medical evidence was provided in support of her claims, the Tribunal considers that given that the applicant arrived in Australia when she was [age] and the reports suggest that FGM is prevalent among 89.5% of women aged 15-49 who are Christians, that the applicant’s claims are credible. The Tribunal finds that the applicant is a member of a particular social group comprising young single women. Having carefully considered the relevant country information and the applicant's personal circumstances, the Tribunal finds that there is a real chance that the applicant would suffer harm such as significant physical ill treatment that would amount to persecution should she return to Liberia. The Tribunal is satisfied that given that reports suggest that FGM is prevalent among 89.5% of women aged 15-49 who are Christians, that there is a real chance that the applicant will face serious harm if she returns to Liberia. The Tribunal is also satisfied that the persecution will be a result of systematic and discriminatory conduct in that it will be done to her selectively and intentionally. The Tribunal further finds that the reasons for the harm are the applicant's status as a young single woman. The Tribunal considers that young single women comprise a particular social group in Liberia, given they have shared characteristics and because of the stigma and community identification and judgment which attaches to them. The Tribunal finds that the essential and significant reason for the persecution the applicant faces in Liberia is her membership of this particular social group. Neither does the Tribunal consider that the applicant could take reasonable step to modify her behaviour so as to avoid a real chance of persecution since her young single women status is innate. The Tribunal has gone on to consider whether there is adequate state protection in the applicant's case. The harm feared by the applicant is from non-state agents, that is, members of the broader Liberian community.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees definition. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Angela CranstonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration. The applicant has claimed that she is unable to return to Liberia because she will be subject to female genital mutilation if she returns. Although no medical evidence was provided in support of her claims, the Tribunal considers that given that the applicant arrived in Australia when she was [age] and the reports suggest that FGM is prevalent among 89.5% of women aged 15-49 who are Christians, that the applicant’s claims are credible. The Tribunal finds that the applicant is a member of a particular social group comprising young single women. Having carefully considered the relevant country information and the applicant's personal circumstances, the Tribunal finds that there is a real chance that the applicant would suffer harm such as significant physical ill treatment that would amount to persecution should she return to Liberia. The Tribunal is satisfied that given that reports suggest that FGM is prevalent among 89.5% of women aged 15-49 who are Christians, that there is a real chance that the applicant will face serious harm if she returns to Liberia. The Tribunal is also satisfied that the persecution will be a result of systematic and discriminatory conduct in that it will be done to her selectively and intentionally. The Tribunal further finds that the reasons for the harm are the applicant's status as a young single woman. The Tribunal considers that young single women comprise a particular social group in Liberia, given they have shared characteristics and because of the stigma and community identification and judgment which attaches to them. The Tribunal finds that the essential and significant reason for the persecution the applicant faces in Liberia is her membership of this particular social group. Neither does the Tribunal consider that the applicant could take reasonable step to modify her behaviour so as to avoid a real chance of persecution since her young single women status is innate. The Tribunal has gone on to consider whether there is adequate state protection in the applicant's case. The harm feared by the applicant is from non-state agents, that is, members of the broader Liberian community. Harm from non-state agents may amount to persecution if the State is unwilling and unable to provide adequate protection. It is submitted that the applicant would be unable to seek adequate protection from the Liberian authorities for the harm she fears and such protection would be denied because of her gender and the traditional nature of FGM practice. While Country information suggests that authorities including the Traditional Council of Chiefs and Elders have agreed to work together with advocates to end FGM, country information suggests there is no national legislation in Liberia that expressly criminalises and punishes the practice of FGM and 2019 statistics suggest that FGM is prevalent among 89.5% of Christian women aged 15-49. This suggests State tolerance for the practice. It also indicates that State protection cannot be accessed and is not durable. Accordingly, the Tribunal does not consider effective protection measures are available.