1709438 (Refugee)

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 FGM, as are the Loma people.
A September 2019 update of a report on FGM in Liberia by 28 Too Many[1] indicates that ‘Liberia’s 16 ethnic groups are divided primarily by language’. The Mande is ‘by far the largest linguistic group, which is subdivided into the Mande Ta and the Mande Fu’. The Mande Fu is comprised of the ‘Kpelle, Dan [Gio], Mano, Loma, Gbandi and Mende’, and ‘inhabit the north-west of the country’.[2] The report also indicates that ‘[t]he Mel and the Mande both practise FGM and have various other similarities: their societies are patrilineal and hierarchies are determined by association with the founding ancestor, as ingrained in secret societies’.[3] Another report by 28 Too Many dated September 2018 on the law and FGM in Liberia states that ‘FGM appears to be most commonly practised in the north-western and north-central regions’ of the country.[4]
[1] 28 Too Many describes itself as ‘an international research organisation created to end FGM in the 28 African countries where it is mainly practised and in other countries across the world where members of those communities have migrated’. See: ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.8, 20191015172451
[2] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.26, 20191015172451
[3] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.26, 20191015172451
[4] ‘Liberia: The Law and FGM’, 28 Too Many, September 2018, p.1, 20191015190044
The Loma people are reported to ‘make up 5.1% of the Liberian population’.[5] The September 2019 report on FGM in Liberia notes that ‘Loma society is traditionally polygamous and patrilineal. Marriage ceremonies last many days, and bride wealth is paid over a period of several years. Poro and Sande societies are pervasive, as is FGM’.[6]
[5] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.32, 20191015172451
[6] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.32, 20191015172451
According to a February 2019 article in the Reproductive Health journal, ‘[i]n Liberia, approximately 70% of the women of the North-Central and North-Western regions could have undergone female genital mutilation/cutting (FGM/C) in their childhood during a traditional ceremony marking their entrance into Sande, a secret female society’.[7] It is stated in the article:
[7] ‘‘Birds of the same feathers fly together’: midwives’ experiences with pregnant women and FGM/C complications - a grounded theory study in Liberia’, Reproductive Health, 16:18, 14 February 2019, p.1, 20191015175937
In Liberia, where there is a lack of legislation against FGM/C, approximately 70% of the women of the North Western and North Central regions have undergone FGM/C as a ritual prerequisite to Sande membership.
The Sande is an ancient women-only society that plays a significant economic, political, social, and educational role in Liberia. The existence of Sande, and of the practice of clitoridectomy (FGM/C Type I) in its initiation ceremony, is known since the XVIIth Century. The Sande, and the Poro –its male equivalent, are also present in Sierra Leone (i.e. known as the Bondo or Bundu society) and in Guinea Conakry. Both Sande and Poro place emphasis on secrecy in all their ritual and organizational activities. Women are initiated into Sande before or around puberty. However, their participation in Sande continues throughout their lives.[8]
[8] ‘‘Birds of the same feathers fly together’: midwives’ experiences with pregnant women and FGM/C complications - a grounded theory study in Liberia’, Reproductive Health, 16:18, 14 February 2019, p.2, 20191015175937
The September 2019 report on FGM in Liberia also indicates that ‘Sande is one name for the secret society of women in Liberia, which uses initiation rituals for membership that involve FGM within the bush schools they operate. It is also the name given by members to the spirit mediator between the living and the dead’.[9] The report continues:
[9] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.47, 20191015172451
Traditionally, this institution is central to women’s lives, affording them a measure of political autonomy, respect within the community, freedom of movement and association when the Sande bush school is in session, and power within their communities to mediate social relations and the conditions women live in. At present, the cost of this social good is FGM – or disenfranchisement if it is refused.
…In Liberia, 49.8% of women who have heard of Sande are members. It includes over half of all ethnic groups, including the Kissi, Loma, Gbandi, Gola, Vai, Belle, Kpelle, Mano, Sapo, Mende, Bass and Dan (Gio).[10]
[10] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.47, 20191015172451
In June 2019, at the end of a consultative meeting of traditional leaders, the Ministry of Internal Affairs and the National Council of Chiefs agreed to formally suspend traditional schools including Sande groves, in Liberia for one year.[11] According to an article in Liberian daily newspaper, Front Page Africa, the resolution was in part designed to ‘address some practices within the Sande often referred to as “harmful traditional practices”.’[12] The article stated that traditional leaders had observed that in some localities, women and girls had been subjected ‘into the cultural practices without their consent’. This was ‘in total violation of the rules and guidelines of the Council’.[13] Before the resumption of operations, zoes (Sande leaders) would have to be re-licenced and re-registered, and Poro and Sande groves were to be conducted at least 30 miles away from ‘all city limits’.[14]
[11] 'Liberia: Govt, Chiefs Endorse Suspension of Sande Activities', The New Dawn, 2 July 2019, 20190724114210
[12] 'Liberia: Traditional Leaders Agree to Suspend ‘Bush School’ Activities', Front Page Africa, 27 June 2019, 20190724115429
[13] 'Liberia: Traditional Leaders Agree to Suspend ‘Bush School’ Activities', Front Page Africa, 27 June 2019, 20190724115429
[14] 'Liberia: Traditional Leaders Agree to Suspend ‘Bush School’ Activities', Front Page Africa, 27 June 2019, 20190724115429
According to a Front Page Africa article published in April 2019, the Traditional Council of Chiefs and Elders had agreed to work together with advocates to end FGM but required more time to consult with traditional communities.[15]
[15] ‘Liberia: Woman, 25, Forcefully Taken to Sande Bush for Genital Mutilation’, Johnson-Mbayo, B, Front Page Africa, 30 April 2019, 20191017174831
In relation to religion and FGM in Liberia, the September 2019 report on FGM in Liberia indicates that ‘FGM predates Christianity and Islam and is not exclusive to one religious group. FGM has been justified under Islam, yet many Muslims do not practise it and many agree it is not in the Koran. The Christian Bible does not mention FGM, meaning that Christians in Liberia who practise FGM do so because of cultural custom’.[16] The report also states that ‘[t]he prevalence of FGM among women aged 15–49 who are Christians is 89.5%, among those who are Muslim is 87.5% and among those who practise ‘no religion’ is 87.3%. There is insufficient data available on the prevalence among those who practise traditional religions’.[17]
[16] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.67, 20191015172451
[17] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.67, 20191015172451
An earlier November 2012 article by Global Post, the in-depth and investigative reporting unit of Public Radio International, indicates that ‘[t]en of Liberia's 16 tribes practice FGM; in a country that is 86 percent Christian and 12 percent Muslim, the practice transcends religion. Internal migration and tribal intermarriage resulting from Liberia's civil wars in the 1990s and early 2000s are believed to have spread FGM throughout the country’.[18]
[18] ‘A Dangerous Job: Fighting against female genital mutilation in Liberia’, Baron, E, Global Post, 19 November 2012, 20191015163621
There are reports of girls within various age ranges between eight and 20 being subjected to FGM, with some as young as three. There are also reports of FGM being carried out on adult women.
The September 2019 report by 28 Too Many on FGM in Liberia states that ‘[t]raditionally, girls between the ages of 8 and 20 were initiated, as Sande/FGM is still viewed in some areas as part of a rite of passage into womanhood, adult responsibility and marriage. Although there are reports of much younger girls being initiated, overall it still appears to be older girls, and this means that girls in the 15–19 cohort are still at risk of being cut’.[19] The report also mentions that in Liberia’s largest ethnic group, the Kpelle people, ‘[t]raditionally, every girl will be initiated between the ages of 6 and 16’.[20]
[19] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.53, 20191015172451
[20] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, pp.30-31, 20191015172451
The February 2019 article in the Reproductive Health journal indicates that ‘[i]n Liberia FGM/C [Female Genital Mutilation/Cutting] is done to young girls when they attend the Sande initiation ceremonies’.[21] The September 2018 report by 28 Too Many on the law and FGM in Liberia also indicates that ‘FGM is most likely to take place during adolescence, when young women undergo Sande initiation’.[22]
[21] ‘‘Birds of the same feathers fly together’: midwives’ experiences with pregnant women and FGM/C complications - a grounded theory study in Liberia’, Reproductive Health, 16:18, 14 February 2019, p.2, 20191015175937
[22] ‘Liberia: The Law and FGM’, 28 Too Many, September 2018, p.1, 20191015190044
According to a March 2018 article in the Columbia Journalism Review:
The women’s secret society known as Sande – an ancient organization with its own traditions and religious beliefs, which predates Islam and Christianity – claims that cutting a girl’s genitals is essential for her passage to adulthood. The cutting takes place at the end of a six-month training called a “Bush school,” after which a girl is said to be ready for marriage (this practice generally takes place between ages 13 and 16, but girls as young as 3 have been initiated and cut).[23]
[23] ‘Liberia bans female genital cutting in a triumph for local journalism’, Azango, M and Clarke, P, Columbia Journalism Review, 26 March 2018, 20191016175151
An earlier March 2013 Thomson Reuters Foundation article indicates that ‘FGM, which is practised by half a dozen ethnic groups in Liberia, is generally carried out between the ages of eight and 18. Many girls undergo the ritual at traditional Sande schools which prepare them for adulthood’.[24]
[24] ‘Kidnappers jailed for forcing Liberian woman to undergo FGM’, Batha, E, Thomson Reuters Foundation, 12 March 2013, 20191016183601
The section on Liberia in the Amnesty International Annual Report 2012 states that ‘[f]emale genital mutilation (FGM) remained widespread and was regularly performed on girls between the ages of eight and 18, some as young as three’.[25]
[25] ‘Amnesty International Annual Report 2012 - Liberia’, Amnesty International, 24 May 2012, CX298406
There are also reports of FGM being carried out on adult women. An April 2019 article in Front Page Africa reports on a 25 year old woman being compelled by her maternal relatives ‘to join the Sande bush’, where she was subjected to FGM.[26]
[26] ‘Liberia: Woman, 25, Forcefully Taken to Sande Bush for Genital Mutilation’, Johnson-Mbayo, B, Front Page Africa, 30 April 2019, 20191017174831
A December 2015 report prepared by the Human Rights and Protection Section (HRPS) of the United Nations Mission in Liberia, covering the period between January 2012 and September 2015, refers to ‘seven cases (involving 11 victims) of the Sande society forcibly initiating or attempting to forcibly initiate adult women. In at least five of these cases, FGM was used as a threat or as a punishment for perceived wrongs committed against Sande members’.[27]
[27] ‘An Assessment of Human Rights Issues Emanating from Traditional Practices in Liberia’, Human Rights and Protection Section (HRPS) of the United Nations Mission in Liberia (UNMIL), UN Mission in Liberia (UNMIL) and UN High Commissioner for Human Rights (OHCHR), December 2015, p.17, CISEC96CF15322; See also: ‘LBR105687.FE: Liberia: The Sande secret society, its activities, organization, leaders and consequences of refusing the role of leader; Sande’s power, its treatment of those who speak out against or oppose its practices; state protection for individuals threatened by Sande (2012-November
A more recent May 2017 Africa News article states that ‘Female Genital Mutilation is not illegal in Liberia and widely practiced and accepted as part of the culture of the people. It is carried out as a form of initiation into the secret Sande society for girls and women between the ages of 5 to 40 and above’.[28]
[28] ‘FGM not a violation of anyone’s rights culturally - Liberian judicial nominee’, Akwei, I, Africa News, 27 May 2017, 20191016185353
The September 2019 report by 28 Too Many also mentions that the main sources of data on FGM used in the report are Demographic and Health Surveys (DHS) from 2007 and 2013.[29] According to the report, figures indicate there was ‘a trend, among the younger age-groups, towards smaller percentages of women who are initiated members of Sande (and therefore have most likely undergone FGM). However, there are no statistics for the age at which FGM is performed in either the DHS 2007 or the DHS 2013’.[30] Breaking down the most recent data by age group showed ‘that membership of Sande for women aged 45–49 is 66.1%, while for the youngest age group this has fallen to 26.4%. Despite the fact that a small proportion of women may be cut after the age of 15, the data suggests a trend towards lower prevalence among younger women’.[31]
[29] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.14, 20191015172451
[30] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.53, 20191015172451
[31] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.14, 20191015172451
The September 2019 report also notes that ‘[d]ue to the taboo nature of FGM in Liberia, little research has been done on the prevalence of the practice either outside or within the country’s secret women’s society, Sande. DHS data simply reflects whether or not women have heard of and are members of Sande’.[32] The report indicates that ‘28 Too Many has used this data to recalculate Sande-related statistics so that they are in relation to all women aged 15–49, not just those who have heard of Sande. This puts the data more in line with that presented in our other country profiles’. 28 Too Many acknowledged ‘that the prevalence of Sande membership may not give a complete picture of FGM prevalence across the country; however, at present this is the best data that is available to us’.[33]
[32] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.14, 20191015172451
[33] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.14, 20191015172451
There was also anecdotal evidence from contacts who had worked in Liberia which ‘shows that FGM is also performed on women who are not members of Sande. Therefore, any estimates of FGM prevalence based solely on Sande membership are unreliable. However, until further research can be done, 28 Too Many is only able to report the prevalence of Sande membership’.[34] The report indicates that ‘[a]mong all Liberian women aged 15–49, the prevalence of Sande membership is 44.4%’.[35] There appeared ‘to have been a fall in Sande membership between 2007 and 2013 from 58.2% to 44.4%’, although ‘the data collection for the DHS 2013 took place between 10 March and 18 July 2013, and in March 2013 two women were sent to prison for the abduction and forced initiation of Ruth Berry Peal in 2010; this may have discouraged women from admitting to being Sande members’.[36]
[34] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.52, 20191015172451
[35] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.52, 20191015172451
[36] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.53, 20191015172451
In its December 2016 state party report under Article 40 of the International Covenant on Civil and Political Rights, the Liberian government stated it is committed to eradicating FGM. The report notes:
While Liberia remains one of the three West African nations that have not yet criminalized FGM, there has been strong movement toward limiting or prohibiting the practice in recent years. The Domestic Violence Bill proposed in January 2016 included a provision banning the practice of performing FGM on minors without their parents’ consent, or on adults without consent. This provision was removed by the legislature in April 2016, and this has spurned movement within Government to propose a stand-alone anti-FGM bill, under the leadership of the Ministry of Justice.[37]
[37] 'ICCR. Consideration of reports submitted by States parties under Article 40 of the Covenant - Liberia', United Nations Human Rights Committee, 9 December 2016, p.6, 20191017140247

In January 2018, ‘the former president of Liberia, Ellen Johnson Sirleaf, signed Executive Order No. 92… banning FGM for girls under 18 years of age’. 28 Too Many has reported, however, that there was ‘no evidence that the ban’ was ‘being enforced’,[38] and it expired in January 2019.[39] The US Department of State (USDOS) report on human rights practices in Liberia for 2018 indicates that the executive order also prohibited FGM of ‘persons older than 18 without their consent’.[40] Also, ‘[p]rior to the executive order, the government maintained that a 2011 law protecting children against all forms of violence also proscribes FGM/C, but the law did not specifically prohibit FGM/C. The penal code also prohibits causing bodily harm with a deadly weapon’.[41] The USDOS report notes that ‘[t]here was movement toward limiting or prohibiting the practice of FGM/C’ and ‘[t]he government routinely decried FGM/C in discussions of violence against women’.[42] There remained, however, ‘political resistance to passing legislation criminalizing FGM/C because of the public sensitivity of the topic and its association with particular tribes in populous counties. NGO representatives stated there was little political will within the legislature to take on the issue of FGM/C’.[43]
[38] ‘Liberia: The Law and FGM’, 28 Too Many, September 2018, p.7, 20191015190044
[39] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, pp.43 &106, 20191015172451
[40] ‘Country Reports on Human Rights Practices for 2018 - Liberia’, US Department of State, 14 March 2019, Section 6, p.24, 20190314112842
[41] ‘Country Reports on Human Rights Practices for 2018 - Liberia’, US Department of State, 14 March 2019, Section 6, p.24, 20190314112842
[42] ‘Country Reports on Human Rights Practices for 2018 - Liberia’, US Department of State, 14 March 2019, Section 6, p.24, 20190314112842
[43] ‘Country Reports on Human Rights Practices for 2018 - Liberia’, US Department of State, 14 March 2019, Section 6, p.24, 20190314112842
According to the September 2019 report by 28 Too Many, there was ‘currently no national legislation in Liberia that expressly criminalises and punishes the practice of FGM’.[44]
[44] ‘Country Profile: FGM in Liberia’, 28 Too Many, September 2019, p.42, 20191015172451
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
Given this, the Tribunal is satisfied that there is a real chance the applicant will face serious harm if she returns to Liberia applies to the whole country since even if she could live away from her family which the Tribunal finds unlikely, the FGM practice is throughout Liberia.
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 Cranston
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)   a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

2016)’, Immigration and Refugee Board of Canada, 22 February 2017, OG020B81641

[2019] AATA 6603

23 October 2019

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