1819304 (Refugee)

This matter concerned an application for a protection visa by an individual from Sierra Leone. The applicant claimed to be a homosexual man who had faced expulsion from school and had been in hiding prior to arriving in Australia. The decision under review was made by a delegate of the Minister.

The primary legal issues before the Tribunal were whether the applicant was homosexual and whether his homosexuality posed a real risk of persecution or significant harm to him if he were returned to Sierra Leone. The Tribunal was required to consider the evidence presented, including country information regarding the laws, religious beliefs, and societal attitudes in Sierra Leone, and to assess the applicant's credibility, taking into account potential difficulties arising from trauma, language barriers, and the use of an interpreter and representative.

The Tribunal found that the evidence of the applicant's homosexuality was overwhelming and independent of his own testimony. It acknowledged that the applicant had performed poorly before the Minister's Delegate, but cautioned against drawing adverse credibility conclusions solely on this basis, noting that prior trauma can affect memory recall. The Tribunal applied the principles established in *Sivalingam*, which emphasise sensitivity to the experiences of refugees, including distrust of authority figures and potential memory failures due to trauma and stress. The Tribunal was satisfied that the applicant would have a well-founded fear of persecution for reasons of his membership of a particular social group (homosexuals) if he were to seek to enter and reside in several neighbouring countries, including The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, and Togo.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958*. The Tribunal also indicated that if there were any doubt regarding section 36(2)(a), the claim would succeed under section 36(2)(aa).