1816229 (Refugee)

[2023] AATA 1566

1816229 (Refugee) [2023] AATA 1566 (29 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Marta Mamarot

CASE NUMBER:  1816229

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Meena Sripathy

DATE:29 March 2023

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 29 March 2023 at 10:20am

CATCHWORDS

REFUGEE – Protection Visa – Sierra Leone – fears harm from her husband – applicant experienced domestic violence from her husband – past attempts to escape abuse and leave –membership of particular social groups – women subjected to early or forced marriage in Sierra Leone – applicant has a well-founded fear of persecution – State protection is not available to the applicant – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 91, 424, 499

Migration Regulations 1994, Schedule 2

CASES

MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347

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 25 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 18 April 2018. The delegate refused to grant the visa because delegate was not satisfied that she was a refugee as defined by s5H(1) of the Act or that there was a real risk she will suffer significant harm as outlined in s36(2)(aa) for the purposes of the complementary protection criterion.

3. The applicant appeared before the Tribunal on 1 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages. The applicant was represented in relation to the review.

4. The issues in this case are whether there is a real chance, if the applicant returns to Sierra Leone that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Sierra Leone, there is a real risk that she will suffer significant harm.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Relevant to the present application, the Tribunal has considered the DFAT Thematic Report -Economic Community of West African States (ECOWAS) issued on 3 December 2020. There is no country report for Sierra Leone by DFAT.  

    CONSIDERATION OF Claims and evidence

12. Information in the application form indicates the applicant is a [age] year old woman born in Freetown Sierra Leone.  She has parents, two daughters and an adopted son, a sister and two half siblings. She states she was in a relationship since September 2004 and separated in September 2007 (sic). She arrived in Australia on [date] March 2018, traveling on her own passport which was valid from [2017] to [2022]. She provides one residential address in Freetown Sierra Leone from February 2006 to September 2017. No details about the applicant’s education or employment history are provided in the application.  The applicant states that she fears harm from her husband if returned to Sierra Leone, and that she was threatened, beaten and tortured by him.  She tried unsuccessfully to seek help from friends and police.

13. The applicant provided a Statutory Declaration dated 17 April 2018 with the following further information relating to her protection claims:

    ·At the age of [age] years, in September 2004, she was informed by her parents that she would be married to a man named [Mr A], who was [age] years at the time. She later learned that her parents took a sum of money from [Mr A] in exchange for her marriage.

    ·In March 2005 she was taken by her parents to Freetown to meet [Mr A].  She was left with her aunt [for] 6 months so that [Mr A] could spend time with her.

    ·On [date] February 2006 she was married to [Mr A] in a traditional ceremony, attended by family and friends in Freetown, and moved out to live with him from that time.

    ·From June 2006, pregnant with their first child, she started to experience sexual, physical, verbal and psychological abuse at the hands of her husband. She suffered a miscarriage as a result of the pain and suffering experienced. 

    ·From September 2006 the violent beatings and harsh treatment from [Mr A] started again because of her refusal to have sex with him. She travelled to her parents and informed them of his treatment of her but they sent her back to him.

    ·In October 2006 she was subjected to another bad beating.

    ·While pregnant with her first child, her husband beat her and raped her. She reported it to the police. They took a statement from her and told her they will talk to her husband, but they also asked her if she was mad to report her husband and said that they cannot do anything.

    ·When her husband heard she reported him he hit her and forced her to leave the house. She stayed with some friends for a period.  During this time, elders were called to try and mediate between the applicant and her husband.

    ·She gave birth to a baby girl in [year], and hoped that the treatment would subside after that but it did not. He continued to abuse and molest her, and also the child.  For example one day he threw cold water on her and the baby because she was crying.

    ·In September 2010, while the applicant was ironing, they had an argument and the iron was knocked and fell on their daughter’s foot and burned her. She took her to the hospital and tried to report it to the police but they did not intervene because it was a family matter.

    ·In 2013 she was pregnant with a second child, and was severely beaten and maltreated during this time, including being deprived of her basic needs including food.  Her second child was born in [2014], and was malnourished and had permanent [deformities]. 

    ·In August 2014 the applicant overheard her husband on the phone and came to know he had a son with another woman.

    ·In or around 2016 she left and went into hiding. Her husband reported her to the police and accused her of child trafficking. In February 2017, while travelling to Kambia she was arrested by police and detained for 5 hours.

    ·In September 2017 she could not take it any more, she abandoned the marriage and her children were removed from her. She had no rights or protection in her country.

    ·In October 2017 she heard from her friends about [an organisation] assisting people to come to [Australia].  She enrolled in the program and after telling them her story they told her they would assist her.

    ·She fears return to Sierra Leone because her life would be at risk from her husband. The government is unable to protect her.  Women are not respected in her country.

14. The applicant was invited to, and attended, a Department interview on 17 May 2018.  An audio recording of the interview is included in the documents provided to the Tribunal and the Tribunal has listened to the recording.  At the Department interview, the applicant was questioned about her travel to, and circumstances in, Australia; her family composition in Sierra Leone; and her past experiences with her husband in Sierra Leone and reasons why she left her country. The applicant gave evidence about her friendship with a woman named [Ms B] who knew about her ill treatment by her husband and who supported her in the past and to come to Australia. She told the delegate that she last saw her children when she left home where she was living with them and her husband in September 2017.  She said that this was also the last time she saw her husband. She said she went to her friend [Ms B] in an area called [Area 1] and told her she is tired of the abuse and the relationship with her husband.  Her friend helped her to come to Australia.  She gave her money to obtain a passport and arranged for her to get a visa and to travel [to] Australia. 

15. On 25 May 2018, the delegate made a decision to refuse the application. The delegate accepted that the applicant had experienced domestic violence from her husband in Sierra Leone in the past; had experienced pressure from the community and her family to return to and remain with her husband; and had a subjective fear of harm from her husband if she returned to Sierra Leone; but had concerns about the credibility of her evidence about her travel and circumstances in Australia. The delegate found the applicant had not seen or been harmed by her husband since September 2017.  Taking account of these findings and country information about the circumstances of violence against women and treatment of single and divorced women in Sierra Leone, the delegate was not satisfied that the applicant faced a real chance of serious harm from her husband upon return in the future. In reaching this conclusion, the delegate had regard to the fact that the applicant left her husband in 2016 and 2017 and he did not seek her to harm her then, and she did not claim to have suffered harm from her family or community. The delegate concluded the applicant could return to Freetown and would be able to obtain support from her friend [Ms B] who supported her in the past. 

16. The delegate also considered whether the applicant would suffer harm for reasons of her failure to return at the conclusion of the [trip] but was not satisfied she faced a real chance of persecution upon return or this or any other reason; and that for the same reasons there was no real chance, there was also no real risk she would face significant harm.

    Evidence before the Tribunal

17. On 25 November 2022 the Tribunal received a “Tender Bundle of Evidence” from the applicant’s representative, appointed in December 2021, containing the following :

    ·Statutory Declaration by the applicant dated 23 November 2022

    ·Letter from Jesuit Refugee Service dated 21 November 2022 regarding services accessed by the applicant in 2018 and 2019

    ·Story purportedly about the applicant published in [media]

    ·Patient Discharge Form, [a] Community Health Centre Freetown, Sierra Leone dated 10 October 2006 relating to an admission on 7 October 2006

    ·Police Report dated [February] 2017 relating to a complaint by the applicant against threats to her life made by her husband

18. The applicant’s Statutory Declaration of 23 November 2022 provides the following information which added some new details to her claims:

    ·She is of the Temne tribe and was raised a Muslim

    ·She has a total of [number] [siblings]. Both her parents are alive and live in [Makeni], Sierra Leone

    ·She moved to Freetown in 2006 to live with her sister until she was married.

    ·Her husband was married before he married her.

    ·Her husband did contract work for political [parties].  He had money and was well connected with the police and politicians.

    ·She had a miscarriage after her first pregnancy and was taken to hospital on that occasion when she lost the baby.

    ·During her second pregnancy, her husband was forcing her to have sex against her will and beat her, and she left for a few days and stayed with her friend [Ms B].

    ·When her first daughter, [Miss C] was around [age], her husband wanted to have her circumcised.  The applicant was against it because it happened to her also and they argued about it. Her husband’s mother wanted to do it because she is the village head and conducts the circumcisions.

    ·The applicant was raped and abused during her marriage. Her husband often beat her when he was drunk.

    ·She met [Ms B] for the first time after she moved into her house with her husband as she lived across the road. Later [Ms B] moved with her family to [Area 1], Freetown.  The applicant stayed with her in [Area 1] when she was pregnant with her first child.  It was at this time that she asked the community to help her reconcile with her husband.

    ·When the applicant was pregnant with her second child in 2013/2014 she was forced to sleep with her husband and he beat her badly. She went to the hospital about 6 times during this pregnancy. The child, [Miss D], was subsequently born with [problems].

    ·In 2016 she went into hiding with her daughters and [Ms B] helped her with money to go to [Country 1] to see her family. Her husband complained to police and she was arrested near the border and detained for 5 hours. She told the police she was leaving because he wanted to do female circumcision on her daughters but they did not care and accused her of child trafficking.  She ended up returning to her husband.

    ·In September 2017 she thought nothing bad would happen if she stayed with her children. But he kept following them and was very controlling. She gave her children to her mother.  [Ms B] and [Ms B]’s husband gave her money and help to come to Australia.  [Ms B]’s husband knew [people].

    ·The applicant fears harm from her husband if she returns to Sierra Leone because she has hurt his pride by leaving him.

    ·She fears her children’s lives will be in danger also if she returns.

    ·Her children are in her mother’s care but she is old.  Their father went to the school three weeks ago and was told the father is not allowed to take the girls.

    ·Her husband still asks about her and has been harassing her mother to tell him where she is. He told her there will be a problem when he sees her. Earlier this year her sister [Ms E] received a voice message from her husband which she forwarded to her.  She knows he wants to kill her.

    Tribunal hearing 1 December 2022

19. The applicant confirmed her current address, in [a suburb], where is has been living for the last 2-3 years, and for the past 7 months with her partner, who is an Australian resident. She works part [time].  She has been working consistently since soon after coming to Australia and has been sending money to her family and for her children since then. 

20. She prepared her application by herself, with limited assistance from a lawyer [who] mainly assisted with English language corrections.

21. The applicant confirmed she has no family in Australia.  In Sierra Leone she has her parents, siblings, children and ex husband. Her parents still live in [Makeni], where she lived until she came to Freetown after marriage. Her father was once a soldier but has been retired for a long time. Her mother is a housewife and also sells snack food on the streets. When asked how they are financially supported she said her ex husband has long been providing support of rice and money. Her father has around [number] children by four wives, only two of whom are still with him. The applicant has relationships with around 7 of her siblings only.  She has four siblings who live in Freetown and the others are in Makeni.  She has two full siblings, her sisters [Ms E] and [name] who live in Freetown.  She is in regular contact with [Ms E].  The applicant has two daughters, [Miss C] and [Miss D]. Her ex husband also has a son, and she recently heard that he had a new baby with a new woman.

22. The Tribunal asked where the children are. She said when she left Sierra Leone they were with her ex husband in [Freetown], but since last year or so they are living with her mother in Freetown. When asked why they came to live with her, she said it was after her daughter [Miss C] told her she had been raped at her father’s house. The applicant said she had recently bought [Miss C] a phone, arranged by [Ms E], and this was how she came to tell her this information.  She told her it happened when her father was not home.  There was another woman living there also, and men and came went from the house and it was one of these men who raped her. The applicant says she recalls the day she heard this news because she had a car accident that same day. The applicant explained that since she is in Australia she began contact with her daughters through the school.  She took over paying the school fees when her husband ceased after she left.  She pays for it by sending money to [Ms E] who makes the payments. The applicant has been sending money to [Ms E] since she came here, for her mother and for her daughters’ school. Her mother came to Freetown and took the children from the husband after she told them what happened. Her mother lives with her sister and the applicant’s children in Freetown.

1. Regarding her travel history, the applicant confirmed that prior to travelling to Australia in March 2018 she had not left Sierra Leone, apart from the one attempt to go to [Country 1] in 2017, when she was stopped at Kambia by the police. She confirmed she applied for her passport in 2017 to be able to obtain an Australia visa.  Her passport expired in [2022] and she does not know what is required to get it renewed.

2. She had informal lessons in her village until she was [age] or [age] years old, and then moved to Freetown to get married.  She had a traditional marriage (never registered) in 2006.  She had some vocational classes after marriage for about one year, until her husband stopped paying for the classes.  She never worked in Sierra Leone.

3. The Tribunal asked the applicant why she made this application. She said she experienced domestic violence from her husband for a very long time. He forced her to have sex all the time, even when she was pregnant, and beat her constantly. The mistreatment began from the beginning of the marriage.  He was alright during the day but in the evenings he would come home drunk and treat her badly.  She tried to go back to her family at the beginning but they sent her back telling her to be patient. She went to the police for the first time when she was pregnant in 2007. They said they would talk to him. The police did talk to him, but that night when he came home he beat her again. She did not return to the police after that.

4. The Tribunal asked if she complained to anyone else about his behaviour and treatment. She said she tried to tell her mother and siblings but they all told her to accept it. Her sisters could not talk to him because he was a man. Her brothers did not do anything to support her. The only person who offered any help was a friend called [Ms B]. She originally lived across the road from the applicant and her husband.  Later she moved to [Area 1], an area a bit further away. When asked why [Ms B] supported her more than her parents and siblings the applicant said that unlike them she had a job and some money.  She was married also and her husband agreed for her to support the applicant. At one point [Ms B] tried to get the elders involved and arranged a conciliation. This was in 2007 before her first child was born. He promised not to, but soon after continued to beat her. The applicant said after the first time she had a miscarriage and went to her parents about his treatment of her, and they sent her back to him, she went to [Ms B] for support rather than her family.

5. The Tribunal asked what happened between 2007 and 2016 when she next left.  She said she remained with her husband in this period but the ill treatment continued. She made no other complaints to police.  The Tribunal asked if she suffered any injuries requiring treatment, noting she had provided one hospital report regarding a miscarriage in 2006. She said there were many times she was injured, he would drag her and injure her legs. She said she did go to the hospital about 4 times but there may not be a record because she did not stay overnight. She can ask her sister to check if there are any other records. The Tribunal noted that it would consider any documentary evidence provided but raised the concerns it may have given the late provision of this evidence, and failure to mention it before.  The applicant discussed one occasion when she had fainted and could not breathe after a beating and her husband brought her to hospital.  She stayed overnight and then went home.  She cannot recall if she told them about the beating because she may not have realised that is why she fainted. When asked why she did not disclose it at the hospital and why she returned to him, the applicant said it was because of the children and she had no money to leave him.

6. When finally she tried to leave with the children in 2016, he reported to the police and she was arrested and ended up back with him. The Tribunal asked why she left in 2016.  She said it was because the beatings were so bad and she could no longer take it. Her friend [Ms B] told her she should take the children and go to [Country 1] and so she tried to do this. The Tribunal asked the applicant to clarify how long she stayed with [Ms B] on this occasion. She said her husband came and argued with her to return.  He did not do anything to her in front of them, because he never harmed her in front of people. He didn’t take the children with him this time, but when they tried to leave he reported her to the police and they caught her in Kambia.

7. The Tribunal asked the applicant when and how she obtained the police report, noting it was not provided earlier to the Department. She said she mentioned a statement being taken at the Department interview but she did not realise then she needed documentary evidence.  After her new representative asked her for this she asked her sister to obtain it and she sent it to her in November 2022. The Tribunal noted that some things mentioned in the police statement were not mentioned by her in her written statement or interview with the Department. This may contribute to concerns the Tribunal has about the credibility of her claims. Specifically, the Tribunal noted that she had never mentioned their disagreement about circumcising her daughter. The applicant responded that when she gave evidence in her application she was only talking about what happened to her and why she was afraid. But to the police she was explaining why she was taking them away. 

8. The applicant said she returned with her husband after this experience with the police because she had no where else to go. She stayed until September 2017 when she decided to leave him because she could no longer tolerate his behaviour. Around this time [Ms B] told her that she knew a way for the applicant to travel [to Australia] and she offered to help her. But she told her she could only get a visa for her and not with the children. The Tribunal asked how she could leave her children with her husband given her claims about his treatment of her. She said she had no choice.

9. The Tribunal asked the applicant where she went when she left in September 2017, noting that she did not come to Australia until March 2018.  She said she stayed with a friend named [name] who lived in [an area], which was a distance away from her. She said this person was an acquaintance she mentioned in her first statement that she first went to before [Ms B] started helping her. The Tribunal asked if this was the reference to the friend mentioned in paragraph 24 of the Statutory Declaration of 17 April 2018 and she said yes.  The Tribunal noted that this referred to a period in December 2007, 10 years earlier, and she indicated that the friend then did not want her to stay very long and in this context it may not believe she would now be open to her staying for several months.  The applicant said that she did allow her to stay. This friend is single and has no husband so it was easy to stay with her. She did not stay with [Ms B] because her husband knew where she was and would find her there. Her husband never knew that [Ms B] arranged her to travel to Australia.

10. The applicant confirmed that she last saw her children and husband in September 2017 when she left the house. The Tribunal queried how she could leave the children and whether anyone enquired about where she was, such as the school. She said that the school did not notice. They tend to believe whatever explanation is provided for why children don’t attend. It was only after the applicant came to Australia and obtained a phone that she contacted the school. She then realised that after a few months he stopped paying for their school.  She arranged to pay the school fees and from that time made contact with her daughters through the school.

11. The applicant confirmed that after she left the house in September 2017 she had no contact with her husband. He did not know where she was from September 2017 to March 2018. She said he tried to look for her at [Ms B]’s place but did not find her.  He knew she could not be with her sister [Ms E] because they had only one small room.

12. The Tribunal asked if he has harmed any of her family members since she has been in Australia. She referred to the harm the children experienced when he hurt her, including the impact of his abuse while she was pregnant with [Miss D] which meant the baby was born malnourished and in poor health.

13. The Tribunal questioned how he allowed the children to go with her mother.  She said after she heard about the rape allegation she told her mother and she came to take the children. Initially he denied that it happened because the daughter had not told him. Later they took her to hospital and it was confirmed that she was raped. The husband agreed for her to go after that.

14. Now he wants them back because he wants for them to be initiated. His mother is an elder of the Bondo Society which performs the rituals.  The applicant said that her sister has told her that he wants this.  He has been sending her voice and text messages containing threats.  The applicant said her mother, sister and the school are all against him taking the girls for this purpose and they have arranged for them to be accompanied to and from school and instructed the school not to allow the father to take them.  The Tribunal queried how this can be done given he is the father of the children.  She said that they have been able to so far.  She said because of what happened to her (she was circumcised at the age of [age]) she is against it for her children but her husband wants it. 

15. The Tribunal asked the applicant what she fears will happen to her if she returns to Sierra Leone now, given that four years have passed since she left and he has not harmed anyone in her family in that time.  She said she believes he will kill her. He has sent threats via her sister.  Her sister provided voice messages and text messages she has received from him.

16. The Tribunal put to her that given the measures her parents and sister have been able to put in place to keep the children safe from him why would they not keep her safe also.  She said they cannot keep her safe or save her from him. She tried to get away from him in the past and no one was able to protect her. She said in her country they see this as her role to stay with her husband. Marriage is considered so important there and she would be expected to return to him. While her family are prepared to protect the girls from his pressure for the circumcision now, they would not do the same for her.  In her society marriage is most important and they wanted her to stay with him. That is why she did not tell anyone that she was leaving, because they would not have supported her. 

17. The Tribunal put to the applicant that there are a number of inconsistencies in her evidence that may cause it to have doubts about the truthfulness of her account and invites her comment on these.  It discussed the failure to mention previously the issue of the husband’s demand to circumcise [Miss C] at the age of one year old, that is mentioned for the first time in the Statutory Declaration of November 2022.  In response the applicant said that when she made her first statement and had her interview with the delegate she was not represented and thought only to discuss the things that happened to her personally. It was only after she engaged this representative that she was told to mention other things, and that is why this came out now. The applicant confirmed that [Miss C] was not circumcised at one year of age.  She was raped in the last year or so, and her mother made a complaint about this. 

18. Secondly the Tribunal discussed with the applicant that she did not mention the rape of her daughter at all in her recent, second, Statutory Declaration (November 2022) and also in this declaration she states that she sent her children to her mother when she left the house in September 2017 and that [Ms B] helped her to come to Australia.  She never mentioned staying with her other friend in this period.  This evidence is inconsistent with what she told the Tribunal today. The applicant made no response to this.

19. The Tribunal put to the applicant under s424AA of the Act, the following particulars of information she gave to the delegate in her interview that are inconsistent with evidence she has given to the Tribunal, and detract from her credibility:  she told the delegate she resided for 3-4 months prior to coming to Australia with [Ms B] whereas she told the Tribunal she did not live with [Ms B] in this period but another friend named [name]; she told the delegate she did not seek any medical treatment when her husband beat her because he did not give her money to get medical treatment, whereas she has told the Tribunal she went to the hospital several times for treatment.  In response to the first matter the applicant sought additional time to respond, which the Tribunal gave. In response to the second, the applicant said she sought treatment but it may not be recorded in a report, or was given informally.  

20. The Tribunal confirmed with the applicant that she fears harm only from her husband on return. 

21. The applicant played two of the voice messages sent to her by her sister from her ex husband.  The interpreter interpreted the content. In summary the messages, directed to [Ms E], referred to her sister and that he has been taking care of her since before she had breasts on her chest; that despite what she wants for her children, what he wants will stand; it was good the police found her before he did; she is lucky but the day he sees her one person will be underground and one in jail; he will get her when she comes here. He has connections with all the political parties; he does not make empty threats; he will get his children circumcised because his mother is a sowei. The second message included threats to [Ms E] and her husband. The applicant said her sister and family are scared of him also now. They have reported the threats to the police.

22. The Tribunal asked the applicant why, if she is not safe from him in Freetown she cannot go to Makeni or elsewhere and be safe from him. In response she said he can find her anywhere in the country as he has previously.

23. When asked whether she can go to another country in the ECOWAS she said he too can travel anywhere and he will find her in any of these countries. He has travelled previously for his work. The applicant said she believes that he will find her through her communication with her daughter, and that is how he knows now she is in Australia.

24. The Tribunal asked the applicant why, given she was in Freetown from September 2017 to March 2018 and he did not find and harm her, he would do so now. She said that time the children were still with him, and he may have thought she would come back as she had all the times before.  Now she has not come back and he will not hesitate to kill her.

25. The Tribunal put to her that the law in Sierra Leone criminalises rape, including spousal rape  and domestic violence and it may find that she has access to state protection as that term is defined. She said the law does not protect women like her in Sierra Leone. There is no justice for women in her country. She has tried to go to the police in the past and they have done nothing.

26. When asked if there is anything further she wishes to say the applicant said she came to Australia for protection from what she went through in Sierra Leone. Her husband financially supported her family and for that reason he thought he could drag her as he did. It is not safe for her to go back to Sierra Leone. He has said he will find her and she knows he can and will.

27. The applicant’s representative requested two weeks to provide submissions and further evidence, including a response to the adverse information given at the interview.

28. On 16 December 2022 the Tribunal received an “additional tender bundle” containing the following documents:

    ·Transcript of phone messages between applicant’s sister, [Ms E], and applicant’s husband (in English, unaccredited translation)

    ·Letter from [a] School dated 4 September 2019 regarding applicant’s daughter, [Miss E] and father’s ongoing visits, requesting a meeting with the school.

    ·Letter dated 3 December 2018 from [a] School regarding daughter, [Miss C], advising father ceased paying fees since first term.

    ·Screenshots of money transfers by applicant to sister, [Ms E], in Sierra Leone from October 2020 to April 2022.

    ·Police Report recorded [September] 2021 relating to rape against [Miss C] by [name]. Complaint made by [name] (victim’s grandmother).

    ·Photos of applicant’s injuries sustained from abuse by former husband.

29. No submissions or further written response from the applicant to matters raised at the hearing were included. To date no other information or submissions have been provided to the Tribunal.  

    FINDINGS AND REASONS

    Nationality

30. On the basis of her Sierra Leone passport, and absence of any information before the Tribunal to suggest any issues relating to her identity, the Tribunal accepts the applicant is a national of Sierra Leone and considers Sierra Leone is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.

    Findings on applicant’s claims for protection

31. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (See MIMA v Rajalingam (1993) FCR 220). However, it is not required to accept uncritically any, or all, of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348). In assessing the applicant’s claims in this case, the Tribunal has taken into consideration the Migration and Refugee Division Guidelines on Gender and Guidelines on the Assessment of Credibility and given the nature of the claims made, the Tribunal has been mindful of the impact that trauma may have on memory, including whether it can reasonably explain inconsistencies, omissions and vagueness in the testimony.

32. In her application and before the Department, the applicant fears she will be harmed by her husband if she returns to Sierra Leone.  She claims she was forced into marriage with him at a young age and was subjected to sexual, physical verbal and psychological abuse by him throughout her marriage since 2006.  She claims she tried to leave him in the past but her parents and family and elders in the community sought to mediate between her and her husband and she was pressured to return to him. The domestic violence continued over the subsequent years and she was unable to seek, or obtain, protection from the police.  In 2016 she tried to escape from her husband and take her children to [Country 1], but her husband reported her to the police and the police removed her children from her and she was forced to return home. She finally left him in September 2017 with the assistance of a friend who arranged for her to come to Australia in 2018.

1. The delegate accepted that the applicant experienced domestic violence from her husband. The delegate also accepted that she experienced pressure from her family and community mediation to stay with her husband, and she had a subjective fear of harm in returning to Sierra Leone because of the harm experienced by her husband in the past. However, the delegate found that she had not seen her husband since September 2017 and had not been harmed by him in the period between September 2017 and leaving the country. After considering relevant country information about violence against women and domestic violence in Sierra Leone, the delegate concluded there was not a real chance the applicant would suffer persecution from her husband or from family pressure to stay living with her husband if she returns in the reasonably foreseeable future. The delegate was also not satisfied that there was a real chance she would suffer persecution as a separated woman in Sierra Leone, or for any other reason, including the circumstances of her travel and stay in Australia and failure to return at the end of the [trip].

2. Before the Tribunal, the applicant added new details in her claims and presented evidence not previously provided.  She claimed her husband wanted her daughter circumcised from when she was one year old and she opposed this. She claimed that she told the police this was the reason she ran away with the children in 2016 and provided a police report document about this incident.  She claimed that she recently learned that her daughter was raped while staying with her father by someone visiting his house. Since that time her mother came and took the children to live with her, where they remain to date. The applicant claims her husband is harassing her mother and sister because he wants to have his daughters circumcised and they are opposing this on her behalf.  She claims he has been sending messages to her sister about her and blames her for their opposition to the daughters being circumcised. The applicant reiterated her fear of harm from her husband if she returns.

3. The Tribunal has considered all of the evidence now before it and makes the following findings relating to the applicant’s material claims.

   Claims of forced marriage and experience of long-term domestic violence at the hands of her husband

4. The Tribunal accepts that the applicant was married off at a young age, against her wishes, to an older man, for a financial incentive offered to the family. Her core claims and account of her story about this have been detailed and substantially consistent throughout the application process.  However, the Tribunal has noted that her claims about her ages at that time ([age] when promised to [Mr A] in 2004, and [age] when married in February 2006) are not consistent with her stated date of birth and documentary evidence presented in the form of her passport document, of [1985], which would make her [age] years old in February 2006 rather than [age] years.

5. Notwithstanding the discrepancy in the claimed age, the Tribunal accepts her claim that she was pressured by her family into marriage against her wishes and married at a relatively young age of [age] years.  It finds her claims are supported by country information before the Tribunal about early and forced marriages.  For example, The Final Report of the Truth and Reconciliation Commission of Sierra Leone stated:

   “Early marriages pose a major challenge to the government of Sierra Leone as early marriages are permitted under customary law systems in Sierra Leone and involve the marriages of girls under the age of 18. There are four types of marriage in Sierra Leone: Christian marriage, Civil Marriage, Mohammedan Marriage and Customary law marriage. There is no minimum age of marriage applicable throughout Sierra Leone. Under Mohammedan and customary law even prepubescent girls below the age of 10 may be given in marriage.

   … The Commission has found that the practice of early marriage has contributed to the high levels of sexual abuse of girls and has led to society’s condoning of a practice that is detrimental to the development of young girls.” [1]

   [1] Final Report of the Truth and Reconciliation Commission of Sierra Leone published in 2004 - obtained from Sierra Leone TRC - Witness to Truth - Volume Three B (Chapter 4: Children and the Armed Conflict in Sierra Leone) Volume 3b, Chapter 4 , paragraphs 98-101

6. Forced marriage was identified and specifically prosecuted by the Special Court for Sierra Leone in the various trials held between 2007 to 2012 in recognition that the practice of ‘women being taken as wives’ was rife during the civil war and the extensive range of violence to which they were subjected in that context.[2] 

   [2] (Judgment) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-04-16-T,

7. Other human rights reports confirm this is a continuing issue.  For example, Amnesty International’s 2021 Sierra Leone report states:

   Early and forced marriage and female genital mutilation (FGM) were still prevalent. According to a Save the Children report published in March, Sierra Leone had the 18th highest child marriage rate in the world. The report also stated that girls often join secret societies upon puberty, such as the “Bondo Society”, where FGM is part of the initiation process.[3]

   [3] Everything you need to know about human rights in Sierra Leone - Amnesty International Amnesty International

8. The latest US Department of State Country Reports on Human Rights Practices: Sierra Leone says in respect of Child, Early, and Forced Marriage:

   The legal minimum age of marriage is 18: NGO Save the Children reported 13 percent of girls married by age 15, and 39 percent by age 18. Save the Children also reported that adolescent pregnancy was a driver of child marriage. Girls were more at risk of child marriage than boys, with a median age at first marriage of 18 for women compared to 25 for men. Save the Children reported that girls most vulnerable to early marriage included those from certain ethnic groups living in poor rural areas in the Eastern, Southern, and Northern Provinces, where child marriage rates were more than 40 percent, compared with 20 percent in the Western Province. According to an international news report, child marriage increased during the coronavirus pandemic. The government conducted limited prevention and mitigation efforts, including education and public-awareness campaigns. [4]

   [4] Sierra Leone - United States Department of State; see also, UNFPA-UNICEF GLOBAL PROGRAMME TO END CHILD MARRIAGE, 2020 Country Profiles, Sierra Leone, Child-marriage-country-profile-Sierra-Leone-2021.pdf (unicef.org); Sierra Leone - Girls Not Brides, United Nations Population Fund, Escaping child marriage in Sierra Leone (unfpa.org)

9. The Tribunal finds the applicant’s claims about her early and traditional marriage are consistent with information before the Tribunal regarding the social context in which she was living. Country information indicates factors that contribute to the high rates of child marriage include poverty, with some parents marrying their daughters off to receive dowry payments and reduce their economic burden, and the practice of female genital mutilation and cutting (FGM/C), (86% of women and girls in Sierra Leone have undergone FGM).[5] 

   [5] Sierra Leone - Girls Not Brides

10. The Tribunal also accepts her claims of the history of domestic violence at the hands of her husband, including sexual abuse and rape, physical beatings and psychological and verbal abuse. Her evidence about this has been detailed and consistent throughout the application, in her written and oral evidence to the delegate and Tribunal. Consistent with the delegate’s findings, the Tribunal accepts these claims as truthful and, on the available country information (see further below), plausible.   

    Claims of past attempts to escape abuse and leave

11. The Tribunal accepts that she tried unsuccessfully on multiple occasions in the past to leave her husband, but was pressured by her family, community and the police on each occasion to return.  Her recount of these incidents has been consistent and sufficiently detailed to the delegate and Tribunal in her oral testimony, and is substantially consistent with information in her written statements.

12. The Tribunal finds her claims about this are supported by independent information before the Tribunal regarding domestic violence in Sierra Leone (see further below).  The Tribunal finds credible and plausible that the applicant experienced pressure from her family, community elders and police to return to her husband when she tried to escape in the past. 

    New claims and evidence submitted to the Tribunal

13. Before the Tribunal, the applicant introduced new details that her husband wanted their daughter to be circumcised when she was around one year of age, and she opposed this because of her own experience of being circumcised at that age.  She provided a police report document dated [February] 2017 purportedly relating to the incident where she was arrested by police in her attempt to flee to [Country 1] with the children, which refers to these claims.  At hearing she told the Tribunal that she learned in recent years that her elder daughter was raped by a person visiting her father’s home, and since then has been living with her mother. A police report of this incident made on [date] September 2021 was submitted to the Tribunal following the hearing. The Tribunal noted there was no reference to this incident in her Statutory Declaration of 22 November 2022 provided to the Tribunal, and no further explanation for the omission has been offered.     

14. The Tribunal has some concerns that these new claims may have been introduced to try and strengthen and embellish her protection claims following the delegate’s refusal decision.  The Tribunal observes that until this point in the process she had not mentioned to the delegate or in her written statements the issue of female genital circumcision or existence of a police report.  The Tribunal also has some concerns about the reliability of the documents.  When discussed with the applicant at hearing she explained that she never mentioned the disagreement between her and her husband about circumcising her daughter in her earlier evidence because she only included what had happened to her. She said it was only when her new representative asked her about it, that she mentioned it and it was included in her new statement. She explained that she also only obtained the police report recently by asking her sister to get it, at the request of her new representative. 

15. The Tribunal notes the police report dated [February] 2017 has been submitted only recently and its content conveniently corroborates the new details made about the applicant and her husband’s disagreement over circumcising their daughter. The Tribunal also observes the document indicates the statement was taken from her at the Criminal Investigations Department Headquarters in Freetown, which is inconsistent with information previously given by her in written statements and oral evidence that she was arrested and held by police in Kambia, while she was on route to [Country 1] with the children. The Tribunal observes the subsequent police report dated [September] 2021 relating to the report of rape of the applicant’s daughter by a named person, given to the Tribunal after the hearing and purportedly given at [a] Police Station, is almost identical in form and structure to the earlier document and records the same phone number despite the two reports purportedly being made in police stations in different places some [number] kilometres apart.[6] These observations lead the Tribunal to have some doubts about whether these documents are genuine and concerns that the applicant has provided them to embellish her original story following the delegate’s refusal of her application.

    [6] [Deleted].

16. Notwithstanding this concern, the Tribunal accepts it is not implausible the applicant had a disagreement with her husband over the issue of circumcising her daughter is prepared to accept this claim for the purposes of the assessment, given its otherwise favourable credibility assessment in respect of her claims. 

17. Regarding the claim that her daughter was raped by a man while living with her father and has since then come into the care of the applicant’s mother, the Tribunal is also prepared to accept this occurred, despite its concern identified above regarding the police report document.  The claim is not inconsistent with country information about the high prevalence of rape and sexual violence against women and girls in Sierra Leone (see further below).  The Tribunal also observed the applicant’s distress and emotion while recounting this at the hearing. 

18. Ultimately, however, the Tribunal considers that neither of these new claims are materially relevant to the issue before the Tribunal of the applicant’s risk of from her husband upon return.

    Claims the applicant’s husband is sending threatening messages to the applicant’s sister about her

19. The Tribunal listened to a couple of the voice messages sent by the applicant’s sister to her during the hearing. It has considered the possibility that this evidence is not genuine but was contrived to support her claims.  However, having accepted the history of domestic violence perpetrated by her husband against her, and given the overall substantially favourable credibility assessment implied by its findings, for the purposes of the present assessment, the Tribunal is prepared to accept the claim that he made these threats. 

    Does the applicant have a well founded fear of persecution on return in the reasonably foreseeable future?  

20. The applicant fears harm from her husband of the nature that she has experienced in the past, being sexual assault and rape, physical beatings and mistreatment and psychological and verbal abuse and she fears he may kill her.  

21. The Tribunal accepts that the harm feared by the applicant constitutes serious harm within the meaning of that term in s 5J(5) of the Act. 

    Does the applicant fear being persecuted for one, or more, of the reasons specified in s5J(1)(a)?

22. On the material before it, the Tribunal accepts that the applicant fears harm on the basis of her gender as a woman, and her status as a wife. 

23. It accepts, on her evidence and testimony and country information before it regarding the status and treatment of women in Sierra Leone (referred to further below), that her fear of persecution arises on the basis of her membership of a particular social group, which can be characterised as ‘women in Sierra Leone’ or ‘women subjected to early or forced marriage in Sierra Leone’ or ‘wife’ in this context.  The Tribunal is satisfied that all of these come within the definition of a ‘particular social group’ under s5L of the Act, in that they are groups identifiable by a characteristic or attribute common to all members that is innate or distinguishes the group from society (their gender or status as wives) and the characteristic is not a fear of persecution. 

24. United Nations High Commissioner for Refugees Gender Guidelines provides the following definition of gender:

    Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another, while sex is a biological determination. Gender is not static or innate but acquires socially and culturally constructed meaning over time. [7]

    [7] High Commissioner for Human Rights, Guidelines on International Protection: Gender[7]Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2002) (‘UNHCR Gender Guidelines’)

25. The Tribunal accepts that gender is a normative concept defining what is expected of men and women and their relative positions and roles in society, against which actual experiences are measured and that gender violence is violence connected to these socially constructed roles.[8]  The Tribunal accepts in the present case, that the harm feared by the applicant, from her husband, arises for reasons of her gender and her status as a wife.  This is supported by the country information before the Tribunal regarding the status of women and girls in that society, and entrenchment of patriarchy and significance of marriage.

    [8] Rachel Slater, Gender Violence or Violence Against Women? The Treatment of Forced Marriage in the Special Court for Sierra Leone, Melbourne Journal of International Law, Vol 13, 2012 Microsoft Word - 04Slater (unimelb.edu.au)

26. It is also supported by the recognition of forced marriage in the context of the civil war in Sierra Leone, as a specific gender crime by the Special Court for Sierra Leone prosecuting war crimes,[9] where, inter alia, it was noted that the term ‘wife’ was used to signify a ‘rebel’s control over a woman’ or ‘ownership’.[10] 

    [9] See note 2 above

    [10] See Rachel Slater, Gender Violence or Violence Against Women? The Treatment of Forced Marriage in the Special Court for Sierra Leone, (2012) Melbourne Journal of International Law [Vol13]  p40 Microsoft Word - 04Slater (unimelb.edu.au)  The Tribunal finds Slater’s analysis of the SCSL jurisprudence where she suggests that labelling the crime of forced marriage in Sierra Leone as a gender crime sets a precedent for recognising the treatment of women within the domestic realm as internationally relevant violence, useful in recognising that the applicant’s feared persecution arises from the context of her forced marriage and her status as ‘wife’ and therefore can be characterised as gender based persecution.

27. The Tribunal is satisfied that the essential and significant reason for the feared harm or persecution is her membership of either or both of the above particular social groups. It accepts the feared harm is gender based and the conduct involves systematic and discriminatory conduct as required by s5J(4). 

    Is there a real chance the applicant will face this serious harm from her husband?

28. The delegate was not satisfied there was a real chance the applicant will suffer serious harm from her husband or family pressure to stay living with her husband if she returns. 

29. For the following reasons the Tribunal has reached a different conclusion. 

30. It is well established that the test for determining a well founded fear of persecution, as enunciated by the High Court in Chan v MIEA involves both a subjective and objective element.[11]  For a fear to be well-founded, there must be a factual or objective basis for that fear, that is  there must be a ‘real chance’ of being persecuted.  A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[12]

    [11] Chan v MIEA (1989) 169 CLR 379 at 396.

    [12] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Dawson J at 397-398, and Toohey at 407.

31. The Tribunal accepts the applicant has a genuine subjective fear of harm from her husband, on the basis of its findings that she has experienced long term domestic violence at the hands of her husband, and the consistency strength and conviction of her evidence and testimony before the delegate and Tribunal. 

32. In considering whether there is an objective basis for that fear, the Tribunal has considered information from a range of sources, including those referred to by the delegate in the decision record and other and more recent information, as set out below.

    Violence against women and domestic violence in Sierra Leone

33. A 2012 report by Lisa Denney and Aisha Fofana Ibrahim that considered violence against women (VAW) in Sierra Leone and how women seek redress provides the following relevant information,

    Violence in Sierra Leone is shaped by a number of factors, related to cultural attitudes, the history of conflict, the political environment and donor interventions. Recognising the influence of these factors on how violence manifests is central to a full understanding of VAW.

    History of conflict

    While VAW existed in Sierra Leone prior to the 11-year civil war, the conflict has played a specific role in shaping the way violence against women manifests and conditions attitudes and practices that contribute to its incidence. It is estimated that 17% of those displaced by the conflict experienced sexual assault of some form (Physicians for Human Rights, 2002) and that up to 250,000 women and girls experienced abuse (HRW, 2003). The war also led to massive displacement, of more than half of the population (UNFPA, 2007), meaning the social networks and bonds that in the past had afforded women some form of protection were shattered. As a result, women became disaffiliated and increasingly vulnerable to violence, and the limited services and infrastructure that existed prior to the conflict were destroyed.

    Under the Truth and Reconciliation Commission (TRC), established after the war as part of the transitional justice process, it was recommended that the government issue an unequivocal apology to women for the violence they suffered during the war and for the impunity with which that violence was met. ….The Special Court for Sierra Leone, set up by agreement between the UN and the government of Sierra Leone, also sought to address VAW, and secured landmark international prosecutions for forced marriage (ibid.)

    During the war, women increasingly took on new roles within the family and society, as men were increasingly absent from the home as a result of fighting, or were killed or displaced. The proliferation of non[1]governmental organisations (NGOs) post-war, and the propagation of discourses around women’s equality and empowerment and provision of microcredit loans for vulnerable women, has changed the status of many women and also had an influence on the nature of violence women now face. Since the end of the war, men have at times struggled to accept the new, more powerful positions women are occupying (IRC, 2012). In an effort to counteract this, men can react violently against women, who they see as overstepping their appropriate roles in society.

    Social and cultural norms

    Patriarchy is engrained in Sierra Leonean culture and is apparent at all levels of society – texturing family, community and political institutions, so the resulting power inequalities are continually reproduced. From a young age, women are routinely taught to be obedient to men, thus creating power imbalances that lay the foundations for VAW (Alie, 2008), and these are perpetuated by both men and women. This happens in a number of ways. Secret societies teach initiates that a good wife obeys her husband and looks after his needs, putting her interests secondary (Bledsoe, 1984; Fanthorpe, 2007). Families frequently teach girls to be obedient to authority and to be passive and quiet. These teachings lead to women being submissive to, and believing they have less rights than, men. This means often women accept poor treatment as normal (UNFPA, 2005). Power imbalances increase the vulnerability of women and girls to VAW, and it is this vulnerability that also prevents those who have experienced violence from leaving abusive relationships or seeking support or justice. Given that these cultural values are reinforced by both men and women, it is important that both sexes are engaged in efforts to address VAW, and that the targets of VAW programmes are not seen to be solely women.[13]

    [13] Overseas Development Institute (ODI), Violence against women in Sierra Leone: how women seek redress, December 2012, available at: 21 March 2023]

1. The USSD Report 2009 stated “A woman is frequently perceived to be the property of her husband, to be inherited on his death with his other property.”[14]  Other sources also refer to the notion, in Sierra Leone, that ‘a married woman belongs to the husband’.[15]

   [14] 2009 Human Rights Report: Sierra Leone, 11 March 2010 3b, Section 6

   [15] see also Chris Coulter, Bush Wives and Girl Soldiers: Women’s Lives through War and Peace in Sierra Leone (Cornell University Press, 2009) , 80.

2. The 2010 UK Home Office Country of Origin Report Sierra Leone[16] cited the following from the United Nations’ (UN) Joint Vision for Sierra Leone, published in May 2009:

   “In Sierra Leone, women and girls continue to face extensive discrimination in the political, economic, social, cultural and civic domains.” [4c] (p5) The report continued:

   “The unequal status and marginalization of women and girls in Sierra Leone has been exacerbated and solidified by the eleven year civil conflict, in which rape and sexual violence were used as weapons of war. The post-conflict period continues to marginalize the importance of including women as equal participants in social, political and economic life as a way of consolidating peace and advancing sustainable development for all.

   “Women, and especially rural women, have a low status in Sierra Leone’s highly patriarchal society. Women are poorly educated and suffer from high illiteracy rates of up to 80% among rural women. As a consequence, women lack access to economic opportunities and suffer from food insecurity. The few women engaged in politics cannot get party sponsorship or support and there is only 13.7% female parliamentary representation, far below the 50% target of the African Union. Women swell the ranks of the unemployed and unemployable, and particularly those who have been traumatised by GBV [gender based violence] and Female Genital Cutting (FGC) [Also known as Female Genital Mutilation (FGM)]. A staggering 94% of women in Sierra Leone aged 15-49 have undergone FGC, while 62% of women in the same group were married before the age of 18.” [4c] (p32)

   [16] United Kingdom: Home Office, Country of Origin Information Report - Sierra Leone, 23 November 2010, available at: 20 March 2023]

3. Polygamy is widely accepted in Sierra Leone, and men with wealth or power, such as chiefs or village elders, often have multiple wives:

   As a result, parents frequently agree to have their daughters marry older men with

   multiple wives, leaving their daughters with little power or autonomy in their marriages.[17]

   [17] Before Their Time: Challenges to Implementing the Prohibition Against Child Marriage in Sierra

4. Regarding the situation for separated or divorced women in Sierra Leone, a June 2017 report stated,

   Marriage is very important to a woman’s social status in the communities reviewed. In Themne culture, if a woman is unmarried when she dies, the right to bury her in the community must be paid for. Being a “good wife” is assumed locally to bring “blessings” from God to the wife and her children.

   When you die people will talk about it that you were a very obedient wife; that’s why your children are blessed. (Female participant, FGD with first wives in Foredugu)

   Married women have greater authority and respect in the community than single women. (In the case of divorce if a woman is still considered to be of child bearing age then she would be expected to find another husband.)

   Historically a customary marriage would have been an arranged married. According to the data collected, directly contracted marriages are now more common than arranged marriages, with estimates of only around 40% of marriages being arranged.

   Under customary law, marriage requires the consent of the intended wife’s family; therefore the role of the extended family has not entirely disappeared from marriages. Even if the marriage is not officially an arranged marriage, the family members are often involved in selecting or suggesting suitable partners, as the following extract from an interview with a husband shows. The second one came here as a lactating mother and her husband had just died at Rogbalan. She was (visiting) here and my mother was also here doing some small business, selling tobacco. It was then that my mother saw her and told me about her… It was then that I called the woman and asked for her consent. She said if I have agreed to marry her, she too is willing to marry to me. (In-depth interview with Solomon Kamara, Robump) The engagement process described by the interviewees (both men and women) commonly referred to a woman initially being noticed by a man, who then approached her or her family to ask for her hand in marriage, and if the woman consented the marriage was organised. [18]

   [18] UNDERSTANDING WOMEN’S LIVES IN POLYGAMOUS MARRIAGES: EXPLORING COMMUNITY PERSPECTIVES IN SIERRA LEONE’, Trocaire, June 2017, CISEDB50AD8544, p.13  

5. The same report indicates that attitudes towards the position of women in marriage in Sierra Leone remain conservative, and women may be subject to co-wife arrangements. Women living in polygamous marriages are typically reliant on men for financial support – a complicating factor for any woman contemplating leaving their husband:

   A wife’s resistance and reluctant acceptance of polygamous marriages must be understood within the wider context of the conjugal contract and specifically a wife’s subservient position of dependence. A woman is considered to need a man to provide for her. Therefore, when deciding whether to accept a co-wife the woman must weigh up whether she has sufficient family support and resources to be able to survive if she leaves the marriage. This does not mean that divorce does not occur, however, and a number of the women had previously been married and left their husbands and subsequently sought a new husband to materially provide for them.[19]

   [19] Ibid, p16

6. A 2017 report indicates that it appears to be increasingly common for women to be divorced or widowed in Africa owing to the large age gaps between men and women in marriage, and the lower rates of remarriage following divorce.[20] This report points to a growth in female-headed households as a consequence of these factors. The same report noted women who are divorced or widowed in Africa experience greater hardship and disadvantage due to customary practices when compared with men:

   In the face of divorce or widowhood, women must often struggle with serious economic hardship. A sudden drop in economic support is compounded by a host of legal, social, and economic disadvantages. Customary laws governing unions and their dissolution privilege men above women, whether in terms of child custody arrangements, property rights, or inheritance. Underdeveloped formal safety nets and insurance mechanisms fail to cushion the shock. Informal systems of support through the extended family or village only partially fill the gap. The impacts of marital dissolution on women’s well-being in Africa remain understudied.[21]

   [20] Divorce, Widowhood, and Women's Welfare in Africa’ World Bank Group, 30 November 2017, CXC90406620825

   [21] Ibid.

7. Regarding Sierra Leone’s legislative framework for the protection of women experiencing domestic or family violence, a report providing details about a project undertaken between 2008-2022 in which the key legislation was translated into the four main languages used in Sierra Leone provided the following information:

   Violence against women is a pervasive problem in Sierra Leone. Despite three landmark acts designed to expand women's rights, most women are unaware of their new ability to obtain a divorce, inherit property, and seek justice for domestic violence. The situation is further compounded by societal pressures to protect the family unit, at the cost of women's health and wellbeing, and the reliance on traditional justice mechanisms, which are often biased against women seeking redress for their grievances.
   Program Summary
   To increase awareness of women's legal rights, the 50/50 Group translated three gender acts - the Registration of Customary Marriage and Divorce Act, the Domestic Violence Act, and the Devolution of Property Act - into Sierra Leone's four main languages. Using the translations, the group held workshops and extensive discussions with tribal and religious leaders, all of whom are considered to be important strategic allies in the war against domestic violence. Following the workshops, the leaders were asked to record themselves reading the acts aloud. These recordings were then played on the radio and broadcast throughout Sierra Leone.
   Impact
   

   [22] Justice for Women in Sierra Leone | World Justice Project n.d, CXBB8A1DA26116 

   As a result of the 50/50 Group’s efforts, thousands of women, many of whom were illiterate, are now more aware of the rights afforded to them by three gender-specific acts. Radio proved to be an effective medium for disseminating simplified versions of these acts in Sierra Leone’s main languages. Tribal and religious leaders were sensitized to the plight of physically abused women, and were made aware of their key provisions under the law.[22]

8. The latest US Department of State Country Reports on Human Rights Practices: Sierra Leone[23] provides the following relevant information:

   Rape and Domestic Violence: The law criminalizes rape of both men and women, with a statutory minimum of 15 years’ imprisonment for offenders. Rape was common and viewed more as a societal norm than a criminal problem. The law specifically prohibits spousal rape. The law also criminalizes domestic violence, punishable by a substantial fine and two years’ imprisonment. Although awareness of rape and domestic violence increased over the years, indictments were rare, especially in rural areas, due to medical reporting requirements, high court fees, and an inefficient judicial system. Survivors of sexual offenses, often at the encouragement of their families, tended to compromise with offenders out of court. As a result a culture of impunity persisted, which perpetuated gender-based violence. The FSU within the SLP reported increased cases of rape and sexual assault, while arrests and convictions of perpetrators were negligible. Local NGO Rainbo Initiative reported a rise in sexual and gender-based violence cases across all five Rainbo Centers in Freetown, Makeni, Kono, Kenema, and Bo, with a total of 3,584 sexual and gender-based violence cases in 2020. Of the cases, 86 percent involved children younger than age 18.

   According to the FSU and the HRCSL, violent acts against women, especially wife beating and spousal rape, were common and often shrouded by a culture of silence. Survivors seldom reported sexual and gender-based violence due to their fear of social stigma and retaliation. The HRCSL and Rainbo Initiative observed an absence of medical personnel in most communities and lengthy court delays in processing cases. First Lady Fatima Bio actively promoted public awareness, calling on men to refrain from violence against women.

   [23] Sierra Leone - United States Department of State

9. Amnesty International’s 2021 Sierra Leone report states

   The Rainbo Initiative, a national organization fighting sexual violence, recorded 1,691 cases of sexual and gender-based violence, mostly against women, of which 1,522 were sexual assault cases and 169 were physical assaults, in the cities of Freetown, Bo, Makeni, Kenema and the district of Kono between January and June. In July, the minister of gender and children’s affairs reaffirmed the government’s commitment to end such violence by 2030.[24]

   [24] Everything you need to know about human rights in Sierra Leone - Amnesty International Amnesty International

10. Freedom in the World 2022 Report on Sierra Leone states the following with respect to issues for women and protection from domestic violence:

    Reports of rape and domestic violence rarely result in conviction, and the police unit responsible for investigating and prosecuting these crimes remains underfunded and understaffed. In 2019, Parliament passed the Sexual Offences Amendment Act, which allows life sentences for those convicted of raping a child.

    Women experience discrimination on personal status matters such as marriage and divorce. Customary law governs many of these issues, making it difficult for women to seek legal recourse.[25]       

    [25] Freedom House: “Freedom in the World 2022 - Sierra Leone”, Document #2071956 - ecoi.net, >

    The above cited country information indicates that violence against women is pervasive in Sierra Leone, and domestic violence, including spousal beating and rape, is common.  Despite the existence of laws prohibiting rape, including spousal rape, and domestic violence, prosecutions and convictions are negligible and rare and there is generally a culture of silence around this issue.  The applicant’s own past experience with the police in Sierra Leone attests to the lack of adequate protection available to her from state authorities from violence at the hands of her husband.  Information in the latest US Department of State Report and Freedom in the World Reports indicate that despite the existence of laws against domestic violence, arrests and convictions are rare, and police are underfunded and under resourced. The Tribunal is satisfied effective protection measures within the meaning of that term in s 5LA, is not available to the applicant.

11. The Tribunal has accepted the applicant is a survivor of long term domestic violence perpetrated by her husband, to whom she was subjected to marriage against her will from an early age.  The country information above indicates patriarchy is engrained in society in Sierra Leone, and women have a low status.  Women, specifically ‘wives,’ are considered to belong to their husbands and marriage is critical to a woman’s social status.

100.   On the weight of the country information cited above, the Tribunal accepts there is an objective basis to the applicant’s subjective fear of harm from her husband and pressure to return to him.  The Tribunal is satisfied there is a real chance, in the sense that it is not a remote or far fetched possibility, the applicant would face serious harm from her husband, or return or be pressured to return to her marriage where she would face serious harm in the form of sexual assault, rape, physical beatings, mistreatment and/or psychological and verbal abuse by him. 

Does the real chance of persecution relate to all areas of the country?

101.   The Tribunal accepts that the real chance of persecution relates to all areas of the country.  It accepted above that she was unable to successfully leave him in the past. It accepts that she faced pressure from her family, community and the police to return to him and on that basis, and in light of the country information regarding social norms and values, the Tribunal cannot be confident this will not occur again in future wherever she seeks to go.  It accepts there is no other part of Sierra Leone she can safely reside where he will not be able to find her or where she will not face pressure to return to him.

102.   For these reasons, the Tribunal is satisfied the applicant faces a well founded fear of persecution if she returns to Sierra Leone, now or in the reasonably foreseeable future.

103. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Right to enter and reside in a third country

104.   Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.

105.   Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[26]

[26]  Sections 36(4)–(5A)

106.   This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

107.   This is relevant to the current review because Sierra Leone is one of the partner states of the Economic Community of West African States (ECOWAS) established by the ECOWAS Treaty signed in 1975.  A revised treaty signed in 1993 further strengthened intra-regional economic and political integration and regional unity across national and linguistic borders.[27]

[27] East African Community website at East African Community (eac.int)

108.   ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. The 15 partner states are the Anglophone states of Sierra Leone, The Gambia, Ghana, Liberia and Nigeria; the Francophone states of Benin, Burkina Faso, Cote d’Ivoire, Guinea, Mali, Niger, Senegal and Togo; and the Lusophone states of Cabo Verde and Guinea Bissau. ECOWAS has a mixed religious population and comprises hundreds of ethnic and language groups. It has a combined estimate population of 391 million.[28] 

[28] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS)

3 December 2020 at 2.2–2.4

109.   DFAT reports that:

3.2 The ECOWAS Treaty governs regional migration in line with three pillars: the Right of
Entry, the Right of Residence, and the Right of Establishment. These pillars are
enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of
Residence and Establishment and its Supplementary Protocols, commonly referred to as
the Free Movement Protocol. All ECOWAS member states have ratified the Free
Movement Protocol, which represents a step towards the creation of a borderless region.
ECOWAS has subsequently adopted four additional supplementary protocols to the
original Free Movement Protocol.[29]

[29] Ibid, 3.2

110.   The ECOWAS Treaty confers the status of ECOWAS community citizenship on the citizens of ECOWAS member states, affording all those in possession of valid travel documents and international health certificates the right to enter any ECOWAS member state for up to 90 days without any prior or administrative or security-based immigration requirements. All ECOWAS member states have reportedly implemented the first phase of the ECOWAS framework in relation to the Right of Entry, although DFAT reports that immigration authorities can refuse entry in some circumstances (if, for example, the person is a prohibited immigrant, an undesirable person or without visible means of support).[30]

[30] Ibid at 3.14

111.   Article 4 of the 1979 Protocol Relating to Free Movement of Persons, Resident and Establishment provides that notwithstanding the provisions allowing ECOWAS citizens holding valid travel documents and an international health certificate free entry into member states, member states reserve the right to refuse admission to ECOWAS citizens who are inadmissible immigrants under the laws of the member state. Commentators report this provision provides broad scope for member states to undermine the purpose of the Protocol using restrictive domestic inadmissibility laws.

112.   A 2020 report commissioned by the International Federation of Red Cross and Red Crescent Societies (IFRC) and the United Nations High Commissioner for Refugees (UNHCR) observed that very few countries have issued the necessary documentation to facilitate a harmonised system necessary for full realization of the Protocol’s right to free entry such as the ECOWAS passport, and that biometric ID cards.[31]

[31]

113.   The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

114.   In this case, the Tribunal observes the applicant’s passport issued by the Republic of Sierra Leone expired in October 2022 and she has taken no steps to renew it. It notes from the above information that her entry to ECOWAS member states will also require an international health certificate and there is also no evidence before the Tribunal that she holds this.

115.   DFAT reports that it is generally quicker, cheaper and easier for ECOWAS community citizens to pay a bribe to enter other member states than obtain an ECOWAS certificate. While ECOWAS is currently reviewing documentation requirements and plans to remove the health certificate requirement, DFAT is not aware of the planned timeframe for implementation of the reforms or the likely uptake by member states.[32]

[32] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS)

3 December 2020

116.   There is no evidence before the Tribunal that the applicant has a prior history of travelling to  or living in, or any family support in, any ECOWAS country. Therefore the applicant would be entering ECOWAS countries as a woman travelling alone without any visible means of support. As noted above, DFAT reports that this is a circumstance in which immigration authorities can refuse entry and that discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region, often grounded in cultural traditions and formalised by law.[33] In such circumstances, the Tribunal accepts that the applicant is vulnerable to being refused admission to other ECOWAS countries.

[33] Ibid para 2.16

117.   Even if the applicant was able to enter an ECOWAS member state, the right to which s 36(3) refers is not just the right to enter, but also a right to reside. While a temporary right to reside will suffice to satisfy the legislative criteria, the Australian courts have held that a right to reside should confer privileges ordinarily associated with residency. One of the rights considered relevant in this assessment was the right to work.[34]

[34] SZQRM v MIAC [2013] FCCA 772 at [114]–[117] upheld in SZQRM v MIBP [2013] FCA 1297

118.   ECOWAS community residents have the right to reside in and become established in ECOWAS member states but must apply for and obtain a residence permit or work permit just like non-ECOWAS residents. The grant of such permits is not guaranteed and may be refused on public order, public security or public health grounds.[35]

[35] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS)

3 December 2020 at para. 3.3

119.   For all of the above reasons, the Tribunal is not satisfied that the applicant has a current right to enter and reside in other ECOWAS countries within the meaning of s 36(3).

120.   Therefore the applicant is not excluded from Australia’s protection obligations by the operation of s 36(3).

DECISION

121. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Meena Sripathy
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.

…

20 June 2007) (‘AFRC Trial’), (Judgment) (Special Court for Sierra Leone, Trial Chamber I, Case No SCSL-04-15-T, 2 March 2009) (‘RUF Trial’), (Judgment) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2004-16-A, 22 February 2008) (‘AFRC Appeal’) and (Judgment) (Special Court for Sierra Leone, Trial Chamber II, Case No SCSL-03-01-T, 18 May 2012) (‘Charles Taylor Trial’) discussed in Rachel Slater, Gender Violence or Violence Against Women? The Treatment of Forced Marriage in the Special Court for Sierra Leone, (2012) Melbourne Journal of International Law [Vol13]

Leone’ Allard K. Lowenstein International Human Rights Clinic Yale Law School, Plan United

Kingdom, Plan Sierra Leone, January 2013 at before_their_time_report.pdf (yale.edu) at page 13–15

'Access to essential services for people on the move in the ECOWAS Region: A report on legal frameworks and
barriers to freedom of movement, residence and establishment, and access to healthcare, education,
employment, housing and legal assistance', International Federation of Red Cross and Red Crescent Societies
(IFRC), United Nations High Commissioner for Refugees (UNHCR), January 2020, p.92, 20221117151054