1819495 (Refugee)

1819495 (Refugee) [2023] AATA 4822 (28 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael John Doyle
CASE NUMBER:  1819495
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Penelope Hunter
DATE:28 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 November 2023 at 11:36am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – membership of particular social group – women who refused to undergo female genital mutilation – fear of harm or killing by women’s society led by grandmother – threatened, kidnapped and beaten and sister and daughter forced to undergo process – participation in advocacy projects in Australia – generally consistent evidence despite some evasive responses – country information – widespread prevalence, acceptance as traditional sociocultural norm and official toleration or support – form of gender-based violence with long-term physical and mental harms – treaty right to enter and reside in neighbouring countries limited in practice – economic conditions for single women – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sierra Leone, applied for the visa on 1 May 2018. The delegate refused to grant the visa on the basis that they were not satisfied that that the applicant met the requirements for a protection visa under the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant is a [Age] year-old single female from Sierra Leone. She states in her visa application that she was born in Freetown, is of the Krio ethnic group and is a Pentecostal Christian. Her parents are deceased. She has one sister and a daughter born in [Year]. She completed high school and in 2016, studied a Diploma at [College]. The applicant claims to never have been employed.
In a statement that accompanied her visa application, the applicant set out her claims as follows:
i.She was scared to return to Sierra Leone because she feared she would be killed by the Soweis of the Bondo Society. Her maternal grandmother is the leader of the Bondo Society, who practice female genital mutilation (FGM) in Sierra Leone. This grandmother wanted the applicant and her sister to go through the process of FGM and join the Bondo Society. The applicant was opposed due to her Christian beliefs and the experience of her mother. Two of the applicant’s close friends have also died due to the process of FGM.
ii.The applicant’s father died in 2006 and her mother in 2015. After the death of her parents, her maternal grandmother told her that if she did not join the Bondo Society she would be forced and threatened to kill her. As her grandmother is the leader among the Bondo it would be taboo for her not to be able to convince her granddaughter to join. There was no one to protect her in Sierra Leone.
iii.In October 2016, she reported her grandmother’s threats to police, however they said it was not their responsibility as it was a cultural matter. The same day she returned home to find that her sister, daughter and nephew were not at home. At midnight three Soweis of the Bondo Society came to her house and kidnapped her. She was blindfolded and put in a car and driven to a place in the bush. There she placed in an isolated small hut was beaten with canes and slapped. She was told that she was a stubborn woman, that they wanted her to take an oath and join the Bondo Society.
iv.After several days she was able to escape one night when no one was around. After walking through the bush for some hours she found a Catholic church. She lived at the church for six months and was helped by [Pastor A]. He found her a house to live in at [Town]. She lived there until she left Sierra Leone in March 2018.
v.During time in the bush she found out the secrets of the Bondo Society. It is taboo for someone to go in the bush with them without going through the process of FGM. The Soweis want to find her and kill her so that she does not reveal their secrets.
vi.Her grandmother has also threatened to force her daughter to join the Bondo society. She did not know where her daughter, sister and nephew are.
The applicant was invited to attend an interview with a delegate of the Minister on 21 May 2018. Prior to the interview the applicant provided an updated statement of 18 May 2023. In the statement she provided the following additional information:
i.The applicant is solely responsible for her daughter, she does not have a relationship with the child’s father, he has no involvement in her care.
ii.When her parents were alive they protected her and her older sister from her grandmother.
iii.Her Krio ethnicity is derived from her father and FGM is not part of his culture. She does not know her father’s extended family. Her mother and her mother’s family are of Temne ethnicity.
iv.After she was kidnapped in 2016, and put in a small hut, the three Soweis took away her clothes and only gave her a small piece of cotton to cover herself. She was humiliated and only given small amounts of food and water.
v.The hut was not far from where initiations were taking place, she could see what was happening to other girls. She saw a girl of seven being initiated, they beat her as she cried. She bled to death and the applicant was scared of the same thing happening to her. It is taboo to observe the initiation process without going through FGM.
vi.In the six months she stayed with [Pastor A] he told her that the Soweis were still looking for her. Then when she moved to [Town] she was scared and did not often leave the house. Her food and living expenses were provided by the church.
vii.She would not be safe living in [Town] long term as the Soweis are everywhere and if they see her they will kill her. There are no areas of Sierra Leone that are safe. Due to her experience with the police in the first instance she believes that they will not help her again. They will just say it is a family matter.
viii.She is worried for her daughter. She has asked [Pastor A] to assist her to find her. He told her to try to leave the country first. She applied for [an Event] so she could leave the country. This was the first time she had left Sierra Leone.
Following the interview the applicant submitted a medical report of [Dr B] dated 24 May 2018. This confirmed that the applicant had not undergone the process of FGM.
Tribunal application
On 4 July 2018 the Tribunal received an application for review from the applicant and a copy of the decision record of the delegate.
On 27 July 2023 the Tribunal received a completed response to hearing form confirming the applicant’s attendance at the hearing, and the following pre-hearing supporting submissions:
i.An mp3 copy of a podcast featuring the applicant discussing Female Genital Mutilation and her story.
ii.A letter of support dated 25 July 2023 from [Ms C] ([Job title]) at [Organisation] confirming that the applicant has been an active participant in [Organisation]’s national project, [Project name] and is part of a select group of community leaders who were recruited for the inaugural [Project] leadership program in 2022. She also participated in weekly 2.5-hour capacity building sessions for the program [in] 2022 and created a podcast as part of their community-based campaign.
iii.A letter of support dated 26 July 2023 from [Ms D], the [Pastor] of [Church].
On 2 August 2023 the representative provided a further copy of the applicant’s statement to the Department of 21 May 2018, a copy of the decision record of the delegate and submissions to the Tribunal with reference to country information. The submissions of the applicant’s representative claimed:
i.The applicant was a member of a particular social group being women who refused to undergo the process of FGM. She is in a minority in her country where approximately 85 to 90% of women have undergone the practice.
ii.The applicant could not relocate as FGM is practiced throughout the country, as are Soweis of the Bondo.
iii.If removed from Australia she has reasonable fears that she would be harmed in Sierra Leone having already been kidnapped by the Soweis.
iv.The applicant could not seek refuge in an adjoining African country as they also practice FGM.
The applicant appeared before the Tribunal on 10 August 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’s representative was also present at the hearing and provided submissions.
On 21 August 2023, the applicant submitted two letters from [Dr E], dated 15 August 2023 regarding the applicant’s daughter and sister and medical treatment they received following the process of FGM in May 2021.
Country Information
A September 2021 report on female genital mutilation (FGM) in Sierra Leone, by a registered charity, 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.[1] This is a slight reduction from a 2017 UNICEF report as identified by the US Department of State in their 2020 report on human rights practices in Sierra Leone for 2020, which indicated that 86.1 per cent of women aged between 15-49 years had undergone some form of FGM.[2] However, Sierra Leone is reported to still have the sixth highest prevalence in the world.[3]
[1] 28 Too Many, “FGM in Sierra Leone, Key Findings”, September 2021 Microsoft Word - Key Findings Sierra Leone v1 (September 2021).docx (fgmcri.org)
[2] Sierra Leone - United States Department of State
[3] 28 Too Many, “FGM in Sierra Leone, Key Findings”, September 2021 Microsoft Word - Key Findings Sierra Leone v1 (September 2021).docx (fgmcri.org)
The procedure was most common between ages 10 and 14. Approximately 71 percent of women and girls ages 15 to 49 had undergone FGM/C before age 15. According to the United Nations Population Fund (UNFPA), 61 percent of women and girls ages 15 to 19 had undergone FGM/C compared with 95 percent of women ages 45 to 49. The percentage of women who had undergone FGM/C was higher in rural areas than in urban areas.[4]
[4] Sierra Leone - United States Department of State
The UNHCR’s Guidance Note on refugee claims relating to female genital mutilation notes that a female seeking asylum due to having been compelled to undergo FGM can qualify for refugee status. The UNHCR states that it considers FGM to be a form of gender-based violence that inflict severe harm, both mental and physical, and that this amounts to persecution.[5] The UNHCR recognises that the consequences of FGM do not stop with the initial procedure and that there can be severe long-term physical and mental consequences. Survivors of FGM may be forced to undergo medical procedures upon marriage or at child birth, may face more severe forms of FGM at a later time, and may face significantly increased risks during child birth.[6]
[5] UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009, p5. Refworld | Guidance Note on Refugee Claims relating to Female Genital Mutilation
[6] UNHCR, Guidance Note on Refugee Claims Relating to Female Genital Mutilation, May 2009, p5. Refworld | Guidance Note on Refugee Claims relating to Female Genital Mutilation
As to the reasons for the practice, FGM is reported to be a social norm and a tradition that is heavily enforced by community pressure, with ‘social acceptance’ being the most cited perceived social benefit.[7] It is also reported to be a rite of passage ceremony which recognises when a girl becomes a woman in her community and is one of the activities of initiation in the Bondo society, a powerful all women led and run group. [8]
[7] As above
[8] Female Genital Mutilation in Sierra Leone: Forms, Reliability of Reported Status, and Accuracy of Related Demographic and Health Survey Questions - PMC (nih.gov)
As to the reasons why women join the Bondo society, according to a report by Foundation for Women’s Health Research and Development (Forward) an African women-led organisation:
The Bondo Society is a cultural norm in Sierra Leone. It is what is naturally expected of young women; it is what young women expect for themselves; it is what fathers and husbands demand of women. Those who do not undergo the Bondo Society initiation are regarded as outcasts, rejecting their identity and history. Pressure for girls to join the Bondo Society comes from a whole multitude of places: ‘from your conscience, your family, and community as a whole’. Bondo (and its practices) are deeply entwined with the cultural expectations and unequal treatment of young women in Sierra Leone. For example, sending girls to be initiated into the Bondo Society and therefore to undergo FGM, is said to help protect a girl’s virginity and prevent them from becoming sexually ‘wayward’. The practice itself is said to prevent them from becoming promiscuous and unable to remain faithful to their husband.[9]
Further:
Bondo is a secretive society that is integral to the culture for women living in Sierra Leone. The Society, which is more like a sisterhood or cultural identity than a club, aims to prepare young women for adulthood, their traditional role as housewife, spouse and mother, and recognises their move towards maturity and puberty. It is regarded as necessary by many communities, and young women who go through the Bondo initiation are celebrated and accorded a high social status. While Bondo is regarded as an opportunity for women to bond and protect each other within Sierra Leonean society, FGM is central to the initiation process. Women and young girls who become part of the Bondo Society have to undergo FGM.[10]
[9] Forward-Bondo-Report-2017-Updated-Branding-WEB.pdf (forwarduk.org.uk) at page 10
[10] Forward-Bondo-Report-2017-Updated-Branding-WEB.pdf (forwarduk.org.uk) at page 4
It is reported that the Bondo society has wide appeal across the country and across almost all ethnic groups. Consequently, Sierra Leonean politicians constantly distance themselves from condemnation of FGM, and given the society’s place in in politics as a mobilising force public discussions of FGM are not tolerated.[11] For example during the 2002 elections, the lone female candidate was reportedly chased away during her campaigns in Kenema for allegedly being against FGM, and the Bondo Society is seen to be capable as both making and ruining the careers of politicians.[12] Furthermore, may Sierra Leonean politicians sine independence in 1961, including a former prime minister, have courted the Bondo in their constituency by either building them initiation centres or bushes or providing money to support the initiation of large groups into the society.[13]
[11] CIS28595 The Bondo secret society Female circumcision and the Sierra Leonean State.pdf; Tom Obara Bosire, University of Glasgow, 1 January 2012 at page 4
[12] As above
[13] As above at page 5
The Guardian, in a 2015 article reports that the societies (Soweis) exist in very village and town across Sierra Leone and are a vital communications link between politicians and rural communities. This gives them the power to tell women how to vote.[14]
[14]
The law in Sierra Leone does not prohibit FGM for women or girls. With respect to opponents of FGM, the most widely reported case of FGM related death was on 20 December 2021 when, according to The Guardian and the NGO Equality Now, the body of 21-year-old Sierra Leonean Maseray Sei was found in a ‘Bondo Bush’, the enclosure of a house belonging to a secret Bondo society group, who was confirmed to have died from acute bleeding and shock a day after being subjected to FGM.[15] Following her death, the police were reported to have arrested a number of Soweis as well as the village chief. Charges are reported to have proceeded against one Soweis, and as the matter progressed there were reports of witness intimidation by groups of Bondo Soweis and tensions between the Bondo secret society and anti-FGM campaigners.[16] The Global Media Campaign to End FGM website reported:
The case against the cutter accused of killing 21-year-old Maseray Sei in December 2022 will reach the High Court on August 3rd, and it is the third appearance of the cutter accused of manslaughter by FGM.
It is also proving to be a showdown between the influential Bondo Secret Society that carries out the mutilation of teenage girls as part of the traditional coming of age ceremonies and anti-FGM campaigners.[17]
It was subsequently reported in July 2022 that the senior Soweis, aged in her 60s was released on bail by a magistrate after the prosecution failed to bring the case against her for a second time.[18]
[15] Death of young woman after FGM revives calls for ban in Sierra Leone | Women's rights and gender equality | The Guardian
[16] As above
[18] Politico Sierra Leone, 18 July 2022, Female genital cutter in court in Sierra Leone | Politico SL

Prominent anti FGM advocate, Rugiatu Turay, and founder of the Amazonian Initiative Movement, reports that she and others involved in the organisation have faced numerous death threats as well as being banned by the village chief. She was unable to rent a building for AIM as no one wanted to have anything to do with an anti-FGM organisation.[19]
[19] Deutsche-Welle, Sierra Leone anti-FGM activist wins human rights prize, 22 October 2020, Sierra Leone anti-FGM activist wins human rights prize – DW – 10/22/2020
In addition to AIM, according to the September 2021 report by 28, Too Many, there are up to 27 anti-FGM advocacy groups operating in Sierra Leone and NGOs were found to be the main advocates for FGM abolition. The report further notes that ‘[w]hile the growing number of NGOs working against FGM is encouraging, there is reluctance among development partners to engage directly in activism through legal, health or educational systems but instead focus more on working with individual communities using an indirect approach to tackle FGM to avoid political conflict’.[20] The report also states that ‘[m]any organizations involved in the work against FGM walk on eggshells and cannot directly advocate against the practice to avoid confrontation with the government’.[21]
[20] 28 Too Many, “FGM in Sierra Leone, Key Findings”, September 2021 Microsoft Word - Key Findings Sierra Leone v1 (September 2021).docx (fgmcri.org) at page 4
[21] As above at page 5
CONSIDERATION OF CLAIMS AND EVIDENCE
It is accepted that the applicant is a national of Sierra Leone on the basis of her passport submitted to the Department and her oral evidence. The Tribunal will assess her claims on this basis. There is no evidence before the Tribunal that the applicant would be excluded from Australia’s protection obligations upon the grounds in s 36(3) of the Act, and the Tribunal finds that Sierra Leone is the receiving country for the applicant for the purposes of s 36(2)(aa).
Does the applicant have a well-founded fear of persecution and is the applicant a refugee?
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.
The Tribunal has taken into account the Tribunal’s Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’ both in the conduct of the hearing and evaluating the applicant’s evidence. It has had regard to the guideline that evidence of an applicant is to be assessed in its entirety and not just isolated parts.
At hearing, the applicant emphasised that all of her claims were truthful. The Tribunal accepts that the applicant’s evidence was substantially consistent with her written claims and her evidence at interview to the delegate. It is probable that the applicant has drawn on her personal to an extent in the presentation of her claim. It is noted that the delegate made a serious of adverse credibility findings in respect of the applicant, the Tribunal has had the benefit of additional evidence and submissions, although it does remain concerned about her evidence in relation to several events.
Particularly, the Tribunal found the applicant to be evasive in her responses to questions regarding her plans for travel to Australia and her involvement in those arrangements. It does not accept as reliable her claim that she was simply given a plane ticket by [Pastor A] with no further instructions or arrangements for her to even access accommodation considering the planning and costs involved in hiding the applicant for a considerable time in Sierra Leone, the application for her visa, and her flights to Australia. The convenience of the applicant wandering around the airport in Sydney and as she claims finding a random Sierra Leonean national who direct her to someone would take her home and support her in her visa application and stay in Australia lacks believability. However, the rejection of some evidence of the applicant on account of credibility may not lead to a rejection of the applicant’s claims for a protection visa. It is acknowledged that a desire to protect those who assisted her, would be a strong motivator for the applicant’s less than forthcoming responses.
The Tribunal has therefore considered the remainder of her claims and accepts that when she departed Sierra Leone was single and the mother to a daughter, born [Date]. It also accepts that her parent’s are deceased and she lived with her maternal grandmother in Freetown, Sierra Leone, with her sister and nephew, following the death of her mother in 2015. It is accepted that the applicant’s mother and grandmother are of Temne ethnicity, and both her mother and grandmother had undergone the practice of FGM.
The Tribunal accepts the claim of the applicant, supported by medical evidence, that she has not undergone the practice of FGM. It accepts that her parents did not wish for her or her sister to undergo the practice, and it is probable that this opinion was informed by medical complications which the applicant’s mother endured, the Christian beliefs of the applicant and her parents, and the experiences of several of her close friends. It is also accepted that the applicant is opposed to the practice of FGM. It is also likely credible that while her parents were alive and providing for the applicant and her sister they were able to resist other family pressure to submit to the practice.
Although the applicant did undertake some university studies until shortly after her mother’s death, it is accepted that she never worked in Sierra Leone and was reliant on her parents for support. On the death of her mother, with a young child to support, it is also accepted that the applicant was forced to relocate to live with her grandmother in order to access safe accommodation.
The Tribunal accepts that the applicant’s grandmother was also a Soweis of the Bondo society. It is also accepted that with her grandmother in the position of a Soweis, it would be the expectation that the applicant be initiated into the Bondo society. That the applicant would have been pressured to submit to this practice from her grandmother and the community. Further, given the importance the Soweis in the process of initiation into the Bondo society it accepts that the applicant’s grandmother may have threatened and made plans to force the applicant and other family members to undergo the practice while they remained in her household. The claim of the applicant that when she reported threats to the police and their reluctance to act is consistent with the country information regarding the lawfulness of the practice and the reluctance of the authorities to act to prohibit the practice. The applicant was able to provide detail about her experience while held in the Bondo bush camp and the Tribunal found this to be generally consistent with country information about the practice and that FGM is part of a series of teachings and rituals leading to the event of initiation. It is also accepted that as part of the process of transporting the applicant to the Bondo bush it is probably that she as assaulted and threatened, and subjected to serious harm.
The Tribunal accepts that the applicant was detained for several days and put under pressure through physical beatings, deprivation of food and water, and verbal persuasion to agree to be initiated and undergo FGM. It is accepted that the applicant did not submit. The applicant provided evidence that her escape was facilitated by an incident arising with one of the younger initiates. The applicant’s evidence on this event was generally consistent with information provided to the delegate and in the podcast interview submitted to the Tribunal. These events having occurred, the actions of the applicant in seeking and accessing assistance from a church and [Pastor A] are generally accepted by the Tribunal. As it is not able to make confident findings that the applicant’s account is not credible, it must make and assessment on the basis that is possible, thought not certain that the applicant’s version of events is not true.
Despite the credibility concerns discussed above, it finds that the applicant was subjected to harm in the past in Sierra Leone. It finds that the reason for that harm was due to the intention to subject the applicant to the practice of FGM. In addition to the harm inflicted on the applicant abducting the Tribunal accepts that the practice of FGM a form of gender-based violence that inflict severe harm, both mental and physical, and that this amounts to persecution. Given the prevalence of the practice amongst women in Sierra Leone, her familial relationship as the granddaughter of a Soweis practitioner, reason for the range of harms feared by the applicant if she returns to Sierra Leone are for reasons of her membership of the particular social groups of women in Sierra Leone, women in Sierra Leone opposed to FGM and women in Sierra Leone who are a family member of a Soweis practitioner. The Tribunal considers that these groups are identifiable within society, is innate or immutable and its characteristic is not a shared fear of persecution.
Having found that the applicant was subjected to harm in the past in Sierra Leone, the Tribunal has now turned to whether the applicant’s fear of future harm on return is well-founded.
In this regard, the Tribunal accepts that the applicant would have been traumatised by her experience in the Bondo bush camp and that this would have motivated her to remain hidden for some time. The length of time that she remained undetected does not assist the applicant’s claim that she was actively being pursued by the Bondo society. It is more probable that while she remained hidden, and did not challenge the authority of the Soweis and the Bondo society, that she was not pursued. It is however, accepted that [Pastor A] and his community did not have the resources to support and maintain the applicant indefinitely.
The delegate raised concerns regarding the applicant’s perceived lack of effort to locate her daughter while she remained in Sierra Leone. This was also an issue for the Tribunal. It is accepted that in the immediate aftermath of her abduction and escape from the Soweis’ she was without any form of communication. At hearing the applicant provided evidence that she had urged [Pastor A] to assist her to enquire. She claimed that while in Australia she has restored contact with her sister and daughter, and that she had learned that they went into hiding in a neighbouring country at the time of her abduction. She claimed that her sister could not survive and support the two children on her own and returned to her grandmother. Subsequently, the applicant maintains that her sister and daughter submitted to the practice of FGM. While the Tribunal was sceptical at the lateness of this claim, on the evidence it is a matter that occurred in 2021, post review by the delegate. The applicant has provided medical evidence post hearing, documenting that this procedure was performed in 2021, and that her daughter has developed subsequent complications as claimed by the applicant. The Tribunal has independently verified through an open internet search the existence of the relevant medical facility.
The Tribunal notes the evidence of the applicant’s involvement with anti-FGM advocacy while in Australia. The applicant was able to provide clear evidence of her reasons for engagement with [Organisation], and the [Project] leadership program. It is not program in which the applicant was a mere participant. The letter of support from [Ms C], sets out that the applicant was selected into the leadership program following a competitive application process. The Tribunal accepts that this is not conduct that the applicant has engaged in for the purposes of assisting her visa application but due to her commitment to prevent FGM and promote better health outcomes for those who have undergone the procedure as a consequence of her experience. It is accepted that the applicant has genuinely engaged in anti-FGM advocacy work in Australia and with the knowledge and experience she has obtained in Australia would be motived to pursue such advocacy work if she returned to Sierra Leone. It accepts that the applicant’s membership of the particular social group of anti-FGM advocates would further increase the profile of the applicant and consequently her risk of harm from people who oppose her views.
On the material before it, the Tribunal finds if the applicant was to return to her family in Sierra Leone she would again be place under pressure and there is a real risk she would be forcibly made to undergo FGM. While the Tribunal acknowledges the country information that FGM is a procedure usually performed on younger women as part of a rite of passage to womanhood, and the applicant is a [Year] year old woman who has already had a child the Tribunal is satisfied that there remains a real risk. It is noted that in addition the above, the process of FGM is rooted in the Bondo culture and history. It is also reported to purify women and bring respectability, something important to the applicant’s grandmother who the Tribunal accepts is a Soweis leader. The Tribunal was able to locate country information that supports a conclusion that as an adult she would not be forced to undergo the process, there are in fact reports of women with children being submitted to the process.[22] The evidence before the Tribunal is that the applicant’s elder sister and daughter were also in 2021 forced to undergo this process. The applicant’s accepted anti-FGM advocacy is not without its risk in the applicant’s family setting and the wider Bondo community.
[22] Death of young woman after FGM revives calls for ban in Sierra Leone | Women's rights and gender equality | The Guardian
The Tribunal has considered whether the applicant could return to Sierra Leone and not live with her family and avoid the risk. It is probable that the applicant could again obtain assistance from [Pastor A] and his church community. However, it is accepted that they could not hide and support the applicant indefinitely. It is also accepted that they would not be in a position to extend their support to the applicant’s daughter and that she strongly wishes to be reunited with her daughter. Further, the applicant has been involved in anti-FGM advocacy while in Australia. It accepts that she wishes to continue this advocacy in the future. This advocacy work would bring her to the attention of the Bondo Society. It accepts that the Bondo Society is powerful, and although anti-FGM advocacy groups do operate in Sierra Leone, they do experience ostracism, threats[23] and operate within considerable confines.[24] The applicant has been unable go live independently in the past. The country information is that economic conditions in Sierra Leone are challenging for single women, and would be of even greater challenge for the applicant were she required to provide for herself and her daughter. The applicant’s sister was required to return to live with her grandmother for reasons of economic security.
[23] Politico Sierra Leone, 18 July 2022, Female genital cutter in court in Sierra Leone | Politico SL
[24] 28 Too Many, “FGM in Sierra Leone, Key Findings”, September 2021 Microsoft Word - Key Findings Sierra Leone v1 (September 2021).docx (fgmcri.org) at page 4
The Tribunal is satisfied that there is a real risk that, if she returned to Sierra Leone, now or in the reasonably foreseeable future, the applicant may be subjected to serious harm.
As the law in Sierra Leone does not prohibit FGM for women, and given the status of the Soweis of the Bondo society, their links with politicians in Sierra Leone and the prevalence of FGM for women and girls throughout the Sierra Leone, the Tribunal is also satisfied that the risk to the applicant of serious harm exists across all areas of the country. The applicant’s previous claimed experience of her attempt to seek protection from the authorities is accepted and the Tribunal is satisfied that effective state protection is not available to her throughout Sierra Leone.
Right to enter and reside in a third country
Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country other then Australia. However it does not apply to relation to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,[25] or where there would be a real risk that the non-citizen would suffer significant harm in relation to the country.[26]
[25] s 36(4)(a)
[26] s 36(4)(b)
Sierra Leone is one of the partners states of the Economic Community of West African States (ECOWAS) established by the ECOWAS Treaty signed in 1975, with the aim of promoting regional economic integration. ECOWAS consists of 15 partner states including Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Mali, Niger, Senegal, Sierra Leone and Togo. DFAT reports that:
The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[27]
[27] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 3.2
According to DFAT while all member states have ratified the Free Movement Protocol, gradual efforts to progress the ECOWAS protocols at the national level across members states are ongoing and implementation challenges persist. There has been some success at the Right of Entry, although only the first phase of the ECOWAS framework for regional integration (visa-free entry for 90 days) has been implemented by all member states.[28] Further, few ECOWAS member states have adapted their legislation to be in accordance with the 1979 protocol and supplementary protocols. [29]
[28] As above at 3.4
[29] As above at 3.5
The Tribunal raised with the applicant at the hearing of free movement through ECOWAS states and she told the Tribunal that as she spoke Krio and some English she believed that language could be a barrier. She also claimed that she did not know anyone in these countries, she did not think it would be safe and her representative submitted that FGM is a practice throughout West African countries.

The granting of rights of residence and establishment to ECOWAS community citizens is not guaranteed and refusal is possible on public order, public security and public health grounds. Also, most member states, national labour legislation does not set specific provisions for access to employment by ECOWAS citizens, which jeopardises the implementation of the Right of Residence.[30] Poverty also continues to be a major challenge in the region, DFAT reports that more than half of ECOWAS’ total population live on less than one dollar per day, and 10 of the world’s poorest countries in 2018 were in the ECOWAS.[31] The reliability and efficiency of passport processing at land border crossings is variable, and rivalry between Francophone and Anglophone countries can occasionally manifest in the rejection of other countries documents.[32] DFAT also notes media reports in October 2018, Sierra Leoneans, together with Guineans and Liberians experiencing delays and disrespect for their travel documentation at borders when crossing between each other’s countries for trade. [33]
[30] As above at 3.19
[31] As above at 2.6
[32] As above at 3.17
[33] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 3.17
During the first signs of COVID-19 in West-Africa in March-April 2020, 12 of the 15 ECOWAS countries closed their borders, and the remaining countries limited even essential crossings. This operated to heavily impact the freedom movement for people in the ECOWAS area.[34] The International Organisation for Migration reported that while many countries have reopened their borders, various health and travel restrictions remain and continue to have impacts on migration and mobility in the subregion.[35]
[34] Free Movement of Persons in West Africa Under the Strain of COVID-19, Abdoulaye Hamadou, 2020
[35] 'World Migration Report 2022', International Organization for Migration (IOM), 01 December 2021
Of the West African states DFAT assessed in 2020 that the security situation remains unstable across many ECOWAS member states, armed groups continue to perpetrate serious human rights abuses and attacks against civilians, for example in Mali, Niger, Burkina Faso and Nigeria.[36] DFAT further comments that human rights observers report discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region, often grounded in cultural traditions and formalised by law. Female genital mutilation (FGM) of women and girls, viewed as a traditional practice performed to promote chastity and increase a girl’s marriageability, is widespread in the ECOWAS region, particularly in Nigeria. Furthermore, DFAT comments that in-country sources report police routinely return to their families women and girls who attempt to flee their community to avoid FGM.[37]
[36] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 2.12
[37] As above at 2.16
Given the limitations in freedom of movement between ECOWAS countries, the Tribunal is not satisfied that the applicant could exercise a right to enter and reside in another ECOWAS state. Furthermore, the Tribunal is also satisfied on the country information given the applicant’s membership of particular social groups of women, women who refuse to submit to FGM, woman who is an anti-FGM advocate, and women with a family member who is a Soweis practitioner that the applicant would have a well-founded fear of persecution due to her membership of these particular social groups within other ECOWAS countries. Therefore the applicant is not excluded from Australia’s protection obligations by the operation of s 36(3).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Penelope Hunter
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4822

28 November 2023

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