1815262 (Refugee)

[2023] AATA 3730

1815262 (Refugee) [2023] AATA 3730 (31 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815262

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Angela Cranston

DATE:31 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 August 2023 at 14:34pm

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – claimed anti-FGM profile – fear of the Bondo Sowei society – active member of Eagles Against Females Genital Mutilation (EAFGM) – credibility concerns – inconsistent evidence – applicant’s knowledge in the topic – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Sierra Leone, applied for the visa on 12 April 2018. In his application, the applicant stated that he lived at [Address 1] from [birth]-March 2018.

3.    He also claimed as follows:

I left the country as my life was at risk by the Bondo Sowei society. I very fearful that I would be killed shall I return to Sierra Leone especially when the leaders of the Bondo Soweis are hunting me down.
I would be captured and tortured or killed. These people that are against my work will not spare my life as they see me as a traitor and an enemy to their work. I clearly held the profound belief that not only would I killed but I would be tortured severely. I also know that the Sierra Leone were very reluctant to assist me since they stated to me that the issue I reported about is very sensitive.
Yes my life was threatened and I was badly beaten and tortured. It was only due to my bravely that I was able to escape unharmed. Also, even after reported the incident to the town chief he did not do anything but rather intimidation me to stop meddling into females affairs.
I went to police and the local chief. However of these authorities could assist me. The police stated that it is a sensitive issue and therefore I report to the Local Chief. I then went to report the issue to the Local Chief but to my utmost amazed he accused me of meddling into females affairs and adopted what he called a western ideology.
I relocated to Freetown but even with that the issue continues.

4.    In a further statement he said:

That I was born in Sierra Leone, West Africa in the city of Freetown on [date]. I travelled to Australia when I was [age] years old under a [temporary] Visa.
That I had only intended to leave Sierra Leone due to the threats and discriminatory
treatments that I was facing against my life from members affiliated to the Sierra Leone
Bondo Secret Society.
On or around June 2015, after completing High School I was enrolled at [a] College with the hope to complete a [specified] Program.
Even though I withdrew halfway through the program, however I had already made some contacts from friends whilst I was at the college.
During my time at the college, I became an active member of an organisation called Eagles Against Females Genital Mutilation hereafter ("EAFGM").
The EAFGM is an independent and non-partisan organisation that was initiated through a Whatsapp Forum by few members including Sierra Leone diasporas sometime in late 2015.
The intention was it stand to involve men in the FGM debate in Sierra Leone. Therefore
it is an organisation created by men for men in order to persuade their females
relatives about the negative impact of participating in Female Genital Mutilation.
In the early inception of the organisation, executive member organise meetings with
politicians and stakeholders to pass laws that would eliminate the practice of FGM in
Sierra Leone.
It was during my time at [the] College that I became fully exposed to the realities being the physical trauma and psychological consequences of FGM to females' health in Sierra Leone.
In order to better equip myself, I then further enrolled in some informal seminars and symposiums at central Freetown. It was there that I made the commitment to stand
regardless of the consequence against the practice of FGM using whatever lawful
means possible.
Not long and sometime in late September 2016, our organisation opened its first
physical office in Freetown until this time continue to serve as the head-office for the
organisation. On or about six (6) months later, being March 2017, we further opened 2
additional offices at [District 1] and [location].
Since we do not have proper funding's we rely on the little assistance from committed
members who usually donates funds and as well as providing their houses to be used
as office spaces.
After the opening of the offices in the provinces, I was immediately posted to [District 1]
in order to supervise the affairs of the organisation and along with other three (3) staff-members assisting with administrative tasks.
As the head of the [District 1] branch, I take directions directly from my superior named
[Mr A] who was the director of the organisation stationed at central
Freetown.
In a typical week, my responsibilities entails the engagement in outreach programs,
such as town meetings, schools visits within the community, where I would give a
presentation about FGM to members of the community.
The nature of my work had then made me to become popular in the township of [District 1] but at the same time comes with additional risk as I deemed to cross the dark side
of the leaders of the Bondo secret society known as the Sowei(s).
Since the Bondo is an all female society and couple with some political backing,
speaking out against the practice especially by males is seen as sensitive and
offensive and therefore strictly prohibited.
As a result of my engagement and my active sensitisation, our organisation was seen
as enemy and instantly we started receiving constant death threats and intimidations
from members of the Bondo Society.
[In] September 2017, my house was attacked where females leaders
(Soweis) of the society attended to my house and demanded from my family that they
produce me. Fortunately enough I had already left for Freetown the same day to
attend to some pressing issues.
After having been informed about the incident I wasted no time and together with my
Director we reported the incident to the Police. Having noted my explanation the Sierra
Leone Police stated to me that they are unable to assist in such capacity since it is a
sensitive subject.
The Police further advised that I reported the issue to the town chief at [District 1]
regarding the issue in question. The following weeks after my return from Freetown I
went to the Chief to make a formal complaint.
The Chief informed me that he would investigate the matter and get back to me in due course. Unfortunately after several attempts to get a response, I was vehemently let down by the chief who accused me of meddling into females affairs.
I was further accused that I am a traitor who has adopted western ideology regarding the true nature of FGM practices.
On November [2017] whilst I was out on an outreach program they attacked me
which lead to me being beaten very badly I ran away from the area to try to seek
safety, they went to the home I used as an office and burnt it down.

I further learnt that my boss was also captured by the Sowe(s) and after released had
fled the country. I do not know his current whereabout but I vividly know that he is not
in the country anymore.
[In] March 2018 I travelled to Australia and a few days later being [date]
March 2018 I safely landed in Sydney International Airport.
Once I arrived in Australia, I slept in the streets for 2 days before I met an African
lady and explained my problem, She advised me on which avenue to take and
introduced me to a Sierra Leonean family where I am currently residing now.
I cannot go back to Sierra Leone because I am fearful of my life and if I were to return I
have no doubt I would be killed.
30. I am therefore seeking the protection from the Australia government and its people
since I would be killed if I return back to Sierra Leone. Clearly the authorities cannot
protect me nether defend if I were to be attacked by anyone including members of the
Bondo society.

5.    He also provided photos of a building on fire and photos of scars on his body.

6.    The delegate refused to grant the visa and the applicant applied for review. The applicant provided a copy of that decision to the Tribunal.

7.    The applicant appeared before the Tribunal on 24 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.

8.    The applicant stated he came to Australia in March 2018. He stated his protection visa application and statement had been read back to him and were correct. He stated before he came to Australia, he lived in Freetown but in March 2017 he spent 4-5 months in [District 1]. He stated he only returned to Freetown permanently when he was attacked in around September 2017. He stated he came to Australia because he was a member of an organisation called Eagles Against Female Genital Mutilation which spoke against the Bondo society and he was beaten and they broke his teeth. He stated his life was in danger.

9.    The applicant stated he had been physically attacked two to three times. He then stated he was physically attacked twice, first in September 2017 during an election rally. He stated he was attacked by the Bondo people who were male and female, he was beaten, and his teeth were broken and there were scars on his body.  He stated he was in public with a colleague who ran, but the applicant didn’t manage to escape and was attacked by about 4 men and women who beat him. He also said they went to his house at [District 1] where the office was, but they were not able to get onto any of them. He stated he was again attacked in November which was severe, and they also attacked the office and burnt it down. When asked if he could say more about the attack, for example where he was when he was attacked, he stated when the house was burnt down, he came down to Freetown and made a report.

10.      The Tribunal put to him his statement said he was physically attacked once in November when he was beaten and not in September, that his house was attacked in September but he was not there and had left for Freetown. He stated he had forgotten over the years and had stress thinking about it. The Tribunal also put to him that he told the Department at interview that they used razor blades when he was attacked. He agreed. The Tribunal put to him that was not in his statement which said he was beaten as did the newspaper article. He then showed the Tribunal his stomach that had some marks on it.  The applicant stated he didn’t know about the newspaper article as he had learnt about that from a friend. The Tribunal also put to him this was the first time it had heard they damaged his teeth. He stated he forgot but had said he had scars over his body and was beaten.

11.      The applicant stated that the Sierra Leone government had never banned FGM. The Tribunal put to him it understood it had banned FGM while he was in Sierra Leone during the Ebola outbreak and in February to March 2018. He stated during that time, he was preparing to come to Australia and his office had burnt down so he did not know. He also stated everything stopped during Ebola.

12.      The applicant stated that it happened more in the provinces and 75% of women in the provinces had undergone FGM. When asked about how many women in all of Sierra Leone had undergone FGM, he said 70% when he was in Sierra Leone. The Tribunal put to him that in 2019, statistics indicated 83% of women under undergone FGM in 2019.

13.      When asked what countries had prohibited FGM in Africa, he stated Kenya, South Africa and Zimbabwe were trying to ban it. He then stated he did not know if they banned it.  The Tribunal put to him it understood that Kenya, South Africa and Zimbabwe had domestic legislation that prohibited FGM or allowed it to be prosecuted.  He stated that is why he said they were trying to ban it but did not know if they had done that. The Tribunal also put he may have taken some interest in this if he worked in the area. He stated he knew the three countries were trying but he knew more about Sierra Leone

14.      The applicant stated that [District 1] had not signed a memorandum of understanding about FGM. The Tribunal put to him it understood that they had signed a memorandum of understanding in 2012 banning FGM among children. He stated what was on the internet was not reality.   

15.      The applicant stated he obtained a visa for [Country 1] because of the problems he encountered. When it was put to him that he obtained that visa in 2016 which was before he said he was attacked he stated he had been threatened. The Tribunal put to him that this was even before he went to [District 1], and he stated he was threatened during the Whatsapp discussions.  

16.      The Tribunal put to the applicant it may find he gave inconsistent evidence in relation to the number of times he was physically attacked. He stated that it was years ago and talking about it made him feel bad. The Tribunal also put to him it may not be satisfied that he had displayed knowledge consistent with someone who worked in the area. He stated he concentrated on Sierra Leone, they had no phones, and they were in the provinces. The Tribunal put to him he was not unintelligent and had been doing a [specified] course but had been unable to state the number of women cut and when FGM had been banned in Sierra Leone. He said he concentrated on the villages. He then stated other persons had lost their lives including one in a similar situation who had returned to Sierra Leone.

COUNTRY INFORMATION

Prevalence of Female Genital Mutilation practices in Sierra Leone.

17.      A September 2021 report by 28 Too Many on female genital mutilation (FGM) in Sierra Leone indicates that the prevalence of FGM in women aged 15-49 years in Sierra Leone is 83 per cent. According to the report: There has been a slight reduction in the overall prevalence of FGM in Sierra Leone from 91.3% in 2008 to 89.6% in 2013, and more recently to 83.0% in 2019, according to the Demographic and Health Surveys (DHS). Nonetheless, Sierra Leone still has the sixth-highest FGM prevalence in the world and is classified as a ‘Group One (very high prevalence) country’, according to the UNICEF classification. 45.0% of women aged 15-49 who have undergone FGM were cut between the ages of 10 and 14. The prevalence for women aged 45-49 is 94.9%, while for the youngest age group, this has fallen to 61.1% indicating a reduction in the trend among younger women.

18.      FGM is not prohibited by law in Sierra Leone.[1] Some districts, including [District 1], have developed ‘Memorandums of Understanding’ against FGM[2], but FGM continues to be widely practiced.[3]

[1] [Source redacted]

[2] [Source redacted]

[3] [Source redacted]

19.      According to a 2021 report by anti-FGM advocacy organisation 28 Too Many, [District 1] was one of 8 of Sierra Leone’s 14 districts which signed a Memorandum of Understanding (MOU) banning FGM among children in 2012. The report notes, however, that the practice continues in many of these districts.[4] A 2018 report by 28 Too Many notes that such MOUs are voluntary and have no legal standing.[5]

Temporary bans on FGM

[4] [Source redacted]

[5] 'Sierra Leone: The Law and FGM', 28 Too Many, September 2018, p.3 (p.4 of PDF), 20211123112620

20.      According to a 2023 Plan International report, in response to the 2014 Ebola epidemic, Sierra Leone ‘imposed a ban and a substantial fine on the practice of FGM/C [female genital mutilation/cutting] for fear that it would spread the disease, which led to a temporary, although dramatic and substantial decline in the prevalence of FGM/C in Sierra Leone during the epidemic.’[6]

[6] 'Female Genital Mutilation/Cutting - Policy Brief - February 2023', Plan International, 2 February 2023, 20230804152330

21.      A June 2022 article in The New York Times states:

When Sierra Leone experienced an epidemic of Ebola virus from 2014 to 2016, the government temporarily outlawed the practice, and traditional and faith leaders helped promote the ban. It has since ended, but activists said it made a space for a public conversation about bondo that had never existed before, and likely contributed to a rise in young women resisting.[7]

[7] 'Risking a Society’s Retribution, Growing Numbers of Girls Resist Genital Cutting', Stephanie Nolen, The New York Times, 14 June 2022, p.5, 20230811111207

22.      A February 2022 report in local news source Concord Times states:

In 2014, the government of Sierra Leone placed a countrywide ban on FGM to control the spread of the Ebola Virus Disease. Individuals found guilty of carrying out the practice were fined; this action led to the reduction in the prevalence of reported FGM cases.

23.      But the practice naturally resumed and has since then continued uninterrupted until recently in 2020 when Covid-19 pandemic ravage the country than another ban was instituted, though was never effective. Reports of women and girls being kidnapped and forced to undergo the cut are remains common.[8]

[8] 'Impact of FGM on Sierra Leonean women', Concord Times, 22 February 2022, 20220426165701

24.      There were also temporary bans on FGM by the government during the March 2018 elections, and in January 2019 in response to political violence related to men’s secret societies.

African countries banning FGM

25.      According to a February 2022 FAQ from UNFPA, the following African countries have domestic legislation that either specifically prohibits female genital mutilation (FGM) or allows FGM to be prosecuted through other laws, such as the criminal or penal code, child protection laws, violence against women laws or domestic violence laws:

26.      Algeria (2015); Benin (2003); Burkina Faso (1996); Cameroon (2016); Central African Republic (1996, 2006); Chad (2002); Comoros (1982); Congo Republic (2002); Côte d'Ivoire (1998); Djibouti (1994, 2009); Democratic Republic of the Congo (2006); Egypt (2008); Eritrea (2007, 2015); Ethiopia (2004); The Gambia (2015); Ghana (1994, 2007); Guinea (1965, 2000, 2016); Guinea Bissau (2011); Liberia (2018, by one-year executive order); Kenya (2001, 2011); Malawi (2000); Mauritania (2005); Mozambique (2014); Niger (2003); Nigeria (2015); Senegal (1999); Sierra Leone (2007); Somalia (2001)*; South Africa (2005); Sudan (2020); South Sudan (2008); Tanzania (1998); Togo (1998); Uganda (2010); Zambia (2005, 2011); Zimbabwe (2006).[9]

[9] 'Female genital mutilation (FGM) frequently asked questions', United Nations Population Fund (UNFPA), February 2022, 20230808151948

27.      According to an October 2022 report by the African Union Commission, ‘22 out of 29 FGM practicing African countries have national laws in place banning FGM.’[10]

[10] 'Getting to Zero Female Genital Mutilation in Africa Report', African Union Commission, 20 October 2022, p.72, 20230719104101

CRITERIA FOR A PROTECTION VISA

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

29.      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.

30.      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).

31.      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.

32.      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

33.      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

34.The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Sierra Leone and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Sierra Leone, there is a real risk that he will suffer significant harm.

35.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

36.In his protection visa application, the applicant stated that he left Sierra Leone because his life was at risk by the Bondo Sowei society. In a further statement, he stated that during college he became an active member of Eagles Against Females Genital Mutilation, that in March 2017 they opened an office at [District 1] where he was posted, that [in] September 2017 his house was attacked but that fortunately he had already left for Freetown the same day, and that on November 18 2017 while he was out on an outreach program he was attacked which lead to him being beaten very badly.

37.However, at hearing, the applicant stated that he was physically attacked twice, first in September 2017 during an election rally where he was attacked by the Bondo people who were male and female, where he was beaten, his teeth were broken and there were scars on his body.  He also stated he was again attacked in November 2017 which was severe, and they also attacked the office and burnt it down.

38.The Tribunal finds the applicant’s evidence about how many times and circumstances of the alleged physical attacks against him have changed. When this was put to him at hearing, he stated he had forgotten over the years and had stress thinking about it however the Tribunal does not accept that someone who was allegedly physically attacked once or even twice would be unable to recall the number of times he was physically attacked. In addition, the Tribunal finds that the applicant’s evidence in relation to the alleged injuries he sustained during the attack has changed with each telling, that is his statement said he was beaten however, as recorded in the departmental decision which the applicant gave the Tribunal, he told the Department at interview that they used razor blades and he told the Tribunal they had broken his teeth. When this and the fact that the newspaper article had only stated that he was beaten was put to the applicant at hearing, he stated he told the Department he had scars over his body and had shown the Department scars on his stomach and forgot to tell them about his teeth. He also stated he did not know about the newspaper article.

39.The Tribunal does not accept that someone who was allegedly attacked with razor blades or whose teeth were broken would not have been able to consistently state that they had been attacked with razor blades or that their teeth had been broken.  In reaching its conclusions, the Tribunal has considered the newspaper article entitled “[Title]”. This article states that “whilst he was out on an outreach programme, [the applicant] was attacked and badly beaten”  however the Tribunal is not satisfied that this article,  which appears in a newspaper on 20 March 2018, a date not contemporaneous with the applicant’s alleged attack, is genuine given that the article is grammatically poorly written for example it states ‘it was also intimated that in a typical week, his responsibilities encompassed and the zest of exposing their cruel culture and tradition intensified.’ The Tribunal does not accept that this article is evidence in support of the applicant’s claims. While the applicant also provided a photo of a burning building, the Tribunal does not accept that the applicant is credible nor that the photo is of his attacked house as claimed. While the Tribunal accepts the applicant may have some scarring on his body and broken teeth, the Tribunal does not accept that he has sustained those injuries for the reasons he claimed. 

40.In reaching these conclusions, the Tribunal also considers that the applicant did not display a knowledge at hearing that is consistent with his alleged involvement in an organisation based in Freetown and [District 1] that was engaged in educating people about the negative impact of participating in Female General Mutilation, that is he was unable to discuss or provide accurate information such as to the prevalence of FGM in Sierra Leone, when the Sierra Leonean government imposed temporary bans on FGM, whether [District 1] had signed a memorandum of understanding and the nature of that memorandum, and which other African Countries had prohibited FGM. When this was put to the applicant at hearing, he stated he knew about Sierra Leone but was in the provinces and did not have a telephone and what was on the internet was not reality. He also stated that when FGM was banned at the time of the election, his office had burnt down so he did not know and that everything stopped during Ebola however the Tribunal does not consider it unreasonable to assume that if the applicant, who was undertaking a [specified] course when allegedly first made aware of FGM and who allegedly enrolled in further information seminars to pursue his interest in FGM and was on a WhatsApp group would be able to accurately discuss things such as the prevalence of FGM in Sierra Leone,  when the government imposed temporary bans on FGM and if [District 1] had signed a memorandum of understanding if in fact the applicant was engaged in an organisation in Freetown and [District 1] that was actively against FGM. In addition, the Tribunal does not consider it unreasonable to find that if the applicant had been working in [District 1] on FGM issues, that he would know that [District 1] had signed a memorandum of understanding banning FGM among children in 2012.

41.The Tribunal does not accept that the applicant has been telling the truth nor that he has been recounting events that have occurred. The Tribunal does not accept that the applicant attended seminars against FGM, nor that he campaigned or will campaign against FGM, nor that he became or will become an active member of an organisation called EAFGM nor any other organisation against FGM.  Neither does the Tribunal accept that he was threatened nor attacked nor that his house was attacked nor that he fled Sierra Leone. Neither does it accept he has nor will have an anti FGM profile. In reaching these conclusions, the Tribunal has also considered the letter from [Mr B] that stated that before migrating to Australia, the applicant advocated for the discontinuance of FGM however [Mr B] also states he met the applicant in Sydney in 2018, so does not have any personal knowledge of what the applicant allegedly did.

42.After considering the applicant's articulated claims, the Tribunal is not satisfied that if the applicant returns to Sierra Leone, he has a real chance of serious harm in the reasonably foreseeable future. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Definition. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

43.The Tribunal has rejected all the applicants claims and does not accept he has or will have an anti FGM profile.  Given this, the Tribunal is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

44.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

45.      The Tribunal affirms the decision not to grant the applicant a protection visa.

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.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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