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

1. 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).

2. 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.

1. 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 and therefore anyone who refused would be forcefully taken
away in order to take part in the practice.
Sometime in July 1998, the family held what I now know to be an emergency meeting
chaired by two (2) elders of my family in which I was informed that I together with two
of my cousin's must undergo the ritual of FGM sometime soon.
I was a bit shocked and apprehensive since I was not fully acquainted with the process
or what they meant at the time. However, I later asked some close friends who had
already undergone the process but came to regret it. To explain to me what it entails.
Their explanations were so horrific as they stated that individuals partaking in such
practice are subjected to inhumane treatments and are further expose to unsterilized
instruments with an unprecedented complication along the line.
My issue had made things much harder for me as my older siblings are constantly
giving reference to my case siding with our parents citing that they had undergone the
practice and that I should not be exempted as that would be unfair to them.
On or around May 2005, I was forcefully abducted at night by members of the Bondo
society who were acting on the instruction of my parents. I was at home fast asleep
when I was taken to a bondo bush. The Bondo bush is a secret and confined place near
our town of [City 1].
I was fortunate enough to escape alive through the bush and with the assistance of passer-by’s.
However, I sustained some random cuts on my body as they had only just started
operating on me which was the beginning of the ritual process before I escaped.
I felt sad and weak and I was too afraid to report the incident to the Police. I explained to
the Pastor of the church that I was attending at the time who advised that I must go with
him to the Police station for which I did.
Whilst we were at the Police station, statements were taken from both of us and with the
undertaking that they would get back to us after investigating. We returned home that day and waited to see whether my abductors would be arrested but to no avail.
After few days we went back to the Police Station to make some enquiries with regard to
the incident. This time we were interrogated by the Local Area Command ("LUC") who
were asking antagonistic questions to the point of intimidating us. He went on say that their duties do not relate to interfering with what he classified as - cultural issues.
This treatment by the authorities made me feel personally hopeless and upset and I
attempted to commit suicide. It was only due to the timely intervention of my brother that
stopped me from doing so. I felt as if I do not have no rights to dictate what happens to my body and more so the threats I was receiving at the time.
After the last abduction and sometime in September 2017, I went to fetch water when I was detained by a group of ladies who are members of the Soweis. They stated that they
understand that I am refusing to take part in the Bondo and I am not allowed to fetch water.
I insisted to which I was slapped and pushed around totally unprovoked. Later that night
they came to my house and again attempted to abduct me I retaliated and they began
beating me I managed to run away.
I relocated to another part of the town called [Town 1] where I stayed for some time, hiding from the coercive act of my parents. For a reasonable period, things subsided, until I came to the attention of the Soweis in that village acting on the instruction of the other Soweis.  I am now a mature adult and my absolute refusal to join the Bondo society has drawn the wrath of my family members who belong to a ruling [Leader 1]with a deep attachment of the traditional beliefs.
[Leader 1]is my [Relative 2] who has
spoken strongly in favour of the practice and my initiation to [the] society before I
could get married.
I am therefore asking the government to assist me to remain in Australia as I would be tortured and possibility of being killed if I refuse to accept their demands. The
authority in Sierra Leone would not be able to protect me from the punishment,
enslavement and killing if I go back to the country.

1. The applicant also provided three photos allegedly showing scars from when they started operating.

2. After interview, the applicant provided the following statement:

I refer to our previous correspondence regarding my protection visa application and your request for further information.
I attach a gynaecologist’s report confirming that my genitals have not been mutilated as part of the so called ‘Bondo initiation.’
In response to your questions in the email dated 2 May 2018, as I explained in the protection visa interview, my family continuously pressured me to undergo the initiation during the period between the first time I was abducted and my final departure from Sierra Leone.
I also attach a letter from [Professor A] explaining that my father was opposed to FGM and that I believe he tried to protect me but he was not living in our house as he remarried.
Further, although I got my passport in 2016, I did not have enough money to travel outside of Sierra Leone. By that stage of my life, I had very little money and no support to travel until [Mr A] helped me to do so. I didn’t get a passport before 2016 because I did not have the means to travel outside Sierra Leone. Several times since the first abduction, I went and stayed at other places to escape harm. I returned to my house when things had quietened down with my family but eventually, I knew I needed to leave Sierra Leone to escape the threat of harm from my family.
In response to your letter regarding a ‘request for more information for a protection visa’ dated 11 May 2018, the following are my responses to the questions listed in that request:
1. Please confirm your relationship status.
I am in a relationship with [Mr A]. He is in Sierra Leone. We are not married, we are just going out.

2. Have you ever been in an intimate relationship?

Yes, with [Mr A].

3. If the answer to question 2 is yes, please provide a detailed account of that relationship
including but not limited to: where and when you met, the type of relationship, if your family were aware of this relationship, if you are still in contact with this person, if they had any opinions to you not being initiated, why you have separated from this person, or why you haven't separated from this person, if they knew your adopted children.
I met [Mr A] when I was working for [Company 1]. I had a part time job as a[Job 1]. This was around 5-6 years ago. At first, my family didn’t know about my relationship with [Mr A] but as time went by they found out. When I ran away from home I would go to [Mr A]’s house and they found out that I was staying at his house. I don’t know how they found out but somebody must have told them. I never spoke to them directly about it. I still have contact with [Mr A]. [Mr A] told me he doesn’t think the Bondo initiation is good and he doesn’t agree with the practice because he is a Christian. I am separated from [Mr A] because I came to Australia, but we still consider ourselves to be in a relationship. We have stayed together because he really cares for me and supports me. [Mr A] has met my adopted children.

4. Please explain why you have two adopted [children]including when you adopted them, why, how you have financially supported having 2[children], where are they living, how long have they lived there for, do you still stay in contact with them (if yes, when was the last time you talked to them, if no, why?), have they ever been harmed in Sierra Leone
I adopted my [children] about two years ago when their mother died. I knew her from our area and that she was suffering with trying to look after them. I used to assist her with them and give her money; she used to come to our house and beg for money. I don’t know why she died because people were saying different things; however one reason I heard was [medical condition]. The [children] did not have anyone to look after them; the father never lived with them and I never knew him.
[Mr A] used to help me take care of them including financially. I also had a part time [business] and I was working at [Company 1]part time so I used this money to support them. It was an unofficial adoption, I don’t know what would have happened to them, they might have been taken to a home and they didn’t have any strong family. They are still living at my family’s house, my mother, sisters and younger brother are helping to take care of them. [Mr A] also either goes around there or sends someone to check on them. They have lived at that house the whole time since the adoption around two years ago. I haven’t had contact with them since leaving Sierra Leone but [Mr A] tells me how they are doing. I don’t contact them because I don’t want my family to know where I am. I don’t know if my mother has asked [Mr A] where I am but I told him not to tell her. As far as I know they haven’t been harmed.

5. You stated that you do not want to be initiated into the Bondo Society due to your religious beliefs. Please state what your religious beliefs are and how you practice your religion in Sierra Leone and in Australia.
I am a Christian. In the Bible, God told Moses that only males should be circumcised, not
females. They taught me this in bible studies in Sierra Leone. I went to a government school that was also a Catholic School. I don’t know why my parents, who are Muslim, sent me to a Catholic school but it might be because there were not many Muslim schools when I was a child and this was also a government school. I became a Christian at school. We learnt about Christianity through religious and moral education. I started going to church when I was around 16 years old.
I have gone continuously since then (I have missed some weeks but I generally go each week). I was baptised when I was around 18 and I was confirmed later that year, after attending bible classes for around three months. I also went to a young adults’ group and would meet on Tuesdays. I have been going to [Church group 1] in Australia; I have gone every Sunday since coming to Sydney.

6. Please explain why your religious beliefs guide you to rejecting your participation into the Bondo Society.
Because of what God told Moses in the Bible and also because Bondo is harmful and women have lost babies or have died themselves when giving birth because of that painful experience.

7. Do your other family members follow this religion? Why/why not?
Some of my cousins and uncles are Christian but most of my family are Muslim. I don’t know why my cousins and uncles are Christian. My immediate family were born into Islam, my mother goes to Mosque and some of my siblings do, some go to church but I don’t think they are that committed to the religion, I tell them to go but they don’t always go. Some of my siblings that occasionally go to church also participate in Muslim rituals such as Ramadan fasting. Some of my siblings don’t go to Mosque or Church.

8. What age were your cousins when they were initiated?
I don’t know the exact age but they are all older than me. I was around [age] when I was first taken and I believe they were older than me when it happened to them.

9. You stated that you were not initiated when your cousins were because you refused.
Can you describe this event in detail and why you were not forced by your family on that
occasion?
I was forced because they abducted me, but I escaped. My cousins lived in the area but not with us. As I understand, they were abducted on the same day by other people who our families had arranged to abduct them and we were all taken to the same place out of the town called a Bondo bush, where the ‘initiation’ was to take place. I saw them there; it was like a ‘hut’ made of palm branches and I managed to get out by pushing through the branches while the procedure was starting, then passers-by helped me, but my cousins didn’t get away.

10. You have described both abductions as being the outcome of requests of your immediate family. How do you know this?
Because at first we had a meeting and they told us this is what they are going to do to us; it is not a secret thing. They told us that they would arrange someone to come and take us. They always told us that this was going to happen.

11. Please detail your argument to your family for refusing to be initiated into the Bondo
Society When they told me this was going to happen I always told them I am not going. I didn’t argue with them and explain my reasons; I just said I’m not doing it.

12. Were your family aware that you were coming to Australia? If yes, what was your explanation for travelling on your own? If no, how did you hide your departure from them?
No, they were not aware, I just told my younger step-[sibling]. I warned them not to tell the rest of my family. [Mr A] helped me pay for it and organised the trip without telling my family.

13. Why did you wait 2 months following your visa being approved to travel to Australia?
[Mr A] was still getting the money together.

14. How long were you friends with [Mr A], before he offered to assist you in coming to
Australia?

I have known [Mr A] for a long time (around 5-6 years), he knew about what I am going through with my family and so he offered to help me. I can’t remember exactly when this was but it was in 2017.

15. Given the risk of harm that you are claiming, and that your [Mr A] was aware of your situation that they wanted to financially and administratively assist you in leaving Sierra Leone, why did they not provide this support for you to leave once your visa to Australia was granted?
As far as I know, [Mr A]was not informed immediately after the visa was granted; I believe it may have been some weeks or a month later. He was also saving up the money and helping me when my family were pressuring me about the initiation, for example, by allowing me to stay at his house.

1. Also provided was a letter dated 21 May 2018 from [Professor A]regarding the examination and no evidence of FGM and a letter from the same stating as follows:

I am writing in my capacity as pro bono medical officer at the Asylum Seeker's Centre in[Suburb 1]. I am also a general practitioner of 30 years and Professor [at] [a University] . I have been asked by our client [the applicant]to provide this report to the Department of Home Affairs regarding her application for protection.
[The applicant]grew up in a 'ruling class' family in rural Sierre Leone. [Relative 2] was the [chief] and her father left her mother for another woman when [the applicant]was quite young. She grew up in the household with her [siblings varying in age], her mother and grandmother. [Relative 1]is [Position 2] of [a] [society].' [The applicant] is named after [Relative 1]and the family are trying to force her to take over the soweis role. Her sister has apparently been 'cut'.
[The applicant]describes her father as being 'against FGM' and she believes he tried to protect her from this when she was growing up. She reports being abducted by the soweis when she was [age] years old along with numerous other girls and taken to a place where cutting is performed. She recalls escaping from this situation before the procedure occurred but remembers having some preliminary abdominal rituals performed. She has scars on her lower abdomen consistent with this.
She fled and stayed with her church pastor's family (she is a practising Christian) and, when things quietened down, returned to her home. However, she reports ongoing pressure and attempted abductions by the soweis and eventually she met a man from Ghana with whom she remains in a committed relationship. They have lived together for the past few years and she has had several late second trimester miscarriages to him. Once again, her family claim this confirms that she is 'cursed' and they continue to try and take her from this situation. It is this gentleman who helped her escape and flee to Australia. She is very fearful for her life if she returns.
I have arranged for her to have a specialist gynaecological assessment which has confirmed the absence of FGM and the presence of normal genitalia I have enclosed a copy of [A/Prof B]'s report with our client's permission. I trust that this information provides strong support for [the applicant]'s application.

1. The Department refused to grant the visa and the applicant applied for review.

2. The applicant provided the following statement to the Tribunal:

Department of home affairs interview

During my interview with the Department of Home Affairs, I was very scared. I was not represented, and I became confused and mixed up when talking about what happened to me. We do not have interviews in Sierra Leone like there are in Australia. I had never been through anything like that before. It was extremely stressful. I didn't understand the process.
I found the delegate interviewed me like a criminal. I felt like I was in trouble and it made my panic. For this reason, some of my answers were not quite right. For this I am sorry. I had never been through an experience like this before and I felt like I was fighting for my life and freedom. I found the whole experience frightening.

After the interview my blood pressure spiked and caused me to suffer from poor mental health. It has caused me a lot of stress and has resulted in poor sleep and poor overall health. I have been on blood pressure medication since.
I provide further information about my situation here.
Background
I was born in Freetown, Sierra Leone [DOB].
When I was very young, my family and I lived across 2 residences. One in [City 1]and one in Freetown. My mother had been born in [City 1]. When she met my father, he brought her to the city. When I was born, my family consisted of my father and my mother, and elder [Sibling 1]. Later, my mother and father had [Sibling 2] and [Sibling 3].
My[Relative 1], [name deleted], and[Relative 2], they lived in [City 1]in separate houses but in the same compound.
I went to primary school at [School 1]], a catholic school when I turned 6 in around [year]. In around[year], I started high school at [School 2] until [year].
My father worked in at the [Business 2] as a [Job 2]in Freetown.
My mother ran her own [business]. She would travel to [City 1]and purchase [goods]which she would then re-sell in Freetown. This was something she did my entire life.
My parents separated when I was [years old] in [year].
After I finished high school in [year], I started helping my mother in the [business]. My father wanted me to go to college but we were unable to afford it. I also worked for [Company 1], as a [Job 1] from 2010. [Description of job deleted]. It was a very interesting role, people wanted their [goods]straight away and would often demand it. I really enjoyed the role.
Why I hold fears for returning to Sierra Leone - Background - Family
I come from a ruling family and my[Relative 1], [name deleted], is the [Position 2]. The [society] look after FGM. She lives at [address deleted]. It is my [Relative 1]'s responsibility to initiate the girls and women of the community by performing female rites including female genital mutilation.
My sisters, [Sibling 3] and [Sibling 2] on my father's side have not undergone FGM. My father prohibited it. I believe that they are still in Sierra Leone but I am unsure as I have not been in contact with them for some time.
My [biological father], , was very against FGM. He was raised a Catholic and did not believe in the practice. He was very protective of me and did not want me to undergo the procedure. However, my parents divorced when I was [age] years old. This was in [year].
[Relative 2], [is the chief]. He believes that it is taboo for me not to undergo initiation, especially because I am appointed as the next Sowei. What [Relative 2] says, goes. He is very influential amongst our community and family.
My mother remarried to [Mr B]in around 2000. He passed away in [2012]. [Mr B]believed in FGM and he was in favour of me undergoing the procedure and believed that what [Relative 1]and mother were doing was correct.
Why I hold fears for returning to Sierra Leone - Background - Sierra Leone Culture
Men in Sierra Leone also expect women to undergo FGM because it is part of the culture. They will refuse to marry you or be with you if you have not undergone FGM.
This means that I am seen as not part of the Sierra Leone society because I have not undergone FGM. If I return to Sierra Leone, the society will expect me to go through FGM.
In Sierra Leone, there is no specific age for undergoing FGM. Some people are children, some people are women, some don't have FGM until they are married and their husband force them to do it. It is common that women go through the process around the age of 20 because some families are scared to do FGM when the child is very young. They believe that you are more likely to survive FGM when you are full matured.
FGM is still practiced in Sierra Leone. The First Lady has even made comments about FGM in Sierra Leone saying that she wants to see it continue. The law cannot protect you. Politicians just say that it is a cultural thing.
Why I hold fears for returning to Sierra Leone
In 1997, my cousins on my mother's side underwent FGM. They were forcefully abducted and taken to the Bondo Bush where they went through the FGM process. My cousin's spoke with me about the process. They told me how they bled after a razor blade cut their vagina. They were asked by the Sowei not to talk about it but they did anyway. It was very hard for them to heal. It took months for it to heal. They said it was very painful and that they were always in pain. I felt bad and disgusted. I felt for them because they were in pain. I feared that my family would come for me next.
A family meeting was held in approximately 1998 where I was informed, I would be undergoing FGM. During the same meeting, [Relative 1], and the entire family, appointed me as the next Sowei to take over from[Relative1]. This is not an honour necessarily handed down to the next generation. I was surprised she chose me because I thought my mother would have been asked. But it is a spiritual appointment. I think that I was chosen because I was the eldest daughter of my mother. During a speech that [Relative 1]was giving, she chose me. I felt bad. I didn't want the appointment. My mother's family come from a Muslim background but because my father came from a Catholic background, I went to a Catholic school. I didn't believe in the same types of things as my grandmother. What is worse is that the appointment as a Sowei is a permanent appointment and cannot be broken unless I die.
I told my father about the meeting in 1998 and he told me that he doesn't believe in the practice and would not allow my mother and [Relative 1]to do that to me. But [Relative 1] doesn't want to listen.
First abduction 2005
During the first abduction, which occurred on or around late 2005, I recall Sowei, including[Relative 1], came to my house in [City 1]with no warning. They were singing and dancing. I was taking to Bush Ceremony. The whole FGM process takes days. There is a process. The Sowei had costumes on. We participated in three days of ceremonies before the initiation got underway. Day 1 starts with singing and dancing and then they wash you. Following which there is more singing and dancing. Then you are painted with a white body paint before they move you around town. The whole time they are dancing and singing and playing a drum. There are women standing behind you. They are telling people that the group of women are the next people to go through the initiation.
Day 2, they start by making little cuts on your body and placing medicine, such as for snake bite protection, into those cuts in order to prepare you for the actual ritual.
On day 3, the actual ritual takes place. There were other girls there for the initiation too. I recall I was towards the end of the line of girls, and this gave me an opportunity to escape through the palm trees.
I ran away to my [Pastor], in [City 1] and told him what had happened, and what the Sowei wanted to do to me. I knew the Pastor would help me because he preached against the practice of FGM regularly in church. The Pastor hid me for a few days and then helped me get to the police and make a report.
Nothing came of the report I made to the police. After this incident, I was too afraid to live at home full time. I had friends who were happy to take me in, and for the next 12 years I lived from place to place at friends' houses, my father's house in[Neighbourhood 1], and my boyfriend's house (from about 2013 onwards).
I was traumatised. I had sleepless nights because of bad dreams. I could not eat. I was constantly worried that they would find me at that time. There are no psychologists in Sierra Leone. We normally can only talk to our elders. But my elders wanted to harm so, so I would speak with my pastor.
After the abduction, I stayed with my father in [Neighbourhood 1]'s. I also stayed with friends from time to time. The friends that I stayed with were [Friend 1]in [Location 2] and [Friend 2]in [Location 3]. I am not in contact with them anymore. We have simply lost touch.
My mother was upset with me that I didn't go through. My [Relative 1 and 2]blamed my mother for my not going through with FGM. They said she did not nurture me well. She wanted me to go through the family and told me that I was stubborn. My father didn't want me to go and he would warn my mother not to let me go.
We have a culture in Sierra Leone that we have to respect our elders, especially our mother. And I have a soft spot. So, even though I felt like I was in danger, I still helped my mother with her business because I wanted my mother's respect. I would also travel to my mother's house on holidays and special occasions. I was frightened that they might try and force me to go through FGM again but I hoped that I would be safe because my father had insisted that I was not to go through it and because I had escaped once before.
There were still arguments between my mother,[Relative 1 and 2]. They were not happy that I had not gone through FGM. They felt that time was passing by. I was getting older and they said more stubborn. They didn't think that my father had the rights to stop me from going. They though that I should embrace and accept my culture and I should be the new Sowei when my [Relative 1] died.
[Mr A] [Mr A] [(DOB)] lived on[address]. [Mr A] is originally from Ghana. He is an [occupation] with the [Company 1],. We worked at [Company 1]at the same time and that is how we met. We started speaking as friends and then he invited me out to a bar in around 2010. We started a relationship after this.
[Mr A]and I tried to have a child in Sierra Leone. I fell pregnant on 3 different occasions in 2012, 2013 and 2017 before my second abduction. But I suffered miscarriages. I went to the hospital each time before I miscarried. In 2012, I went to[a health clinic]. In 2013, I went to a community hospital in [location]. In 2017, I went to [a different] Hospital in Freetown. My mother thought that the miscarriages were caused because I had not gone through FGM. She felt that I was cursed by evil spirits and that the spirits were destroying my baby.
Adoption of [Ms A]and [Ms B] - 2016
[Ms C]was my neighbour. She would help me with chores around the house. She would go to the market for things that I needed occasionally and she would help me wash clothes. She was very poor. Her husband was a drunkard. In return, I would help her with her children by babysitting.
[Ms C] died in 2016 from TB. Her husband did not want to be responsible for the kids. So, I took them in. Adoption in Sierra Leone is not the same as it is in Australia. There is no officially adoption or paperwork to show that you have adopted a child. I simply started to look after them and they lived with me at the [Address 1]address.
When I left Sierra Leone to come to Australia, they lived with my mother in Freetown initially but because of my family's pressure on me to return to Sierra Leone, I asked [Mr A] to look after them. [Mr A] took them in for a time. In 2019, [Ms Aand [Ms B]'s father returned and wanted to look after them. I believe they now live with him.
September 2017 Abduction
I also knew my [Relative 1] was very angry with me for not going through with FGM. My brother would come to my office in [Location] and visit me. He told me that my mother was blaming me for not going through FGM because in Sierra Leone you are not considered a full woman until you go through FGM.
In September 2017, I let my guard down one evening. I had gone to visit my mother late in the afternoon in [City 1]. It was evening time and I was still at her house. I was going to fetch water but members of the Sowei who were near my house, saw me. They hit me. They beat me up. They refused to let me collect water because they knew that I had not undergone FGM. I told them I don't want to be part of them. I fought back and I got away from them because they are much older then I am.
My mother and [Relative 1]knew that I was pregnant. They wanted me to go through FGM before I gave birth.
Later that night, [Relative 1] and the same women from earlier in the day turned up at my mother's house. I was inside my mother's house in the living room. They grabbed me and took me outside. We went to the Bondo Bush. A Bondo Bush is made of palm trees. It is not like a proper house, it is more like a hut. I stayed there overnight and all of the next day. The next night however, when there was no one guarding me, I was able to break through the palm branch wall and escape.
I then walked for about an hour or two to[Town 1], which is the next town over. There I found the local chief in his house. A chief's house is a special house that is easily recognisable. I spoke to the chief. The chief told me that it is a tradition and that there is nothing that he can do. The next morning, he messaged my family and told them that I was in [Town 1]. I was able to get enough money from a local Pastor to catch a bus back to [Location]which allowed me to escape.
The attempted abduction and forced FGM in September 2017 led to [my] miscarriage in October.
After I returned to Freetown, I stayed with [Mr A]. [Mr A] agreed to help me escape. [Mr A]had friends who were working in the government office with the Minister of [a section]. He knew of  [an event]that were coming up. They wanted to include my name as a supporter. I wanted to leave earlier but I did not have any other opportunity other than that one that [Mr A] had created for me.
I was worried about what would happen with [Ms A] and [Ms B]. I called my mother and told her that I was travelling. I didn't tell her that I was going to Australia or how long I was going for. I asked her to look after [Ms A] and [Ms B]. My sister, [sister 3] was going to be the real person looking after [Ms A and [Ms B] because my mother is more often in [City 1].
If I had the money, I would have brought [Ms A] and [Ms B] with me to Australia. But I was thinking for myself, I didn't know anyone in Australia, and I didn't know what I was going to face. So, I had to make the hard decision to leave them in Sierra Leone. I was also worried about them going through FGM.
I had applied for a renewed passport in 2016. It is common in Sierra Leone for people to have a passport just in case they need to travel and because of they need identification. I also had a friend who was going to help me to travel to the [Country 1]. He promised that he would help me but he never did. I was only ever able to get out of Sierra Leone when [Mr A] got me the 408 visa to come to Australia.

Flying to Australia
I flew into Sydney. When in Sydney, I visited the [Church group 1], who I had heard about from others on the flight to Sydney. They suggested traveling to [Suburb 2]where we could meet up with a local Sierra Leone community. There are a lot of Sierra Leone people there. They are always there and are always approachable. I was not the only one who was going to[Suburb 2]. There were 4 of us. When I arrived in [Suburb 2]and met a local person who was from Sierra Leone, he took us to the [Church group 1]in [Suburb 3]. The [Church group 1]provided me with accommodation.
Since arriving in Australia
My mother died [in]October 2018. My [Relative 2 and 1] blame me for my mother's death. They claim my mother died of a broken heart. My eldest brother told me about her death and [Relative 1 and 2]'s reaction.
[Mr A]was not able to come to Australia in 2018 because he was still working in Sierra Leone. He also had a family in Ghana that I knew about. He has a wife and kids. We were like a support system for each other when he was in Sierra Leone. He was there for me financially and emotionally. He also provided assistance to me when I came to Australia. He contacted the Sierra Leonean authorities to organise my travel to Australia and he provided me with money.
When I was in Australia, in 2021, I was talking with a man from the United Kingdom. His name was [Mr C] (no relation with my father). He offered to marry me. He came to Australia in February 2021 and offered me a ring. He also had another relationship in the UK. She was not happy with my involvement. I told [Mr A] about his offer and the situation because I felt I was able to confide in [Mr A] and because [Mr A] has his own family. [Mr A] did not take it very well. [Mr A] wanted me to remain single for him. We have not been in contact with each other for some time now.
[Relative 2] has also died since I have been in Australia. He died [in] April 2023. I found out through my brother.
I did a Certificate IV in 2018 through the Tafe at [Suburb 2]. This course took 6-months. Once the course was finished, I started a work placement (voluntary) at[a service]. I was there for about 3-months. After that I started working for various companies, all working in [a particular] sector. I am now working for [company name] on [location]. I have been working with them for 3-years now.
I have also been in a relationship with[Mr D], a permanent Australian resident. We live together at [address].

Reasons I cannot return to Sierra Leone
My father lived at [Address 3], Freetown but has since moved to[Neighborohood 2], Freetown. My father has re-married himself when I was in Freetown. His new wife is not a good lady. She doesn't want to see myself and [Sibling 3]or [Sibling 2]and she doesn't allow to stay in the house. She only wants her own children to stay there. Plus, the house is only a three-bedroom apartment. In the house currently, there are my father, his new wife, and her two daughters. They have not undergone FGM because of my father's influence. But I don't believe my father can protect me any longer as he is in his late 60's and unlike his new wife's children, my family want me to go through with the procedure.
I am very scared to return to Sierra Leone. [Relative 1]is still alive. She is now the only senior person in my family alive outside of my father and he cannot help me. I am afraid that [Relative 1]will continue to try to have me abducted and initiated, particularly now that my mother has passed away, and failing that, I believe she will try to kill me for dishonouring the family.
I am not able to relocate to another part of Sierra Leone because it is a small country where everybody knows every body's business. If I was forced to return to Sierra Leone, I would not have anywhere to live. I could not live with my father, my mother has died. My elder brother is married, he has a wife and children, I cannot live with him. Also, in Sierra Leone, news travels fast, particular amongst the tribes. I believe [Relative 1]will come and find me. It will not be hard for her to do this.

1. Also submitted was a document allegedly from the Sierra Leone Police [in] March 2023 stating amongst other things, that sometime in May 2005 the applicant reported that a group of women belonging to the Bondo Society kidnapped her and wanted to forcefully initiate her, “that she was issued with a medical report and asked to return it to the station”, and that statements were obtained from her and her witness.

10.  The adviser also made the following submissions:

1. In respect of the Department interview, [the applicant] was extremely nervous and frightened during the delegate’s interview and was intimidated by the process. This can be heard on the recording of the interview by her mannerisms and shy, timid, and softly spoken responses during the interview. [The applicant]panicked and provided answers outside of her character. She has since provided a statement clarifying her circumstances to
ensure the Tribunal is fully abreast of her circumstances. We submit that should there
be any inconsistencies between[the applicant]’s written testimony and her interview, the
Tribunal should give [the applicant]the benefit of the doubt given her psychologist diagnosis
of post-traumatic stress disorder, anxiety, depression, severe insomnia and stress
concerns.
2. [The applicant]was born in Freetown, Sierra Leone. She holds a Sierra Leonean passport
and travelled to Australia as the holder of a subclass 408 visa. We submit that [the applicant]

is a Sierra Leonean citizen and that Sierra Leone is her home country for the purposes
of the Refugee assessment.
3. [The applicant]fears FGM. As a woman who fears FGM, she is a member of a particular
social group. In addition, as a woman who does not believe in FGM, she may be
considered anti-FGM and therefore she may be imputed to hold a political opinion
contrary to Sierra Leonean culture and tradition. [The applcaint]has actively engaged in anti-
FGM forums through her work as [a] with NSW Health
([Local Health District]).

4.[The applicant]’s family on her mother’s side hold traditional views and are considered a
“ruling family”. This is evidenced by [the applicant]’s [Relative 1 and 2]. [The applicant]’s
[Relative 1]held leadership positions within Sierra Leone’s traditional culture as a
Soweis whilst her recently deceased [Relative 2]was a [Chief]. Further, it
follows that the passing of [Relative 2] will see his role as a [Chief] pass to one of his
decedents, likely a cousin of[the applicant]. This assumption is supported by a Harvard
University Report which states “[o]nly individuals from the designated “ruling families”
of a chieftaincy are eligible to become Paramount Chiefs”.
5. The FGM initiation process is held deeply by individuals and society more broadly in
Sierra Leone. This is evidenced by a high level of support for FGM’s continuing practice
in Sierra Leone from politicians and even Sierra Leone’s first lady, and the Sierra
Leonean government’s failure to enact appropriate laws to eradicate FGM.
6. One of the delegate’s concerns was that [the applicant]had managed to resist familial and
societal pressures when she left Sierra Leone in 2018, several years after reaching
adulthood. However, the likelihood of a woman being subject to FGM increases as she ages. [The applicant] is now [age]-years-old. The evidence shows that 95 per cent of woman aged between 45 and 49 have endured FGM. It follows that members of Sierra
Leonean society would expect [the applicant]to have been through FGM, in addition to her
family members who have long desired she undergo the procedure. This supports
[the applicant]’s attestation that men in Sierra Leone will often refuse to engage in a
relationship with a woman unless they have endured FGM because if they have not,
they are not considered a “full woman”. It also supports [the applicant]’s claim that her
mother believed [the applicant] was possessed be evil spirits who were destroying her
babies whenever she fell pregnant. The Sierra Leonean society expects women to go
through FGM, and when something untoward or negative occurs in the life of a woman
who has not been initiated, the lack of initiation is to blame. [The applicant]s age is only likely
to increase the familial and societal pressure [the applicant] is likely to face if she returns to
Sierra Leone.
7. The desire of her grandmother to have [the applicant] experience FGM so that she may take up a position within the Sowei is only likely to have strengthened following the death
of [the applicant]’s mother in October 2018. [The applicant] believes she was targeted to take over
from [Relative 1] because she is the eldest daughter of her mother. This is also
likely to increase the familial and societal pressure applied to [the applicant].
8. [The applicant]’s father attempted to shield her from FGM in the past. However, he cannot
be expected to provide protection for her in the future for several reasons. Firstly, he
has recently turned [age]-years of age. In a nation where the average life expectancy is
just 60.8, he is clearly considered elderly. Secondly, he has remarried and is currently
living with his wife and her two children in a small apartment. Physically, there is not
sufficient room for [the applicant]. And thirdly, he failed to adequately protect [the applicant]on
two previous occasions.
9. [The applicant] was born into an inter-faith relationship, her mother coming from an Islamic
background and her father, being a Catholic. [the applicant] was educated in Christian
schools and follows the Christian faith. The independent evidence suggests that a
woman is less likely (although still very likely) to undergo FGM if she is Christian rather
than Muslim (77% v 93%). However, it is [the applicant]’s mother’s family who are
determined that she undergo the procedure. Therefore, for the purposes of this
assessment, we submit the prevalence of FGM throughout Sierra Leone should be
based on the Muslim figure (93%).
10. [The applicant]’s circumstances can be distinguished from that of her sisters and step-sisters, who have not undergone FGM. In relation to her father’s daughters from his second marriage, they are not related at all to [the applicant]’s mother and therefore, are not of
interest to [the applicant]’s [Relative 1] or her[Relative 2]’s family. And whilst her sisters, [Sibling 3]
and [Sibling 2], are related, as they are not the eldest child, they do not face the same
degree of pressure to conform to Sierra Leonean traditions as [the applicant]. [The applicant] is
expected to become a Soweis herself. To follow in the footsteps of[Relative 1].
For [the applicant]’s[Relative 1], [the applicant]’s initiation is of paramount importance. Hence
her repeated attempts to forcefully initiate [the applicant]. Additionally, [the applicant]has
experienced [several] miscarriages and is now [age]-years old without a family of her own. This
is likely to increase the pressure placed upon her by her mother’s family to be initiated
as her mother viewed her miscarriages as the work of evil spirits because she had not
been initiated.
11. Internal relocation is not an option available to [the applicant]. FGM and the culture which
surrounds it is ubiquitous in Sierra Leone. The UNHCR states that where a claimant is
from a country with a universal (or near-universal) practice of FGM, internal relocation
should not be considered a relevant alternative.
12. Another of the delegate’s concerns was that [the applicant] was capable of returning to
Freetown where she could stay with her partner, [Mr A]. This is no longer the case. In
fact, [the applicant] would have nowhere to go if she returned to Sierra Leone. [Mr A]has
returned to Ghana and she has lost contact with her former friends. She cannot stay
with her family. She has no employment to return. If she returned to Sierra Leone, she
would be returning as a vulnerable single woman.
13. The delegate was also concerned with [the applicant]’s willingness to return to [City 1] to
visit her mother after the 2005 abduction attempt. [The applicant] has explained the
importance of family in Sierra Leone and the respect between a child and their mother.
It is also not unreasonable, that after several years had passed [the applicant] would begin
to feel slightly more comfortable returning to see her mother. [The applicant] acknowledges
that this was a mistake and states that she “let her guard down” in September 2017.
14. [The applicant]’s fear is objectively well-founded. Even if one were to argue that [the applicant]had managed to escape FGM before leaving Sierra Leone in March 2018 and therefore,
the likelihood of her suffering FGM in the future is less than 50 per cent, or even as
low as 10 per cent, one could not argue the chance was far-fetched or remote (per
McHugh J in Chan). At the very least there is a “reasonable possibility” that should she
return to Sierra Leone either her family or another member of Sierra Leone’s society
in the reasonably foreseeable future would force her to go through with the practice.
The independent country evidence clearly demonstrates that the overwhelming
majority of Sierra Leonean women [the applicant]’s age have endured FGM and that the
Sierra Leonean government have made little to no progress in eradicating the practice.
Were [the applicant] to return to Sierra Leone and seek to start a family, it is highly likely that
any potential partner would expect she would have undergone FGM and knowing that
she had not, would expect her to go through FGM. At the age of [age], [the applicant] is looking
to start a family. She has fallen pregnant 3 time before. It is fair to say that any attempt
at a new relationship in Sierra Leone would fall within the “reasonably foreseeable
future”.
15. The facts outlined in 1709438 (Refugee) [2019] AATA 6603 share several significant
similarities. Whilst [the applicant] is from Sierra Leone and 1709438 dealt with an applicant
from Liberia, according to the facts quoted in 1709438, 89.5% of women in Liberia
aged 15-49 are subjected to FGM. In Sierra Leone, 86% of women aged 15-49 are
subjected to FGM, however this figure rises to 95% when only women aged between
45 and 49 are considered.
16. Whilst there has been some indication that Sierra Leone has attempted to somewhat
curtail FGM, at least in times of a pandemic or epidemic, the prevalence of FGM
remains concerningly high. The UNHCR reports that for effective protection to be
available by a home country’s authorities, those authorities “must display active and
genuine efforts to eliminate FGM, including appropriate prevention activities as well as
systematic and actual (not merely threatened) prosecutions and punishment for FGM
related crimes”. As seen in UNOHC report mentioned above (Sierra Leone: End
impunity for female genital mutilation, say UN human rights experts’, dated 24 August
2022), even where a prosecution is brought against a cutter in Sierra Leone, the
prosecution is hamstrung by the lack of criminal prohibitions on the practice. Therefore,
is not only fair to conclude but it is accurate to say that individuals who fear FGM in
Sierra Leone cannot obtain adequate or effective protection from Sierra Leonean
officials.
17. The facts in 1910071 (Refugee) [2019] AATA 6019 (30 July 2019) can be distinguished from [the applicant]’s circumstances. In 1910071, the Tribunal found that the two targets for FGM had effective protection in the form of their parents who had both shown an intent not to have their children initiated. [The applicant]’s father is unable to provide her with any form of protection moving forward and her mother, whilst now deceased, had always show a desire to have her initiated into the Bondo society through FGM.
18. Whilst Sierra Leone is an ECOWAS member state, [the applicant] would not be able to
obtain sufficient protection from any other ECOWAS state for three main reasons.
Firstly, FGM is ubiquitous in all ECOWAS countries. Thus, were [the applicant]to move to
another West African nation she would likely face the same state-wide discrimination
and stigmatism she would face in Sierra Leone. Secondly, any country that she is
capable of travelling to within the ECOWAS states, her family are also capable of
travelling to. Additionally, because FGM is ubiquitous in all ECOWAS countries, were
[the applicant]’s family to locate her in another ECOWAS nation there would be no effective
state protection available to [the applicant]to prevent her family from forcing her to suffer
FGM. Thirdly, as the “right” referred to in s 36(3) must be an existing right, and not one
that has lapsed or might occur in the future, the rights of residence and establishment
cannot constitute a right to reside and live in an ECOWAS country.
19. Additionally, as in 1915344 (Refugee) [2022] AATA 4971, [the applicant], if forced to travel to another ECOWAS country, would be travelling alone without any visible means of support and therefore likely vulnerable to being refused admission.
20. In summation, we submit that the evidence establishes that:
a. [The applicant]is a Sierra Leonean citizen and is outside of her country of nationality;
b. As a woman opposed to FGM, she is a member of a particular social group
within the definition of s5L (membership of a particular social group other than
family);
c. Her fear is well-founded both objectively and subjectively; she faces
persecution in the form of serious harm (significant physical ill treatment of the
person) if she returns to Sierra Leone;
d. She is unable to avail herself of the protection of Sierra Leone as the Sierra
Leonean authorities have consistently failed to eradicate the process, have
completely failed to properly prosecute individuals who engage in the practice,
even when it is against the will of a person; and
e. Even if she were to return to Sierra Leone, there is no where she can go where
FGM is not practiced.
f. She is unable to travel to another ECOWAS state because FGM is prevalent
throughout the ECOWAS states and because any right to travel to another
ECOWAS state she has, her family has as well.
21. In light of the evidence, and keeping in mind the Tribunal’s decision in 1709438
(Refugee) [2019] AATA 6603 (23 October 2019), we submit that the Tribunal should
find that [the applicant] is a refugee and is owed protection obligations by Australia per s
36(2)(a) of the Act.
22. In the alternative, the Tribunal should find that as a necessary and foreseeable
consequence of [the applicant] being removed from Australia to Sierra Leone, there are
substantial grounds for believing she will suffer significant harm in the form of cruel or
inhuman treatment or punishment (FGM). The Tribunal should make this finding on
the basis of the reasonable scenario that [the applicant] would seek to engage in a
relationship in Sierra Leone and that it is likely any male partner would expect her to
have either undergone FGM or undergo FGM in the future. A male partner’s expectations are supported by the extremely high rate of FGM in Sierra Leone.

11.  The applicant appeared before the Tribunal on 21 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages. The applicant was represented in relation to the review.

12.  The applicant stated that she completed the protection visa application form and statement herself, the form was correct but there were gaps in her statement.  The Tribunal put to her that her statement was typed and on statutory declaration letter head and she stated her lawyer typed her statutory declaration. She then stated the [Church group 1] had helped her and she did not know if they were lawyers. The Tribunal put to her that the person who helped her seemed to have some legal knowledge given her statement was in the form of a statutory declaration and she stated she believed the person who helped her was a legal person.

13.  The applicant stated she came to Australia in March 2018 and applied for a protection visa in April 2018. She stated she was aged [age] and last lived [at address 1] for 5 to 6 years before she came to Australia where she lived with her mother, siblings and her two adopted children. She also had a house in [City 1]. Before that, she lived at, [Freetown] for about a year with [Friends 1 and 2]and before that she lived at[Address 3], Freetown which was her father’s address. She could not remember how long she was there but said she was usually there from time to time when she was not with her fiancé [Mr A[at]. She stated she met [Mr A]in 2010 and was living with him [at] 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 telling the Tribunal all the different places she lived which she had previously left out. When the Tribunal asked if she had lived at any other address in the last ten years, she stated she had lived at[Town 3], Freetown with her [friend] but was just roaming from place to place and could not remember for how long, and [Address 1]with [Friend 1]and she had lived in [City 1] and was abducted from there in 2005 and 2017. She said her mother was in [City 1]. The Tribunal put to the applicant that her mother was also living in Freetown and all the applicant’s addresses suggested she herself was in Freetown. She stated they had a family house in [City 1]and visited and would stay for weeks or months where she assisted her mother. When asked where [Town 1]was, she stated it was separate from her address and it was the next village.

14.  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.

15.  The applicant stated she was last detained in [City 1] when she went to visit her mother in September 2017 and when she went to fetch water a group of women attacked and beat her, but she escaped. She stated she went home and the same group came at night and took her to the bush. When asked who the women were, she stated they were the Soweis acting on behalf of[Relative 1 and 2]. When asked if anyone else was there, she stated it was the Soweis. The Tribunal put to her that in her statement dated 2023 she said [Relative 1]was also there. She said the women were acting at the instruction of her[Relative 1]. The Tribunal put to her it may find it significant that [Relative 1] was supposedly there, but she had not said that in her earlier statement.  When asked how she could get away from ten people she stated they were mostly elderly. She also stated after she escaped, she went to [Town 1]and spoke to the chiefs who did not do anything about it.

16.  The Tribunal referred to the professor’s statement that said she had 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 that she was [at address 1]] and before that, [Town 1], [City 1], Freetown. She stated information was missing from her original papers.

17.  The applicant stated in 2005 she was attacked by women and [Relative 1]and went to hospital and had cuts on her [body parts]. She also went to the police station. When asked what treatment they gave at the hospital, she said they gave her medicine, and she was treated and when asked for further details, she stated she had movement medicine and some tablets. When asked what movement medicine was she stated it was liquid that was put on wounds. She also stated you could not compare the health system with Australia.

18.  When asked why the police report written in 2013 stated “she was issued with a medical report and asked to return it to the station” she stated she did not know.

19.   The applicant stated she feared returning to Sierra Leone because she did not want to be initiated into the bondo society and did not want to be a Sowei. She also stated they would kill her because she refused to take part. The Tribunal put to her she did not mention that she feared [Relative 1] nor that they wanted her to take over her role in her protection visa application.  She stated she was in fear and naïve and left out information. The Tribunal put to her in her protection visa application she said she was afraid of her parents. She stated she left out her [Relative 1 and 2] but was afraid of them. The Tribunal put to her that when the department talked to her, they had asked why they would choose her and not her mother and she said she did not know and had never thought to ask. She said it was because she had her[Relative 1]’s name. The Tribunal put to her that in her latest statement she said there was a meeting in 1998 where she was told she would be undergoing FGM and that her [Relative 1]and entire family had appointed her as the next Sowei to take over from [Relative 1].

20.  The Tribunal asked why there was [age] years between the abduction attempt in 2005 and 1998 and 20 years between the abduction attempt in 2017 and 1998 which was a long time if her family wanted her to be initiated.  She stated her father was against the idea and warned her mother not to do that.  She also stated things came to a standstill during the war. The Tribunal put to her that she said it was her parents she feared. She said she left out information and in reality, she feared [Relative 1 and 2] .  The Tribunal put to her that in her statement she said the delegate interviewed her like a criminal. She said she was naïve, and there was a lot of pressure during the interview. The Tribunal asked when she first raised the issue and put to her that it understood it was this month. She said she apologised for her wrong language and was not properly schooled. The Tribunal put to her it had listened to the interview and was not sure that it agreed with her when she said she had been interviewed like a criminal. She again said she may have used the wrong expression.

21.  The Tribunal asked what her understanding was of when FGM occurred, and she stated in Sierra Leone there were different ages.  The Tribunal put to her it understood it was a traditional passage to womanhood and she stated that was true. The Tribunal put to her she was [age] and the country information did not suggest that she would be subjected to FGM. She stated they initiated women up to 50 years. The Tribunal put to her that she was stating that her family had been after her for 20 years. She said her father had protected her.

22.  The Tribunal put to her it may not accept what she was saying was true, but if it did not, it would still need to consider whether she would be subjected to FGM but given her age, the Tribunal may not accept that.  

23.  The adviser stated that the applicant felt like she was in trouble at interview, that is, it was a subjective comment and not an accusation. The adviser also stated that FGM was a passage to womanhood and that there was only 8 per cent under aged 14 that had been cut, that number increased as they aged and while there was only 86% cut between the age of 15-49, between the age of 45 and 49, 95% had been cut showing an upward trend. He also stated the applicant went through miscarriages which the family thought was a curse. The Tribunal put to him he was reading things into the reports and that if FGM was a traditional rite of passage into womanhood, and if a snapshot of women in September 2021 indicated 83% of women aged 15-49 were subjected to FGM, then that was simply a snapshot and you could not draw the conclusion that they were subject to FGM as they aged and it was more likely, given the country information that that group of women were subject to FGM during their adolescence.  The adviser said there was an increase in the age of the percentage of women who had undergone FGM. The Tribunal put to him that the country information before it suggested that that the overall prevalence of FGM in Sierra Leone was decreasing that is, from 91.3 percent in 2008 to 83 percent in 2019. 

24.  The Tribunal put to the adviser there were potential inconsistencies in relation to addresses, who the applicant allegedly feared and why and was unable to say it was her [Relative 1] who came to her home with 10 women whereas her previous statement said her [Relative 1]was there. 

25.  The applicant stated she had been naïve, she had lapses because of her educational background and she knew there were inconsistencies, but she was not lying.

26.  The Tribunal also indicated the age in the quoted AAT decision was [age] and did not support a suggestion that a [age]-year-old would be subject to FGM.

27.  Following the hearing, the Tribunal sent the following:

Your alleged appointment as the next Sowei

Q. How are they aware that you are the person who is meant to be taking over
from [Relative 1]?
A. Because I am the elder daughter to my mum.
Q. So have all the female family members in your family being initiated?
A. Yes even my cousins.
Q. So why couldn’t it be one of your cousins that could take over from [Relative 1]why does it have to be you?
A. Because I have [Relative 1’s] name, so I am the namesake of[Relative 1], so they choose me.
Q. Why not choose your mother?
A. I don’t know.
Q. You have never thought to ask seeing that you don’t want to do it?

A. No.

This information is relevant to the review because the Tribunal may find that at
interview, your answers suggest you had not turned your mind to issues such as why your mother was not chosen instead of you because you were not talking about events
that had occurred.
If the Tribunal finds this, then subject to your comments, it would affirm the decision
under review.

28.  Post hearing the applicant’s adviser provided further information as follows:

• Press release dated [in] July 2023 [from]stating a [age]-year-old had been forcibly cut in 2016
• A submission dated 7 August 2023
• A general article, not specific to Sierra Leone entitled why some women choose to get circumcised. 
• Undated UNICEF Statistical profile with some references to 2017 on female genital mutilation that states FGM commonly occurs in adolescence and a chart that states percentages of girls aged 15 to 49 years who have undergone FGM but current age.
• A letter from [Mr E] dated 30 July 2023 stating the applicant has great integrity.
• A further statement from the applicant

COUNTRY INFORMATION

Female Genital Mutilation

• A September 2021 report on female genital mutilation (FGM) in Sierra Leone, referring to information from the Sierra Leone Demographic and Health Survey 2019, indicates that the prevalence of FGM in women aged 15-49 years in Sierra Leone is 83 per cent. An earlier survey finding report of a Multiple Indicator Cluster Survey for Sierra Leone carried out in 2017 by Statistics Sierra Leone refers to 86.1 per cent of women aged 15-49 years having undergone some form of FGM. The Demographic and Health Survey 2019 indicates that 92.1 per cent of daughters aged 0-14 had not been circumcised, while the survey findings report states that 8.4 per cent of daughters aged 0-14 years had undergone a form of FGM.

• A September 2021 report on female genital mutilation (FGM) in Sierra Leone indicates that the prevalence of FGM in women aged 15-49 years in Sierra Leone is 83 per cent. According to the report:

  There has been a slight reduction in the overall prevalence of FGM in Sierra Leone from 91.3% in 2008 to 89.6% in 2013, and more recently to 83.0% in 2019, according to the Demographic and Health Surveys (DHS). Nonetheless, Sierra Leone still has the sixth-highest FGM prevalence in the world and is classified as a ‘Group One (very high prevalence) country’, according to the UNICEF classification. 45.0% of women aged 15-49 who have undergone FGM were cut between the ages of 10 and 14. The prevalence for women aged 45-49 is 94.9%, while for the youngest age group, this has fallen to 61.1% indicating a reduction in the trend among younger women.

• The September 2021 report refers to information on FGM provided in the Sierra Leone Demographic and Health Survey 2019. Among the statistics referred to in the Demographic and Health Survey, the survey ‘asked women with female children whether their daughters age 0-14 had been circumcised and, if so, at what age’. The relevant table shows that 92.1 per cent of daughters aged 0-14 had not been circumcised.

• The US Department of State (USDOS) report on human rights practices in Sierra Leone for 2020 states that ‘[a]ccording to a 2017 UNICEF [United Nations Children’s Fund] report, 86.1 percent of women between the ages of 15 and 49 have undergone a form of FGM/C [Female Genital Mutilation/Cutting]’.  The report also states that ‘FGM/C is considered a traditional rite of passage into womanhood. UNICEF polling indicated that societal support for FGM/C remained strong in the country’.

• A survey finding report of a Multiple Indicator Cluster Survey (MICS) for Sierra Leone carried out in 2017 by Statistics Sierra Leone with technical support from UNICEF as part of the Global MICS Programme, also indicates that 86.1 per cent of women aged 15-49 years had undergone some form of FGM. The survey findings report also states that 8.4 per cent of daughters aged 0-14 years had undergone a form of FGM.10 The report notes that ‘[i]t is important to remember that prevalence data for girls age 0-14 years reflect their current – not final – FGM status, since many of them may not have reached the customary age for cutting at the time of the survey. They are reported as being uncut but are still at risk of undergoing the procedure’. A snapshot of key findings of the Sierra Leone 2017 MICS further states that ‘[t]herefore, the data on prevalence for girls under age 15 is actually an underestimation of the true extent of the practice. Since age at cutting varies among settings, the amount of underestimation also varies and this should be kept in mind when interpreting all FGM/C prevalence data for this age group’.

• A UNICEF statistical profile on female genital mutilation in Sierra Leone, updated in January 2020, provides similar statistical information to that provided in the survey findings report above. The statistical profile notes that ‘FGM commonly occurs in adolesence [sic]; nearly half of girls who underwent the practice were cut after age 10’. It also indicates that ‘[t]here is evidence of some decline in the prevalence of FGM in Sierra Leone, and attitudes towards the practice have also changed over time’.

CRITERIA FOR A PROTECTION VISA

29.  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.

30.  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.

1. 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).

32.  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.

1. 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

34.  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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Sierra Leone and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Sierra Leone, there is a real risk that she will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

3. 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.

4. 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.

5. 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.

6. The Tribunal finds that the applicant’s evidence in relation to where and who she has allegedly lived in Sierra Leone has continued to change with each telling and when that evidence was put at hearing, she was evasive and keen to hurry through her evidence. The Tribunal is not satisfied that the applicant is telling the truth about where and who was living with. While the applicant stated that during her departmental interview she was scared, not represented and became confused and mixed up when talking about what happened and that the delegate interviewed her like a criminal and she felt like she was in trouble which made her panic and that for this reason, some of her answers were not quite right, putting that interview to one side, the applicant’s inconsistencies in relation to her alleged addresses arise in part from her answers in her protection visa application form which she said was correct and her evidence at hearing as well as the letter from Professor [A] which she herself gave to the Tribunal. The Tribunal does not consider it unreasonable to assume that if the applicant were telling the truth about her residential addresses that she could have identified with some level of consistency where, for approximately how long and who she was living with. In this case the applicant failed to even state in her protection visa application that she had a fiancé who she was living with and further, proceeded at hearing to identify many addresses that were not in her protection visa application, stated at hearing she was at [Address 1] for 5 to 6 years when her protection visa application stated that before she came to Australia she was at [Address 1] from December 2017 to March 2018, and also stated at hearing that [Address 2] was separate from where she lived in [City 1] but stated in her protection visa application that she lived at[Address 2].  

7. In addition, the applicant’s evidence in relation to who and what she allegedly feared has also changed, that is, in her protection visa application she stated she feared returning to Sierra Leone because she refused to participate in the practice of Female Genital Mutilation, that her [Relative 1]who was a [Position 2] of [a] society) would be embarrassed if she refused to take part, but that it was her parents that had arranged for her to be forcefully taken away in order to take part in FGM, that on around May 2005, she was abducted at night by Bondo society members who were acting on her parent’s instructions, and that again in September 2017, she 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 hid from the coercive act of her parents. Subsequently her story changed when she stated that her father was opposed to FGM and tried to protect her and that during a meeting in 1998 [Relative 1]and entire family appointed her as the next Sowei to take over from [Relative 1], that during the first abduction in 2005 Soweis, including [Relative 1] came to her house, that in September 2017 [Relative 1] and the same women from earlier in the day turned up at her house and took her outside and that she was scared to return to Sierra Leone because [Relative 1] was a senior person who would continue to try to have her abducted and initiated, and failing that, would try to kill her for dishonouring her family. The Tribunal does not accept that someone who feared [Relative 1]and who had been appointed as the next Sowei would fail to mention that in their protection visa application. The Tribunal also finds that at interview, the applicant failed to display an interest in such issues as why she and not her mother was chosen to be Soewi however post hearing she stated she never discussed her appointment because she was shocked and apprehended (the Tribunal assumes the applicant meant apprehensive).

8. The applicant’s failure at interview to display an interest in such issues as why she and not her mother was chosen to be Soewi suggests to the Tribunal that she had not turned her mind to such things prior to interview because they did not hold much relevance for her because she was not talking about events that occurred. Neither does the Tribunal accept that if she was talking about real events, she would identify her parents as the instigators of her persecution if in fact one of her parents was protecting her.   

1. In addition, when asked at hearing who the women were in September 2017, the applicant stated they were the Soewis acting on behalf of [Relative 1 and 2]when according to her written statement dated 7 July 2023, [Relative 1] was allegedly amongst them. The Tribunal also finds that the applicant’s evidence in relation to her alleged injuries and the treatment she subsequently received because of her alleged attack in 2005 was vague and unconvincing and not indicative of someone who was describing events that occurred.  In reaching this conclusion, the Tribunal has considered the document allegedly from the Sierra Leone Police dated 13 March 2023 that allegedly corroborates the applicant’s evidence about the alleged 2005 kidnapping attempt. This document somewhat gratuitously refers to extraneous evidence such as a medical report and states that the applicant was issued with a medical report ‘and asked to return it to the station’ and appears to be a careful attempt to refer to all the evidence presented to the Tribunal about the alleged 2005 kidnapping attempt. Given the Tribunal’s concerns about the applicant’s lack of credibility concerning the alleged attack in 2005, the Tribunal is not persuaded that this document is genuine. Neither does it believe the applicant when she states that the photos are evidence of this alleged attack.

1. The Tribunal also finds that while the applicant stated that her family who was allegedly desperate to initiate her failed to do so over a twenty-year period because her father protected her, the Tribunal has already found it does not accept that the applicant would have identified her parents as the instigators of her persecution if one of those parents (her father) was protecting her. It also finds the applicant failed to provide a plausible explanation as to why it was her desperate family were unable to initiate her over a twenty-year period especially when various versions of her story have her living with them.

2. As put to the applicant at hearing, the Tribunal’s understanding was that she failed to raise any issues with the department concerning the departmental interview even though she provided to the Department post interview submissions. The Tribunal has listened to the departmental interview and at hearing questioned the applicant’s submission that she found the delegate interviewed her like a criminal. The applicant withdrew that statement at hearing and said she may have used the wrong word. The agent has stated that the applicant should be given the benefit of the doubt because of her psychologist diagnosis of post-traumatic stress disorder, anxiety, depression, severe insomnia and stress concerns, however the Tribunal’s overall perception of the applicant and her ever changing story is that she is not talking about events that have occurred, and that is the more likely reason for her continuing inconsistencies rather than any mental health issues. The Tribunal also considers the applicant’s statement at hearing that she was naïve and had lapses because of her educational background is yet another attempt to paper over her many inconsistent answers in relation to her alleged residential addresses and other inconsistencies.   

3. For all the reasons above, the Tribunal does not find the applicant a reliable witness and does not accept that the applicant has faced any of the alleged persecution in the past nor that any of the alleged events in Sierra Leone including her attempted suicide have occurred. Neither does the Tribunal accept that she holds an anti FGM opinion that she will articulate on return or that she will be perceived to hold an imputed political opinion contrary to Sierra Leonean culture and tradition. In reaching this conclusion, the Tribunal has considered [Mr E]’s statement that says the applicant is of great integrity however he only met the applicant after she came to Australia, has no knowledge of the applicant’s claims outside what she has told him, and the Tribunal is not satisfied for the reasons above that what she said is true. The Tribunal has also considered the statements of Professor [A]however again, the Professor has no knowledge of the applicant’s claims outside what the applicant has said, and the Tribunal is not satisfied for the reasons above that what she said is true.

4. The agent has stated that the likelihood of a woman being subject to FGM increases as she ages. He states the evidence shows that 95 per cent of women aged between 45 and 49 have endured FGM. Post hearing, he provided an undated UNICEF Statistical profile with some references to 2017 that states FGM commonly occurs in adolescence and provides a chart that states percentages of girls aged 15 to 49 years who have undergone FGM by current age.

5. The Tribunal accepts that country information suggests women can be forcibly cut after adolescence however the country information before the Tribunal including that provided by the agent suggests that FGM is considered a traditional rite of passage into womanhood that occurs in adolescence. Country information also suggests there is some decline in the prevalence of FGM in Sierra Leone and attitudes toward the practice have also changed over time.

6. The Tribunal does not accept that a historical snapshot at a point in time of women aged between 45 and 49, including the UNICEF Statistical profile, supports a conclusion that women today are more subject to FGM as they age since the country information before the Tribunal suggests that FGM occurs in adolescence and suggests a snapshot or profile of women at various ages, whatever that age, were subjected to FGM during their adolescence. 

7. Neither does the Tribunal accept that the decision in AAT Decision 1709438 which involved a 21-year-old Liberian applicant is precedent for finding that the [age]-year-old applicant will face FGM if she returns to Sierra Leone.

8. The Tribunal has found that it is not satisfied that the applicant has faced past persecution. Neither is it satisfied that she is from a family that has or who will force her to do anything. Given this, the Tribunal is not satisfied that there is a real chance the applicant will be forced, regardless of her age to undergo FGM or that she has a real chance of serious harm in the reasonably foreseeable future if she returns to Sierra Leone. While the applicant’s adviser has submitted that it is a reasonable scenario that the applicant would seek to engage in a relationship in Sierra Leone and that it is likely any male partner would expect her to have either undergone FGM or undergo FGM and that a male partner’s expectations are supported by the extremely high rate of FGM in Sierra Leone, and post hearing, the applicant has claimed the same thing, the evidence does not support a suggestion that male partners are somehow more likely than anyone else, to insist on FGM. The Tribunal also considers this submission and the applicant’s comments speculative only and does not consider it reasonably foreseeable.  Given its overall concerns with the applicant’s credibility, neither does the Tribunal accept the applicant’s post hearing claims that she has nowhere to live, nor that members of her society will hunt her down. The Tribunal also finds her vague statements that Sierra Leone is not safe and that her country is not stable politically and there are killings speculative and do not mean that if she returns to Sierra Leone she has a real chance of serious harm in the reasonably foreseeable future. Neither does the Tribunal accept that she holds an anti FGM opinion that she will articulate on return or that she will be perceived to hold an imputed political opinion contrary to Sierra Leonean culture and tradition.

1. After considering the applicant's articulated claims, the Tribunal is not satisfied that if the applicant returns to Sierra Leone she has a real chance of serious harm in the reasonably foreseeable future.

2. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Definition. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant has been telling the truth about her alleged persecution in Sierra Leone and the Tribunal has rejected the entirety of the applicant's claims. Neither does the Tribunal accept that she holds an anti FGM opinion that she will articulate on return or that she will be perceived to hold an imputed political opinion contrary to Sierra Leonean culture and tradition. The Tribunal also finds her vague statements that Sierra Leone is not safe and that her country is not stable politically and there are killings speculative and is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

1. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Angela Cranston
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…