1817963 (Refugee)

1817963 (Refugee) [2023] AATA 2267 (9 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1817963
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Rachel Da Costa
DATE:9 May 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 09 May 2023 at 4:50pm
CATCHWORDS
REFUGEE – Protection Visa – Sierra Leone – sexuality – lesbian –a victim of domestic violence in her relationship with her ex-husband – membership of particular social group– being a homosexual in Sierra Leone – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 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 10 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In her protection visa application form, the applicant provides the following information. She was born in [Town 1], Eastern province, Sierra Leone in [year]. She speaks, reads and writes English and Krio. She is a member of the Kissi ethnic group and a Pentecostal Christian. She works as [a] coach.
From May 2012 to February 2017, she was married. From February 2017 onwards, she was in a de facto relationship in Sierra Leone.
In Sierra Leone, she has her parents, [number] children, a sister, a brother and [number] step-siblings, plus other extended family members. She is contact with her family by telephone once a week. From [birth] to 200, she lived in [Town 1], Eastern province. From 2000 until she left Sierra Leone, she lived in Freetown.
From 2009 to 2018, she was [a] coach, training young people for [competitions]. From 2008, she also worked as a [Occupation 1], [working] in Freetown. She completed primary school, secondary school and college in Sierra Leone.
In May 2017, she visited [a country] for [Event 1]. She arrived in [Australia] on [date] March 2018, travelling on her Sierra Leone passport issued [in] 2016. She was the holder of a [temporary] visa.
In the Tribunal hearing, the applicant gave evidence that her younger sister is married and lives in Melbourne, Australia. She speaks to her parents and sister and brother several times a week by telephone. She speaks to her children every day if she can. She is still in contact with her ex-husband because of her children, who live with him.
Her speciality [was] [Sport 1]. She was [a Sport 1 expert] and then she coached [Sport 1] first at the club level and then at the national level. She came to Australia as a member of the Sierra Leone [team] and attended [Event 1] as [a] coach.
Evidence before the Department
The applicant’s claims for protection
In her protection visa application form, the applicant provides the following information:
·     She left Sierra Leone because of the separation from her husband and her life as a lesbian, which is prohibited in Sierra Leone.
·     Lesbians in Sierra Leone live in secrecy because of the fear or being raped or killed.
·     If she returns, she will experience violence, intimidation, mobbing, assault from relatives, friends, community and church members. She fears being raped and killed. Her family does not support her. They think she has brought shame to them and disobeyed her and their culture and traditions.
·     She has been rejected because of her sexuality. Ever since she declared that she is a lesbian, no one wants to associate themselves with her.
·     In Sierra Leone, on [date] October 2017, after people had come to know about her sexuality, she was beaten and raped by four men on her way [home]. When she went to the police, they dumped her matter because of her sexuality. The police did not take her situation seriously because there are no legal protections for gay and lesbian people in Sierra Leone.
·     She could not relocate because she was [a coach]. She cannot relocate because the entire country is against lesbian people.
·     The authorities will not protect her because there are no protections in Sierra Leone for gay and lesbian people against discrimination and violence.
In a written statement dated 25 May 2018, the applicant provides the following additional relevant information:
·     She has [number] children.
·     She publicly identified as a lesbian since she separated from her husband in February 2017. She has always been attracted to women, even in high school, but this was not something she could be open about because of her culture and religion.
·     She chose to hide her sexuality to be safe and to remain part of her family and her church community.
·     She could no longer hide her sexuality when she fell in love with another woman named [Ms A]. This happened six months before she separated from her husband.
·     Her first son was born in [year]. She became pregnant after being raped. Her parents still spoke to her but she felt they did not love her anymore.
·     She married her husband in 2012 because he was nice to her and she thought it would keep her and her son safe. It also made her parents happy. She did not love her husband in the same way her loved her.
·     The applicant became pregnant and her daughter was born in [year]. After this, her husband beat her regularly and said she made him uncomfortable.
·     In February 2017, the applicant and her husband separated. Six months earlier, the applicant had met a woman called [Ms A]. They met at [a] competition when [Ms A] was a spectator and asked the applicant for her details. They started meeting regularly and speaking on the phone every day.
·     The applicant fell in love with [Ms A]. She was very worried about her own safety and that of her children if she left her husband, but despite this she decided that she had to be with [Ms A]. It was her dream to be in a relationship with a woman.
·     When she left her husband, her children stayed behind with him. She did not tell him that she was in love with a woman. She just moved out during a fight.
·     The applicant moved in to live with [Ms A]. Everyone in the community knew [Ms A] lived alone and was a lesbian, so as soon as they saw the applicant living there they knew she was a lesbian too.
·     People told the applicant’s husband and he told the applicant’s parents. The applicant’s parents said she had brought shame to them and she was no longer part of their family. Her husband abandoned her and did not try to come to get her back.
·     The community also rejected her. People would say nasty things, yell at her, say that she and [Ms A] were prostitutes, hit her or try to trip her in town, not sell her food at the market and refuse to touch her hand when they gave her food or her change. Some men threatened to rape or kill her. She was scared of being hurt, but happy to be with [Ms A].
·     On [date] October 2017, the applicant was coming home [at] night. She passed four men and as she passed, one of them grabbed her and accused her of leaving her home and sleeping with women. One of them raped her while the others held her down. She was crying and trying to shout but they covered her mouth. They raped her because they knew she is a lesbian.
·     After the attack, she told [Ms A] what happened and they went to the police. The police already knew [Ms A] and told them to leave. The police said this had happened to the applicant because she has chosen to live a life without men and left her husband.
·     Some of her colleagues at work and at the [association] have isolated themselves from her.
·     It would be very difficult for her to find a job back in Sierra Leone if people know she is a lesbian.
·     After the attack, she continued to [work]. People continued to harass her. She was constantly in fear and afraid to leave her house.
·     She came to Australia for [Event 1]. [Ms A], her ex-husband and children are all still in Sierra Leone.
Interview with the delegate
On 28 May 2018, the applicant attended an interview with the Department to discuss her claims for protection. During the interview, she provided further information about her claims.
The delegate’s decision
On 15 June 2018, the delegate made her decision. She had concerns about some inconsistencies between the information in the applicant’s protection visa application form and information given at the interview. This included her residential history during the time she claimed to be living with [Ms A] and when they moved in together. The delegate found the applicant’s narrative in relation to her discovery of her sexuality to be vague and lacking in detail. The delegate also found the applicant’s evidence about the development of her relationship with [Ms A] to be implausible, including how quickly their relationship began, the applicant’s lack of knowledge about [Ms A]’s past relationships and the fact that she was only able to provide one photo of her and [Ms A] post-interview. The delegate was concerned by the applicant’s lack of detailed explanation on how she felt while married to her husband. The delegate was also concerned that if the applicant was genuinely a lesbian and that she had been discriminated against by workplace colleagues, that she would have been selected as a coach to come to [Event 1]. The delegate was not satisfied that the applicant was a lesbian. The delegate accepted that the applicant was sexually assaulted twice in Sierra Leone but not because of her sexuality. The delegate also accepted that she had been subject to domestic violence while with her husband. The delegate found that in all the circumstances, the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The application for review
On 19 June 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision to the Tribunal.
Additional written statement
On 2 September 2022, the applicant provided an additional written statement to the Tribunal. In that statement, she addresses some of the concerns of the delegate and provides the following additional relevant information:
·     In Australia, she has been living with a woman called [Ms B] who is a [Occupation 2] and who has been assisting her.
·     The applicant’s parents are devout Christians. The applicant continues to attend church every Sunday in Sydney.
·     In high school, she had some casual encounters with other girls but nothing serious. There was a girl she liked called [Ms C] who she found very attractive. Another girl called [Ms D], tried to find out if [Ms C] was interested in girls and shut the applicant out of the friendship group and getting to know [Ms C] better. One day, the applicant and [Ms D] got into a fight. They got into trouble and the school principal found out some of them were lesbians. The applicant was expelled from school and was beaten by her parents.
·     At college, the applicant had a few secret liaisons with women but nothing serious materialised and she tried to avoid dating and just focused on her studies. People around her were suspicious about her sexuality because she was not dating men or talking about getting married and having children.
·     She doesn’t know whether the first rape was because she was a lesbian. Her second rape was definitely for this reason.
·     She was not removed from her position as a sports coach for the [Event 1] because [specified reason] and there was nobody to replace her.
·     Until she spoke to RACS,[1] who helped her with her first written statement, and to the delegate in the interview, she had never spoken to anyone about her true sexuality other than [Ms A] and some girls in high school. She was scared and not able to express herself well in the interview because she was worried about being detained and also worried about other people finding out details she did not want them to know. She knows now that she can speak openly in Australia.
·     She felt instant chemistry with [Ms A]. They did not talk about past relationships because culturally, this is not a common thing people do in Sierra Leone when they are dating. This is to avoid giving the impression that a person is still attracted to their ex-partner, or comparing the current person to someone else.
·     Her relationship with [Ms A] was largely secret. They were cautious about taking photos together.
[1] Refugee Advice and Casework Service. See
The applicant also provided country information on the situation for LGBTI individuals in Sierra Leone comprising:
· A Report by the Heartland Alliance Global Initiative for Sexuality and Human Rights on Human Rights violations in Sierra Leone under the International Covenant on Civil and Political Rights which was presented to the 110^th Session of the Human Rights Committee in March 2014; and
· 2019 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA World) Report on State-Sponsored Homophobia which analyses legislation around the world and the human rights situation in each country that criminalises consensual same-sex sexual acts. The Report contains a section that discusses the situation in West African states, including Sierra Leone, and the difficulties faced by members of the LGBTI community in those countries.
The hearing
The applicant appeared before the Tribunal on 4 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages, although the applicant spoke in English and only required minimal assistance from the interpreter.
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 for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes there is no Department of Foreign Affairs and Trade Country Information Report on Sierra Leone, however there is a Thematic Report on the Economic Community of West African States (ECOWAS) from December 2020 to which the Tribunal has had regard.
Nationality
The applicant claims to be a citizen of Sierra Leone and provided to the Department a copy of her Sierra Leone passport issued [in] 2016. The delegate was satisfied that the applicant was using her own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sierra Leone. The Tribunal finds Sierra Leone is her receiving country for the purpose of assessing her claims for protection.
CONSIDERATION OF Claims and evidence and Findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant gave evidence to the Tribunal that RACS had helped her prepare her written statement from 2018 and she prepared the most recent one herself. Otherwise, she completed her protection visa application form herself and all the information it contains is true.
In the Tribunal hearing, the Tribunal discussed with the applicant her background, education, family, employment, sexuality and relationships, migration history, what happened in Sierra Leone and why she fears returning there. The Tribunal found the applicant to be an honest and credible witness. She gave her evidence in a straightforward, clear way and did not give the impression of trying to embellish her story. She spoke with insight and reflection on her feelings and experiences and her responses to concerns raised by the Tribunal made sense in the context of her story and her culture. Her oral evidence to the Tribunal was consistent with her evidence in her written claims and was presented in a manner which indicated to the Tribunal that she was speaking from personal experience rather than recounting a rehearsed or memorised set of claims.
The applicant’s sexuality
In the Tribunal hearing, the applicant gave evidence that she is a lesbian, which to her means being in a relationship with someone of the same sex. She realised in high school that she was a lesbian. Everything to her was based on female relationships and she didn’t have the same feelings towards men. She felt happy with women and the affection inside her was for women. It made her feel happy and it was her sexual emotion and it brings joy inside her.

She did not seek out relationships with other women in Sierra Leone because it is an abomination there. You can’t just meet someone. You have to suppress your feelings and not expose them.
She had her first strong attraction to a girl in high school called [Ms C] who was just a friend, but the applicant felt very emotionally attracted to her. They didn’t do anything sexual. Later, she had a problem in high school with her group of female friends. Sometimes they would talk about things, but the applicant was really interested in [Ms C] and couldn’t say what she really wanted to say or felt. Another girl caused a problem and talked badly about the applicant and they had a fight. She and this girl were expelled from school because of the fight and because people at the school had heard they were lesbians.
This is when her family first became involved. The school had to inform her parents what had happened and the applicant’s father flogged her because of what happened at school. Her parents asked her about being a lesbian but she strongly denied it. She felt she could not open up to them and tell them the truth because she was worried they would disown her. They are very religious. Her family believed her and they did not suspect the truth.
The applicant said that not being able to express her feelings growing up in Sierra Leone was like stress and hurting yourself because you can’t express what is inside you. You can’t say what is true and it feels as though there is no hope. She felt uncomfortable, left out, stressed and unhappy.
The applicant’s first intimate experience with a woman was with [Ms A]. The applicant met [Ms A] at a sports field. [Ms A] asked the applicant for her name and number and the applicant agreed. [Ms A] told the applicant how beautiful she was. They got to know each other initially through phone calls.
The applicant’s family found out that she was a lesbian when she left her husband. She left her husband and went to live with [Ms A]. The applicant’s husband called her parents and told them she was staying with a lady and that she is a lesbian. The applicant’s parents were very upset and said she should not call them anymore. They abandoned her and they could not understand. They would not talk to her when she was calling them and trying to tell them her feelings. She had brought shame and disgrace to them.
When the applicant came to Australia she called her parents and sent them messages. She asked them to forgive her and to accept her for who she is. They communicate now but it is not a strong, close relationship. She calls them to say hello and to see how they are, but it is not deeper than that. They still ask her if she is still a lesbian and they don’t accept it.
The applicant’s ex-husband did not come to look for her after she left him. He told her to ‘go and do whatever’. The applicant said her children were so upset when she left. She left them too young. She was able to still see them when her husband was not around.
When the applicant moved in with [Ms A] it was so hard leaving her children. It was her desire to be with a lady and [Ms A] was trying to help her. The applicant managed to stay with [Ms A] because that is her nature and desire.
The applicant and [Ms A] were not public about their relationship but people knew. The situation with other people was really bad once the applicant left her husband. People knew she had gone to live with a woman. She said that people say bad things and don’t accept you.
The applicant said that she suffered physical harm in Sierra Leone. She was raped after she moved in with [Ms A]. The Tribunal did not ask the applicant to speak in any detail about this because she had given details in her written statement and she clearly found talking about the experience very upsetting. The Tribunal asked her how the police behaved when she reported the rape. The applicant said that when she went to the police station, they wanted to arrest her for being a lesbian. They said they would arrest her and rape her until she died. They did not help at all.
She never ‘came out’ to people in Sierra Leone about her sexuality because it is not possible. If she had done that, she would have been bashed, people would have said bad things and it is an abomination. If people tell the police you are a lesbian then the police will arrest you and maybe kill you.
The Tribunal asked the applicant why she had married a man if she knew she was a lesbian. The applicant explained that when she had her first son and was pregnant, because of what she had been through (namely, a rape, which resulted in her pregnancy) her parents pushed her away and said she should marry because of the dishonour. She got married to try to make her parents happy and for them to accept her. That is why she agreed to do it.
The Tribunal asked the applicant about expressing her sexuality in Australia. The applicant explained that because of her culture and her church, she has only opened up to one lady in church whom she is close to. She also told the lady called [Ms B] whom she lived with for about three years until recently. The applicant was very stressed by what she had been through in Sierra Leone and with her family. [Ms B] told the applicant it is okay in Australia and she has counselled and helped her a lot. [Ms B] is a [Occupation 2]. The applicant now lives with another Sierra Leonean woman whom she met at church. The applicant is still in a relationship with [Ms A].
The lady at church (not [Ms B]) asked the applicant whether she wanted to find a relationship in Australia but the applicant told her she already has a relationship. That lady is very religious and encouraged the applicant to be with men. The applicant just wants to be with [Ms A].
The applicant said that she is not more open about her sexuality because of her culture, her church community and she still has a fear inside that something else bad will happen. She has one lesbian friend in Sydney who she met at work. They are just friends. The applicant has not involved herself in the gay and lesbian community in Sydney. She is scared because she is not sure if they will accept her. Where she comes from, being a lesbian is an abomination. For her to go and meet them and introduce herself is hard because she doesn’t know how they would feel. She would like to involve herself but she doesn’t know how to go about it.
The Tribunal asked the applicant whether she had any evidence of her ongoing relationship with [Ms A]. The applicant said it was difficult because they just talk on the phone and don’t send text messages. The Tribunal asked the applicant if it could call [Ms A] and speak to her and asked what she would say. The applicant said that was fine and [Ms A] would tell the truth. She would say it is true, and they are in a relationship and they are lesbians. The applicant was also happy for the Tribunal to call [Ms B] and speak to her. She said [Ms B] would also confirm the applicant is a lesbian. In light of the applicant’s complete lack of hesitation about the Tribunal calling [Ms B] and [Ms A] on the spot without warning and her confidence about what they would say to the Tribunal, the Tribunal decided this was not necessary to corroborate the applicant’s claims about her sexuality.
The Tribunal asked the applicant how she would behave as a lesbian woman if she had to return to Sierra Leone. The applicant responded that they would kill her. The Tribunal asked her whether she would be open about her sexuality. She said she would not be able to because people in Sierra Leone are against it and she is afraid.
Findings
Having considered all the applicant’s claims and evidence, the Tribunal finds as follows. The Tribunal accepts the applicant is a lesbian. The Tribunal accepts that the applicant was aware of her sexuality from the time she was a teenager. The Tribunal accepts that the applicant felt attracted to women from this time and not to men, but that she did not have an intimate experience with a woman until she began her relationship with [Ms A] in around late 2016. The Tribunal accepts that the applicant feared rejection and harm, particularly by her family, if she told them the truth about her sexuality.
The Tribunal accepts that the applicant was raped in 2009 and this resulted in her becoming pregnant and giving birth to her son. The Tribunal accepts that the applicant married her husband (now ex-husband) for security and to try to please her parents and not because she was a heterosexual woman who wanted to get married and have children. The Tribunal accepts the applicant was a victim of domestic violence in her relationship with her ex- husband. The Tribunal accepts that they have a daughter together. The Tribunal accepts that the applicant was a [Occupation 1] and [coach] at a high level in Sierra Leone before she came to Australia.
The Tribunal accepts that the applicant’s ex-husband and her parents found out about her being a lesbian when she left her ex-husband and moved in with [Ms A] in early 2017. The Tribunal accepts that the applicant first met [Ms A] at [a] competition and that [Ms A] approached her for her details. The Tribunal accepts that the applicant’s parents are devout Christians and do not accept the applicant’s sexuality and that when they found out about her relationship with [Ms A], they rejected her and thought the applicant had brought shame and disgrace to their family. The Tribunal accepts that the applicant’s parents tolerate her now but their relationship is not close.
The Tribunal accepts that after the applicant moved in with [Ms A], people in her community knew or assumed she was a lesbian. The Tribunal finds that she and [Ms A] were discreet about their relationship in public. The Tribunal accepts that the applicant was harassed and abused in public about being a lesbian by people in her community. The Tribunal accepts that some of her work colleagues isolated themselves from her. The Tribunal accepts that on [date] October 2017, the applicant was raped by a group of men while on her way home [at] night and that the reason for this rape was because the men knew she was a lesbian. The Tribunal accepts that the applicant and [Ms A] tried to report the rape to the police but that the police refused to help the applicant and that they threatened and abused her.
The Tribunal accepts that the applicant is not open about her sexuality in Australia and that she has only confided in three people. The Tribunal finds that this is for cultural reasons, as well as her fear of rejection by people in her community in Australia, particularly at her church, and also because she still holds some fear of being harmed. The Tribunal accepts that she would like to become more involved in the gay and lesbian community in Sydney but she is worried about not being accepted and not sure how to involve herself.
The Tribunal accepts that the applicant is still in a relationship with [Ms A] even though they have not seen each other for around five years and that they speak regularly on the telephone. The Tribunal accepts that the applicant would not be open about her sexuality if she returned to Sierra Leone because she is afraid of being beaten or killed.
Does the applicant meet the refugee criterion?
The Tribunal has considered whether being a homosexual in Sierra Leone makes the applicant a member of a particular social group.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal finds that being a homosexual in Sierra Leone is a particular social group as defined by s 5L as the characteristic of being homosexual is shared by each member of the group and the applicant shares this characteristic. Further, the characteristic is an innate or immutable characteristic and is so fundamental to the member’s identity the member should not be forced to renounce it, and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic is not a fear of persecution.
The Tribunal has considered whether the applicant would face a real chance of serious harm if she returned to Sierra Leone in the foreseeable future due to being homosexual.
The Tribunal has considered country information relating to the situation for homosexuals in Sierra Leone, including the country information provided by the applicant.
The 2022 US Department of State Country Report on Human Rights Practices: Sierra Leone[2] explains that same-sex sexual activity between men is criminalised in Sierra Leone. This law is not actively enforced. A similar law does not exist in relation to women. LGBTI activists report violence and blackmail against LGBTI persons and the information does not suggest that the government authorities take action to investigate or prevent this. Laws do not provide protection from hate crimes against LGBTI persons. The law does not provide protection from discrimination based on gender identity or sexual orientation and the government made limited efforts to address discrimination and bias against LGBTI persons. LGBTI support organisations maintain a low profile to protect their safety and identity. There are some reports of the police improving their understanding towards LGBTI persons.
[2] (accessed 8 May 2023)
LGBTQI+ advocates reported the community faced challenges ranging from stigma and discrimination to denial of public services such as health care and justice. Advocates reported LGBTI persons did not face discrimination in schools but pupil-on-pupil discrimination was reportedly prevalent. An organisation called Dignity Association reported it was difficult for LGBTI individuals to receive health services and many people chose not to seek medical testing or treatment due to the risk their right to confidentiality would be ignored and their sexual orientation would be revealed. Obtaining secure housing was also a problem for LGBTI persons and families frequently shunned and expelled LGBTI children from their homes, leading some to turn to commercial sex to survive. Adults risked having their leases terminated if their LGBTI status became public. Women in the LGBTQI+ community reported social discrimination from male LGBTI persons and the general population. According to activists, rape was common and “corrective” rape is one of the prevalent abuses suffered by LGBTI women.
This information is consistent with the Report by the Heartland Alliance Global Initiative for Sexuality and Human Rights on Human Rights violations in Sierra Leone under the International Covenant on Civil and Political Rights which was presented to the 110^th Session of the Human Rights Committee in March 2014.[3]
[3] Sierra-Leone-Shadow-Report.pdf (accessed 8 May 2023)
According to the Human Dignity Trust:
same-sex sexual activity in Sierra Leone is prohibited under the Offences Against the Person Act 1861, which criminalises acts of ‘buggery’. This provision carries a maximum penalty of life imprisonment. Only men are criminalised under this law. The law was inherited from the British during the colonial period, in which the English criminal law was imposed upon Sierra Leone. Although Sierra Leone gained independence in 1961, all provisions of the Offences Against the Person Act remain in force. As such, Sierra Leone continues to criminalise same-sex sexual activity today.[4]
[4] (accessed 8 May 2023). See also International Lesbian, Gay, Bisexual, Trans and Intersex Association Report on State-Sponsored Homophobia 2019, (accessed 8 May 2023)
Other sources indicate that Sierra Leone’s socially conservative society has created an environment where religious establishments oppose the LGBTI community and consider it to be a taboo subject.[5] There have been consistent reports of discrimination and violence being committed against LGBT people in recent years, including assault, threats, harassment, blackmail, familial rejection, and the denial of basic rights and services.[6] The police do little to protect LGBTI individuals who have suffered violence due to bias[7] and the police have been accused of excessive use of force and corruption within their ranks.[8]
[5] (accessed 8 May 2023); (accessed 8 May 2023)
[6] ; (accessed 8 May 2023)
[7] Sierra-Leone-Shadow-Report.pdf (accessed 8 May 2023); (accessed 8 May 2023); Sierra Leone Country Security Report, Overseas Security Advisory Council (accessed 8 May 2023)
[8] Ibid.
The Tribunal considers that the country information above indicates that there is strong cultural opposition to LGBTI individuals in Sierra Leone underpinned by long-standing laws criminalising same-sex sexual activity between men and an absence of laws to protect LGBTI individuals from discrimination and hate crimes. LGBTI people face a ‘very hostile socio-political climate.’[9] Discrimination and harassment in many aspects of life is common and visible and the risk of violence, including ‘corrective rape’ of lesbians is prevalent.
[9] (accessed 8 May 2023)
As set out above, the Tribunal has accepted the applicant’s evidence about her sexuality, the negative attitude of her family, colleagues and the community in general towards her sexuality once it was known, the harassment and violence she suffered including ‘corrective rape’ after commencing her relationship with [Ms A] and the attitude of the police when she reported the rape.
Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of her membership of a particular social group, namely, homosexuals in Sierra Leone, and there is a real chance that she would be persecuted for this reason if she returned to Sierra Leone in the foreseeable future. For the reasons explained above, based on the country information and the applicant’s profile, the Tribunal finds that the real chance of persecution relates to all areas of Sierra Leone.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of her membership of a particular social group, it involves serious harm to her and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant.
In light of the applicant’s evidence and the country information referred to above, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Sierra Leonean State and that the Sierra Leonean State is not willing and able to offer such protection. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant in Sierra Leone.

The Tribunal accepts the applicant’s evidence that if she returned to Sierra Leone she would feel compelled to behave in a discreet manner to hide her sexuality out of a fear of serious harm or death. The Tribunal is satisfied that the applicant cannot take reasonable steps to modify her behaviour in future so as to avoid a real chance of persecution in Sierra Leone because it would require her to alter her sexual orientation or gender identity or conceal her true sexual orientation and gender identity. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her membership of the particular social group, namely homosexuals in Sierra Leone.
The Tribunal finds that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, she is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Right to enter and reside in a third country
Even when an applicant is found to meet the refugee criterion in s 36(2)(a), Australia is not taken to have protection obligations in respect of a person who has not taken all possible steps to avail themselves of a right to enter and reside in another country apart from Australia: s 36(3).
This is relevant to the applicant because Sierra Leone is one of the member states of the Economic Community of West African States (ECOWAS). According to the current DFAT Thematic Report from 2020:
The Economic Community of West African States (ECOWAS) is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted.[10]
[10] DFAT Thematic Report - Economic Community of West African States (ECOWAS) 3 December 2020.
Information sources which the Tribunal has consulted indicate that the ECOWAS Protocols have made legal progress in establishing freedom of movement and residency between ECOWAS member states, including Sierra Leone. However, it appears to the Tribunal that implementation challenges persist, including full freedom of movement and rights to reside being limited by the independent laws and restrictions of individual states, as well as potential administrative harassment, and extortion on the part of member states. In reality, it appears that there are a number of limitations within the individual member states that have affected this right to reside. Given these shortcomings regarding the implementation of the ECOWAS Protocols, the Tribunal is not satisfied the applicant does, at the time of this decision, have a meaningful right to enter and reside in any other ECOWAS member state: s 36(3). There is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside in any other country.
Even if the Tribunal is wrong about this and the applicant does have a meaningful right to enter and reside in an ECOWAS member state, country information indicates that LGBTI issues are taboo across the ECOWAS region, both officially and societally. The DFAT Thematic Report states at 2.17 that:
The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, Sierra Leone and Togo all criminalise consensual same-sex sexual acts between adults. In northern Nigeria, consensual same-sex sexual acts are punishable under sharia (Islamic law) with the death penalty. Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali and Niger do not criminalise consensual same-sex sexual acts between adults, but do not offer any specific protections. Cabo Verde is the only ECOWAS member state to offer employment protection to LGBTI individuals. LGBTI activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTI in Benin, Ghana and Mali, and prosecutions of LGBTI individuals in Burkina Faso and Cote d’Ivoire seemingly motivated by their sexual orientation, despite the fact that neither country criminalises consensual same-sex sexual acts between adults.
Other country information supports this and indicates that the situation is negative for LGBTI individuals in West Africa and there is no political will in these countries to support and respect the rights of LGBTI individuals who face the risk of violence and social prejudice.[11]
[11] See (accessed 8 May 2023)
Section 36(4)(a) states that subsection (3) does not apply to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In light of the Tribunal’s finding above that the applicant is a lesbian, and based on the country information referred to above, the Tribunal considers that as a lesbian with her profile, the applicant has a well-founded fear of persecution for reason of her membership of a particular social group (namely, homosexuals), in the other ECOWAS member states. Accordingly, the Tribunal finds that section 36(3) does not apply in respect of the other ECOWAS member states and the applicant is not excluded from the operation of Australia’s protection obligations on this basis.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Rachel Da Costa
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.
…

[2023] AATA 2267

9 May 2023

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