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

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).
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.
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.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1816229 (Refugee)

Details

AGLC: 1816229 (Refugee) [2023] AATA 1566
Case: [2023] AATA 1566
Decision Date: 29 March 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a woman from Sierra Leone who feared harm from her husband if returned to her home country. The applicant alleged a history of severe domestic violence, including physical and sexual abuse, and stated that attempts to seek assistance from friends, family, and the police were unsuccessful. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria for a protection visa, considering both the refugee convention and complementary protection obligations.

The primary legal issues before the AAT were whether the applicant had a well-founded fear of persecution for a Convention reason, and alternatively, whether she would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia, thereby engaging Australia's complementary protection obligations. The Tribunal was also required to consider the availability of state protection in Sierra Leone and whether the applicant belonged to a particular social group, specifically women subjected to early or forced marriage in Sierra Leone.

The Tribunal considered the applicant's detailed account of domestic violence, including instances of beatings, rape, and the severe mistreatment of herself and her children. It noted the applicant's attempts to report the abuse to the police, which were met with inaction or dismissal, indicating a lack of effective state protection. The Tribunal also took into account country information regarding the situation of women in Sierra Leone, particularly those subjected to domestic violence and lacking recourse to state protection. Applying the principles of refugee law and complementary protection, the Tribunal found that the applicant had established a well-founded fear of persecution and that state protection was not available to her.

Consequently, the Tribunal set aside the decision under review and remitted the application to the AAT for a new decision to be made in accordance with the findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (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 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (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 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. 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.