1819304 (Refugee)

[2024] AATA 1971

1819304 (Refugee) [2024] AATA 1971 (7 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Ashley Ognenovski (Legal Practitioner)

CASE NUMBER:  1819304

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Senior Member G.A.F. Connolly

DATE:07 May 2024

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 07 May 2024 at 11:48am

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – membership of particular social group – homosexual man – expelled from school and in hiding before coming to Australia – limited evidence in application – difficulties with language, interpreter and representative, trauma and stress, and  inherent difficulty in establishing claim – identity and activities in Australia – country information – laws, religious beliefs and societal attitudes – discrimination, ostracism, blackmail, violence and life imprisonment – treaty right to enter neighbouring countries limited by similar conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(b), 5J(1), 36(2)(a), (3), (4)(a), 65, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1)

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
Drake v MIEA (1979) 24 ALR 577
MIEA v Guo (1997) 191 CLR 559
Nagalingam (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sivalingam v MIMA [1998] FCA 1167
1824416 (Refugee) [2023] AATA 4132

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 dependants.

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 (Minister’s Delegate) on 29 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).

2. This case has admittedly taken an awfully long time to resolve because of the shortage of Krio language speakers in Sydney who can aid with interpretation and thus the prompt resolution of this case.

3. On 18 January 2018, the applicant was granted a temporary activity visa to attend the Commonwealth Games being held at the Gold Coast (4 to 15 April 2018).[1]

   [1] Protection Visa Decision Record of 29 June 2018 at page 1.

4. [In] March 2018, the applicant arrived in Australia.[2]

   [2] Protection Visa Decision Record of 29 June 2018 at page 1.

5. On 27 April 2018, the applicant applied for a protection visa.[3]

   [3] Protection Visa Decision Record of 29 June 2018 at page 1.

6. On 29 June 2018, the applicant was refused the issue of a protection visa by the Minister’s Delegate.  The Minister’s Delegate did not accept:

   ¾that the applicant is a homosexual;

   ¾that the applicant was expelled from his school when younger because of homosexual acts committed by the applicant with another male student; and

   ¾that the applicant was in hiding with a male friend prior to coming to Australia.

7. On 19 March 2024, the applicant appeared before the Tribunal to make his case, provide evidence, and make submissions.  The applicant was represented by Ms Ognenovski, who assisted the Tribunal and who seems to have prepared this applicant’s case to a good standard.

8. Cutting through the thickets that grow around these types of cases, it seems to me that the crux of this case was and is whether or not the applicant is a homosexual, now, and therefore a member of a particular social group that faces a real chance of suffering persecution if he were to return to Sierra Leone such as would oblige the applicant to be protected by Australia: s 36(2)(a) of the Migration Act. 

9. For the reasons that I set out in this decision, I have determined that the applicant is a homosexual who, on the facts of his case, and owing to the probability of his suffering persecution/harms in Sierra Leone because of his homosexuality, is a person to whom Australia owes protection obligations.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of Migration 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.

2. 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.

3. 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).

4. 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 (such as, relevantly here, homosexuals) 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.

5. 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.

6. Any application to this Tribunal, even where an applicant has not attended their hearing,  is a proceeding de novo and not an appeal, strictly speaking, at least not an appeal to any court. The case before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.

7. In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act).  The Federal Court said this of the Tribunal’s task[4]:

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.

   It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits. In view of what was said in Drake, set out above, it is important to repeat that the Tribunal here takes on the role of determining what was the correct or preferable decision on the whole of the material that has been filed with or presented to this Tribunal in this case.

   [4] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of Migration 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 PROCEEDINGS BEFORE THIS TRIBUNAL

1. It is important at the outset of these reasons to explain the nature of this Tribunal and its task in cases such as this one.

2. The proceedings before the Tribunal are inquisitorial, as befits merits review, and the Tribunal is not in the position of a contradictor. It is always for an applicant to make their case. It is for the applicant to advance whatever evidence or argument they wish to advance in support of that case. In these particular cases, an applicant’s contention will be that Australia owes them protection obligations. This Tribunal must then decide whether that claim has been made out.[5]

   [5] See Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ

3. To emphasise the point, per ss. 5AAA and 423A of the Migration Act, an applicant is required to make their own case in as much detail as possible – and to do so at their first reasonable opportunity.  Otherwise, adverse inferences may be drawn against cases made later and, especially, after significant delay.  I will now discuss these two sections in more detail.

   ¾section 5AAA of the Migration Act makes clear that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, and critically, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. In this respect, two obligations are particularly relevant: the ongoing requirement under s.104 of the Migration Act for an applicant to ensure their relevant details are correct and up to date, and, also, for them to amend any incorrect information at the first reasonable opportunity.

   ¾section 423A of the Migration Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence where the applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such a case, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not first raised or the evidence was not first presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the applicant’s claim or evidence. Applicants, therefore, who do not present all of their claims and evidence to the primary decision-maker must have a reasonable explanation for their not doing so.

   While the Tribunal is conducting a ‘de novo’ review, it cannot close its eyes to delay and to ‘recent invention’ of what is purported to be ‘old evidence.’  These are less matters of strict rules of evidence than the application of common sense.  This said, there may be good reasons for a failure by an applicant to immediately recall all aspects of an applicant’s experience that may, in turn, soundly ground a protection claim.  It is crucial to always keep an open mind and to be fair and just in all the circumstances of an applicant’s claim.  Yet, ultimately, it is the applicant’s case to make.

4. In this case, I have considered all of the material afresh and made my own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.  While as noted above, the Tribunal is inquisitorial and can seek out the evidence it requires in order to reach a determination, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[6] It is, rather, the responsibility of each applicant to specify all the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim: s 5AAA of the Migration Act.

   [6] see ABT16 v Minister for Home Affairs [2019] FCA 836 (05 June 2019) at [28] per Perram J.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Noting the above, then, the issue in this case was whether the applicant had made out his claim that Australia owes him protection obligations as a homosexual and thus a member of a particular social group with a well-founded fear of persecution.

2. To reiterate what I have said in other cases: where an applicant makes a claim of a fear of persecution and/or harms, the mere fact that a person claims this fear for a particular reason does not establish either the genuineness of the asserted fear, or that the fear is well-founded, or that it is for the reason claimed. A fear of persecution or harm is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth.

3. Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of an individual’s case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts.

4. A decision-maker is not required to make the applicant's case for them. Nor is this Tribunal required to accept uncritically any and all of the claims and allegations made by an applicant.[7] As a general rule, this Tribunal grants the benefit of the doubt to applicants who are generally credible even if unable to substantiate all of their claims.  At the same time, an applicant who is not credible will, almost always, have their case rejected.

   [7] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.

   The evidence of the applicant’s homosexuality

5. This was never a conceptually difficult case albeit obvious credit issues arise. The only real factual issues were whether the applicant was a homosexual and whether the applicant’s homosexuality posed real risks of persecution and/or significant harm to him.

6. The evidence before the Tribunal that the applicant was a homosexual was and is overwhelming – and this was evidence independent of the applicant’s own testimony.  Admittedly, the applicant did not perform well before the Minister’s Delegate in 2018 and his evidence and arguments there were poor.  This does not mean, however, that his case was without merit, as this case before the Tribunal has shown, along with the evidence filed in support of the applicant’s claim.  In this respect, particularly, the applicant’s representative, Ms Ognenovski, has assisted the Tribunal.

7. In respect of the weak performance of this applicant before the Minister’s Delegate, it is important for decision-makers to not leap to conclusions but instead be aware that prior traumas can cause damage to memory recall, too, and this should be recalled before rushing to reach conclusions about the credibility of an applicant.  As the Full Court of the Federal Court held in Sivalingam[8]: “We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the knowledge and experience of members of the RRT may be expected to assure that they are sensitive to those special considerations”.

   [8] Sivalingam [1998[ FCA 1167 (17 September 1998) per O’Connor, Branson, and Marshall JJ.

8. In Sivalingam[9], reliance was placed, correctly in my view, on a passage written by Professor James Hathaway[10] in a Canadian context, which is cited in that judgment, and includes these words here, which, while not controlling on any decision-maker’s exercise of their judgment, nonetheless stand as useful guideposts on questions of honesty and credit:

   "First, the decision-maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state. The past practice of the [Immigration Appeal] Board of assessing credibility on the basis of the timeliness of the claim to refugee status, compliance with immigration laws, or the consistency of statements made on arrival with the testimony given at the hearing is thus highly suspect, and should be constrained in the contextually sensitive manner discussed previously in Chapter 2.

   Second, it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution. Because an understandable anxiety affects most claimants compelled to recount painful facts in a formal and foreign environment, only significant concerns about the plausibility of allegations of direct relevance to the claim should be considered sufficient to counter the presumption that the sworn testimony of the applicant is to be accepted as true.

   [9] Sivalingam [1998] FCA 1167 (17 September 1998) per O’Connor, Branson, and Marshall JJ.

   [10] Cited as Professor Hathaway, The Law of Refugee Status (1991, Butterworths) at pp 84-86.

9. I mention all of this as it may be the case that, in some cases, an  applicant cannot provide evidence, independence of himself, of his own homosexuality (or if the applicant was female, her lesbianism), and such an applicant risks fatally damaging their case, that they are, indeed, a member of a persecuted social group, because of factors that have explanations, which are entirely unrelated to issues of honesty and/or their good or bad credit. While a decision-maker must always be vigilant against any sense that they are being lied to, or otherwise misled, by an applicant conjuring up new evidence to make his or her case, at the same time the decision-maker must not jump to unfair conclusions.  This is especially so when  a simpler and more likely explanation is that for most applicants, coming before the Minister’s Delegate or this Tribunal, as arms of the executive government of the Commonwealth of Australia, is very stressful and may induce behaviours consistent with fear and nervousness than any attempt to mislead or deceive.

10. In the materials before the Tribunal – separate to the applicant – there is a raft of independent evidence of the applicant’s homosexuality.[11] It is hard to escape the conclusion that had this evidence been before the Minister’s Delegate on the first occasion, the applicant’s case would have fared differently. While it is a burden on the applicant to make his case at the first opportunity he can (noting s.423), I do not here draw an adverse view of the applicant in this peculiar case as there were language/interpreter issues, and, also, some difficulty, it seems in securing proper representation. I note, in particular, the references and letters of support, as well as the photographic evidence of the applicant’s engagement in Sydney’s gay community.  While it is true that much of this evidence is only from recent years, at the same time, the applicant may also not have had the resources to supply earlier evidence.  Regardless, it is not particularly difficult to reach the conclusion that, as of today’s date, the applicant is very much an ‘out’ homosexual and clearly has been a homosexual for a considerable period of time.

    [11] See the applicant’s Statutory Declaration of 07 March 2024 and the materials annexed to it.

1. It follows that I have found above that the applicant is a homosexual man. I find that since he arrived in Australia in 2018, that the applicant says he has had an improved life in Australia in terms of living ‘out’ his sexuality and that he has become a part of the gay community, attended Mardi Gras, and he has joined various homosexual groups.

2. I accept the applicant’s evidence that his life within his family in Sierra Leone was difficult as a result of their Muslim beliefs and his homosexuality.  I also accept that the evidence before the Tribunal points to a more likely than not conclusion that the applicant’s sexual orientation is not newly found but, rather, that the applicant is a homosexual and both suppressed evidence of his sexuality, as well as took risks to be a homosexual, in Sierra Leone[12]. 

   [12] See the applicant’s Statutory Declaration of 07 March 2024 and the materials annexed to it.

3. This said, not every aspect of the applicant’s claim is persuasive to me.  I am prepared to accept that the applicant, when [age] years of age, was in a high school homosexual relationship with a male individual named [Mr A], which did affect the applicant’s schooling.[13] The evidence about the location and death of [Mr A] is less satisfactory – the evidence it was a particularly homophobic murder seems less persuasive – but as it is not required for me to accept it to form the conclusion that I do, I will put it to one side.[14]

   [13] See the applicant’s Statutory Declaration of 07 March 2024 at paragraph 19.

   [14] See the applicant’s Statutory Declaration of 07 March 2024 at paragraphs 19 to 30.

4. If the applicant returned to Sierra Leone now or in the reasonably near future, he would do so as a homosexual man who would be unwilling, and would also be unable, to hide his homosexuality. The applicant seems to be comfortable with and proud of his gay identity – and this gay identity is something that clearly matters to this applicant.  I cannot see how or why this applicant, on all of the evidence before the Tribunal, would be a man who could discreetly or easily camouflage his homosexuality. Moreover, given the evidence in this case, it would be pointless, as he is a public member of the Sydney gay community and this public homosexuality would be a readily discoverable aspect of the applicant were he to return to Sierra Leone.

Persecution of homosexuals in Sierra Leone

1. Given what I say above, the question therefore is whether there is a real chance that the applicant would be persecuted for reasons of his membership of a particular social group (homosexuals) should he return to Sierra Leone: s.36(2)(a) of the Migration Act.

2. The consistent reporting of DFAT and the US Department of State on Sierra Leone and homosexuality is that, as a matter of law as well as social mores, homosexuality remains taboo and that engaging in same-sex sexual activity is a crime which may result in a prison term of up to life.[15] There are reports that Sierra Leone laws criminalising same-sex sexual activity between men that are, in turn, used as justification for criminal enforcement, despite the people not being charged or prosecuted, demonstrating an arbitrary use of the laws to suppress and intimidate.[16] Sierra Leone’s homosexuals and those who advocate for them are subject to violence and blackmail.[17] As a result homosexuals in the applicant’s position will maintain low profiles within Sierra Leon society to avoid persecution.[18]

   [15] DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020.

   [16] ILGA World: Kellyn Botha, Our identities under arrest: A global overview on the enforcement of laws criminalising consensual same-sex sexual acts between adults and diverse gender expressions

   [17] United States Department of State, 2022 Country Reports on Human Rights Practices: Sierra Leone, Bureau of Democracy, Human Rights, and Labor.

   [18]United States Department of State, 2022 Country Reports on Human Rights Practices: Sierra Leone, Bureau of Democracy, Human Rights, and Labor.

3. In terms of the applicant’s hypothetical return to Sierra Leone as a homosexual man, he would be quite easily identified as a publicly ‘out’ homosexual.  It seems from all of the evidence that the applicant would likely be subject to harassment and arrest by the Sierra Leone authorities.  The applicant would also be subject to discrimination and to ostracism (or worse) by his Muslim family.

4. I cannot see any reason, based on the evidence, how the applicant’s fate in Sierra Leone would differ wherever he may reside in that country.  The citizens of Sierra Leone, generally, share the same negative view of homosexuality and do broadly support laws that criminalise same-sex sexual acts.  The stigma of being a homosexual, or even being suspect of being a homosexual, crosses religious and tribal lines, regardless of politics.  There is no realistic way that the applicant could take protective actions in respect of his own safety given how widespread is the hostility to homosexuals and the belief that homosexual acts are morally repugnant.

5. In this respect, then, it is or should be clear that this applicant’s membership of the particular social group, namely homosexuals, would be a foundation for him to be duly fearful that he would almost certainly suffer persecution, not merely apprehend the possible suffering of harm, because of his homosexuality. It seems probable that subjecting the applicant to Sierra Leone’s laws and social mores would involve his suffering not a vague persecution but probable mental and physical harms. It seems likewise probable, based on all the evidence and country information, that members of Sierra Leone society will identify the applicant as, or impute to the applicant the motive of being, a threat to the morals and good order of Sierra Leone. This applicant’s case moves well beyond it being a real chance of persecution to one of persecution as a very much probable fate for the applicant.

6. Therefore, on all of the evidence before me, I find that there is sufficient evidence that the applicant will be persecuted for reasons of his membership of a particular social group (homosexuals) if he is returned to Sierra Leone per s 36(2)(a) of the Migration Act.

   Can the applicant enter and reside in a safe third country?

7. If a person can take steps to avail themselves of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, Australia is taken not to have protection obligations in respect of that person: s 36(3) of the Migration Act.

8. In this case, however, the applicant’s rights, as a citizen of Sierra Leone, to enter neighbouring countries in the Economic Community of West African States (ECOWAS), is not as simple a question as it may appear.   That is because the applicant is a homosexual and the ECOWAS nations, generally, have laws and attitudes towards homosexuals that reflect those of Sierra Leone.[19]  It is DFAT’s reporting that 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.[20]  While DFAT does note that Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali and Niger do not criminalise consensual same-sex sexual acts between adults, these nations do not also offer any specific protections to a homosexual in the applicant’s position.[21] In this and related respects, I agree with and adopt Member Baker’s view of this issue in the recent case of 1824416.[22]

   [19] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.

   [20] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.

   [21] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.

   [22] 1824416 (Refugee) [2023] AATA 4132 (6 September 2023) at [42] to [67] per Member Sean Baker.

9. Therefore, having regard to s 36(4)(a) of the Migration Act, I find myself satisfied that the applicant would have a well-founded fear of being persecuted for reasons of his membership of a particular social group (homosexuals) if he were to seek to enter and reside in The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, or Togo.

   Conclusion

10. For the reasons given above, the Tribunal is satisfied that the applicant is a homosexual for whom there is sufficient evidence that he will be persecuted for reasons of his membership of a particular social group (homosexuals) if he was returned to Sierra Leone under s 36(2)(a).

11. For the avoidance of any confusion, if I were doubtful in my finding in respect of s 36(2)(a), I am confident that the applicant’s claim for protection under s 36(2)(aa) would succeed.

DECISION

1. 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 07 May 2024 at 11:48am

   Graham Alfred Frederick Connolly

   Senior Member

   Administrative Appeals Tribunal

   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.

   …

   
   

(Geneva: ILGA, December 2021), Sierra Leone section.