1819431 (Refugee) - [2023] AATA 4079

1819431 (Refugee) [2023] AATA 4079 (11 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael Kah (MARN: 9256535)
CASE NUMBER:  1819431
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Angela Cranston
DATE:11 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 August 2023 at 14:36pm

CATCHWORDS

REFUGEE – protection visa – Sierra Leone – Christian – imputed political opinion contrary to Sierra Leonean culture and tradition – Muslim family – refusal to participate in the practice of Female Genital Mutilation (FGM) – anti FGM opinion –forced undergo FGM if returned to Sierra Leone – not a reliable witness – credibility issues – no real chance of serious harm now or in future – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), 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 21 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 18 April 2018. In her protection visa application, the applicant stated that she lived at [Address 1] from December 2017 to March 2018 and before that at [Address 2]from April 2000 to November 2017 and before that, at [Address 3]from January [year] to March 2000.

She also stated the following:

That I was born in Sierra Leone, in the west part of Africa, Freetown on [DOB]. But I came to Australia at the aged of [age] years as a [Position 1] to the Sierra Leone
[Organisation 1] in [Location 1].
I left Sierra Leone [in] March 2018 through a Temporary Activity (Subclass 408) Visa
and arrived in Sydney, Australia few days later.
I had only intended to leave Sierra Leone as my life was at a great danger as a result of my refusal to participate in the practice of Female Genital Mutilation, hereafter ("FGM").
I was born in a ruling family and grew up in a locality that has accepted and made
Bondo/FGM part of their lives norms, all my female siblings and my extended Female
family had gone through the practice.
The additional difficulty in my case was that of my [Relative 1]being [a] ([Position 2]of [a]society) and who would become embarrassed by colleagues as a result of my refusal to take part.
My parents had taken it upon themselves that all their female children must take part
in the process regardless…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1819431 (Refugee)

Details

AGLC: 1819431 (Refugee) [2023] AATA 4079
Case: [2023] AATA 4079
Decision Date: 11 August 2023

CaseChat Overview and Summary

The applicant sought review of a decision to refuse her protection visa application. The applicant, a Christian from Sierra Leone, claimed she faced persecution due to an imputed political opinion against the practice of Female Genital Mutilation (FGM). She alleged that her Muslim family would force her to undergo FGM, and that she had previously been abducted by members of the Bondo society, acting on her parents' instructions, with the intent of forcing her to participate in the practice. She asserted that if returned to Sierra Leone, she would be at real risk of serious harm.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically an imputed political opinion, such that she would be entitled to a protection visa. This required the Tribunal to assess the applicant's credibility and determine if there was a real chance she would suffer serious harm upon return to Sierra Leone.

The Tribunal found significant inconsistencies in the applicant's account of her residential history and the circumstances surrounding her alleged abductions. Specifically, the applicant provided conflicting details regarding the duration and location of her residences, and the timeline of events related to the Bondo and Sowei societies. These discrepancies led the Tribunal to conclude that the applicant was not a reliable witness. Consequently, the Tribunal was not satisfied that there was a real chance the applicant would suffer serious harm, either at the time of the decision or in the future, if returned to Sierra Leone.

The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed In her protection visa application, the applicant stated that she lived at [Address 1] from December 2017 to March 2018 and before that at [Address 2] from April 2000 to November 2017 and before that, at [Address 3] from January 1985 to March 2000. She also stated that she had refused to participate in the practice of Female Genital Mutilation, that [Relative 1] was a [Position 2]([a] society) who would be embarrassed if she refused to take part, that her parents had taken it upon themselves for her to be forcefully taken away in order to take part in FGM, that in July 1998, her family told her that she would soon undergo FGM, that around May 2005, she was forcefully abducted at night by Bondo society members who were acting on her parent’s instructions, that she was taken to the Bondo bush but escaped and that in September 2017, she went to fetch water and was detained by Sowei members who later that night came to her house and again attempted to abduct her but she managed to run away and relocated to [Town 1] where she stayed for some time, hiding from the coercive act of her parents. However at hearing she stated that she last lived at [Address 1]for 5 to 6 years where she lived with her mother, brothers, siblings and her two adopted children and also had a house in[City 1], and before that, at, [Freetown] for about a year with [Friend 1 and 2]and before that at [Address 3]which was her father’s address and stated that she was usually there from time to time when she was not with her fiancé [Mr A]at [Address 4]. She also stated she met [Mr A in 2010 and was living with him at [Address 4] until she came to Australia. When it was put to her, she had just said she lived at [Address 1] for five or six years before she came to Australia, she stated she was talking about all the different places she lived and that during the last ten years she had also lived at [Location 3], Freetown with [Friend 2]but could not remember for how long, and [Location 2] Freetown with [Friend 1]. She also stated she lived in [City 1] and was abducted from there in 2005 and 2017 but when it was put to her that all of the addresses she had identified were in Freetown, she agreed she only visited [City 1] and would stay for weeks or months to assist her mother and that [Town 1] was separate from that address and was the next village. The Tribunal put to her that in her protection visa application she stated from April 2000 to November 2017 she lived at [Town 1], [City 1], Freetown and she stated they were all different addresses. The Tribunal referred to Professor [A]’s statement that the applicant had said she lived with her partner for the past few years and asked if that was correct. She stated she lived there from time to time. The Tribunal put to her that address was not in her protection visa application which stated that she was [at address 1]and before that, [Town 1], [City 1], Freetown. She stated information was missing from her original papers.

Ratio Decidendi

Legal Principle Established

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