1820567 (Refugee)
[2024] AATA 4007
•3 October 2024
1820567 (Refugee) [2024] AATA 4007 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Daniela Annemarie Ion (MARN: 1792307)
CASE NUMBER: 1820567
2207251
COUNTRY OF REFERENCE: Sierra Leone
MEMBER:Amanda Goodier
DATE:3 October 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the second named applicant satisfied s36(2)(b)(i) of the Migration Act on the basis of the same family unit as the first named applicant.
Statement made on 03 October 2024 at 4:53pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – particular social group – lesbian – gender-based violence – rape by police – corrective rape against lesbians – female genital mutilation – fear of killing – mental health issues – protection in the Economic Community of West African States (ECOWAS) – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816Any 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 2 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant who claims to be a citizen of Sierra Leone applied for the visa on 14 May 2018. The first named applicant, on behalf of the second named applicant who is her [child] born in Australia, lodged an application for protection on 17 June 2019. The delegate refused to grant the visas on the basis that they were not satisfied the applicants are persons to whom Australia owes protection obligations.
The first named applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments on behalf of herself and the second named applicant who is a minor. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The applicants were represented in relation to the review. At the commencement of the hearing the first named applicant consented to a joint hearing and joint decision.
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.
The relevant DFAT report in this matter is the DFAT Thematic Report for ECOWAS dated 3 December 2020, the relevant parts of which are discussed further below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this matter is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on complementary protection grounds or is a member of the same family unit of a person who is owed protection and who holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The first named applicant travelled to Australia on a passport issued in Sierra Leone and has consistently claimed to be a citizen of Sierra Leone. She has provided to the Department a Sierra Leone passport in her claimed details. The Department has accepted, and the Tribunal similarly accepts, that the first named applicant is a citizen of Sierra Leone. The Tribunal has assessed the first named applicant’s claims against Sierra Leone as her country of nationality.
The second named applicant was born in Australia. Her mother at the time of her birth was the holder of a temporary Australian visa and a citizen of Sierra Leone. Therefore, the second named applicant is a citizen of Sierra Leone.[1] The Tribunal has assessed the second named applicant’s claims against Sierra Leone as her country of nationality.
Claims for protection
[1] Sierra Leone Citizenship Act, 1973’, National Legislative Bodies (Sierra Leone), 24 May 1973, CIS20866; ‘Sierra Leone 2016 Human Rights Report’, US Department of State, 3 March 2017, OGD95BE926937, Section 6, p.21.
In her protection visa application, the first named applicant indicates she was born in [specified year] in Freetown, Sierra Leone. Both parents are citizens of Sierra Leone. She was assisted in the preparation of her application for protection. Her ethnicity is Limba and religion Christianity. She lists her occupation as [occupation 1]. She indicates she has never been married or in a relationship. She indicates her parents are deceased and her [specified family members] remain living in Sierra Leone. Her [other relatives] also remain in Sierra Leone. She arrived in Brisbane in April 2018 as the holder of a subclass 408 visa after departing legally from Sierra Leone. Apart from Australia, she has never travelled to any other country. She indicates she lived at the same address in Freetown from birth to her departure for Australia. She was employed as [an occupation 1] in [an agency 1] from [specified year] to March 2016 then was self-employed as [an occupation 1] in her community, working from her home. The first named applicant completed [number] years of education in Sierra Leone as well as three years at the [named college], graduating with her [occupation 1 qualification].
The first named applicant provided to the department a copy of her Government of Sierra Leone, [occupational] Enrolment dated [in] March 2015.
The first named applicant provided a sworn statement with her application for protection as well as a sworn statement to the Tribunal including a submission and supporting documents. She fears returning to Sierra Leone as she is a lesbian. She fears she will be killed or severely beaten if she is returned to Sierra Leone by members of her community, members of the public as well as the Sierra Leone authorities, including the police. She provided information on her family, past sexual assaults as well as her past lesbian relationship. The first named applicant provided details of her treatment by the authorities and others in the community due to her sexuality.
To the Tribunal the first named applicant provided copies of the birth certificates for each of her [children] born in Australia. No father is listed on [the birth certificates]. Her first [child] was born in [specified year] and her [next child] in [year]. The first named applicant told the Tribunal her first [child] was the result of her rape by police in Sierra Leone before her departure for Australia and her second daughter from a one-night stand when she was drunk. The applicant’s [next child] does not have an application before the Tribunal, [being] born after the delegate’s decision and the lodging of this application for review. Therefore [that child] cannot be included in [the] mother’s or [sibling’s] applications.
A statutory declaration from [Relative B] was provided in which he stated that the first named applicant is his [relationship specified]. He supported her financially from 2015 to 2017 when he learned from acquaintances, she was a lesbian. He stated it was a stigma for family members and not acceptable in Sierra Leone. The first named applicant told the Tribunal that her lawyer, who confirmed that she did speak to him on behalf of the first named applicant) contacted him to ask about providing the statement which he did. She has not spoken to [this relative] at all as he will have nothing to do with her.
The first named applicant provided a letter dated July 2024 from [Doctor A], Psychiatry Registrar, [Hospital 1] indicating the first named applicant is a patient and providing information on her mental health. The letter indicates that the applicant suffers from Post-Traumatic Stress Disorder and Post Natal Depression. The letter provides information on her symptoms, including difficulty concentrating, exhaustion, poor memory and anxiety. She has significant anxiety related to her current visa status and her real fears of being returned to Sierra Leone where she faces harm. The letter refers to the first named applicant’s background and claims as well as country information.
The first named applicant provided a letter from [Mr A], Project officer, LGBTQIA+ Community Support, [Agency 1]. He indicates he has known the first named applicant since 2021 when she joined the group seeking support and community. During the initial screening process, the first named applicant disclosed she was a lesbian. She met the requirements for admission to the group and became an active and valued member until her relocation from Sydney in 2023. The group appreciates the significant contributions the first named applicant made during her time with the group.
A letter dated 11 April 2024 from [name], Community Mental Health Peer Practitioner, [Agency 2] was provided indicating that the first named applicant has been provided with on-going psychosocial outreach support since January 2024. This is a service for people needing additional support in the community and focuses on life around her health and wellbeing and enjoying meaningful activities.
A letter dated 15 May 2025 from [name], Women’s Health Counsellor, [Agency 3] was provided indicating the first named applicant had attended four sessions between January and May 2024. She was a previous client of the service. [Agency 3] is a specialist service providing women’s health services and counselling for those impacted by sexual assault.
The first named applicant provided emails and newsletters from [Agency 4] from October 2023. A receipt dated 9 August 2024 for the purchase of a T-shirt was provided as well as photographs of the first named applicant in the T-shirt. Screenshots of a conversation between the administrator and the fist named applicant were provided as well as another receipt/ticket for dinner and spiritual reflection on [a day in] August 2024. The first named applicant provided five photographs of her attending an [Agency 4] function wearing her T-shirt.
A written submission in support of the first named applicant’s claims was provided by the representative. The representative also addressed s36(3) and ECOWAS.
The first named applicant gave evidence at hearing, expanding on her claims as well as explaining that her mother was a soweis in Sierra Leone. Her mother attempted to take her to perform cutting but was stopped by her father who opposed the practise. She is frightened she will be unable to protect her [children] if returned to Sierra Leone from FGM. The first named applicant explained to the Tribunal that she was unable to be registered as [an occupation 1] in Sierra Leone until she travelled to [Australia]. She has worked in Australia in [industry 1] but due to her mental health issues has had to take time off. Her parents have passed, and her [remaining family members] in Sierra Leone have nothing to do with her.
Findings and reasons
When assessing claims in protection visa matters, the Tribunal must make findings of fact in relation to the claims made and in doing so, assess whether the claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[2] The Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). However, asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[2] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, section 15.3.
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[3]
[3] AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’ , available on the AAT Website, >
For these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[4] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[5] An Australian study found that Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[6]
[4] Fox v Percy (2003) 214 CLR 118.
[5] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, < Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is conscious and mindful that there may be deficits in memory for a variety of reasons, and that there may be factors that consciously or otherwise influence decisions.[7] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[8] in regard to the process of credibility assessment. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[7] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
The Tribunal has also taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[9] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[10] A similar approach is taken in the Department’s Refugee Law Guidelines[11] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[12] which provides useful guidance for this Tribunal.
[9] AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, < SZLVZ v MIAC [2008] FCA 1816 at [25].
[11] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017.
[12] UNHCR, re-issued February 2019 at 203–204.
On assessing claims of sexual identity, the UNHCR Guidelines on International Protection No.9 notes that:[13]
Ascertaining the applicant’s LGBTI background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender identity, rather than a focus on sexual practices.
[13] UNHCR, “Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees”, 23 October 2012; see: <>
The UNHCR Guidelines on sexual orientation and gender identity indicate that LGBTQI individuals frequently keep aspects and sometimes large parts of their lives secret, and many suppress their sexual orientation and/or gender identity to avoid the severe consequences of discovery, including the risk of incurring harsh criminal penalties, arbitrary house raids, discrimination, societal disapproval, or family exclusion. That an applicant may be able to avoid persecution by concealing or by being ‘discreet’ about his or her sexual orientation or gender identity, or has done so previously, was not a valid reason to deny refugee status. Being compelled to conceal one’s sexual orientation and/or gender identity may also result in significant psychological and other harms.
The Tribunal has been careful not to make assumptions about plausibility of her relationship in Sierra Leone, given the different cultural environment. Assessing claims involving sexual orientation requires particular care as sexual identity and conduct is so private and differs between individuals. Past experiences of discrimination or other harm may shape how a person thinks about and expresses their identity. The Tribunal has drawn on recent studies and commentary[14] about these issues. As stated in an academic article reviewing literature about asylum claims on sexual orientation ‘as sexual orientation is not an overt and directly observable trait, applicants need to personally reveal their identity to establish the claim. Yet, like other categories of applicants, including survivors of sexual violence or human trafficking, they may feel guilt and shame in disclosing sensitive details in a stressful judicial setting to an official and an interpreter from their own community. This is particularly likely if applicants have had to conceal their sexual identity, experience internalized homophobia or have doubts over interview confidentiality’.[15] The Tribunal was conscious that the interpreter was male and discussing past sexual assaults as well as her sexuality was difficult for the first named applicant during the hearing in his presence.
[14] For instance: Berthelot, Will, ‘Sexual Orientation And Gender Identity As A Basis For Refugee Claims In Australia’ [2020] UNSWLawJlStuS 1; (2020) UNSWLJ Student Series No 20-0
[15] Asylum claims based on sexual orientation: a review of psycho-legal issues in credibility assessments’, Selim, Hedayat, Korkman, Julia, Pirjatanniemi, Elina, Antfolk, Jan, Psychology, Crime & Law, 25 February 2022, 20230810113141
After considering the evidence before the Tribunal and mindful of the considerations concerning credibility matters referred to above in sexual identity and refugee matters, the Tribunal is persuaded on the evidence that the first named applicant is a lesbian.
The Tribunal also accepts on the basis of the evidence before it, the first named applicant has been diagnosed with mental health issues and requires considerable support.
The Tribunal also accepts on the evidence provided that the first named applicant’s young [children] will be returning to Sierra Leone with her.
The Tribunal accepts that the applicant will be returning to Sierra Leone with her [children] where she will not have a support network. According to country information, female headed households in Sierra Leone faced a higher dependency ration that male headed households, making them significantly more prone to food insecurity, are poorer than male headed households and are linked to lower asset ownership.[16] Women in Sierra Leone face widespread discrimination in society.[17] While many women work in Sierra Leone, and noting that the first named applicant has qualified as [an occupation 1], traditionally women have been involved in low income activities.[18] Women did not have equal access to economic opportunities and discrimination occurred in access to credit, equal pay for similar work, ownership and management of a business.[19] The lack of stable jobs and means of income generation can lead to women being more vulnerable to sexual violence.[20]
[16] WFP, State Of Food Security In Sierra Leone 2020 - Comprehensive Food Security and Vulnerability Analysis, 21 June 2021, pp. 31-32.
[17] USDOS, 2022 Country Report on Human Rights Practices: Sierra Leone, 20 March 2023, p. 17.
[18] Intellecap, Promoting a Resilient and Inclusive Private Sector in Fragile Contexts – Sierra Leone, 17 May 2021 p. 25
[19] USDOS, 2022 Country Report on Human Rights Practices: Sierra Leone, 20 March 2023, p. 17
[20] UNDP, Capturing the Socioeconomic and Cultural Drivers of Sexual Violence and Gender-based violence in Sierra Leone, 12 October 2022, p. 38
Various sources report that FGM practices in Sierra Leone are very common and are rooted in traditional, cultural, religious customs and gender stereotypes.[21] Around 90% of women aged between 15 to 49 years in Sierra Leone have undergone FGM. It is considered a requirement for social acceptance and as a transition to womanhood. The law does not prohibit FGM.[22]
[21] Freedom House, Freedom in the World 2020- Sierra Leone, 4 March 2020; UNICEF, Statistical Profile on Female Genital Mutilation, Sierra Leone, May 2020, BTI, 2020 Country Report Sierra Leone, 29 April 2020, p. 21; USDOS, 2020 Country Report on Human Rights Practices: Sierra Leone, 30 March 2021, pp. 16-17; Plan International, Fighting Female Genital Mutilation (FGM), Changing Hearts and Minds in Sierra Leone, 13 May 2020.
[22]USDOS, 2020 Country Report on Human Rights Practices: Sierra Leone, 30 March 2021,pp. 16-17; Freedom House, Freedom in the World 2020- Sierra Leone, 4 March 2020,UN General Assembly, Compilation on Sierra Leone, Report of the Office of the United Nations High Commissioner for Human Rights, 26 February 2021.
Mental illness is highly stigmatised in in Sierra Leone and as a result, people with mental health conditions experience significant societal discrimination.[23] While the government has taken steps to increase treatment for and awareness of mental health, services for mental health treatment remain severely limited and under resourced.[24]
[23] ‘Country Report on Human Rights Practices 2016 – Sierra Leone’, US Department of State, 3 March 2017, p.24, OGD95BE926937.
[24] ‘Improving access to mental health services in Sierra Leone’, World Health Organization, undated, CIS7B83941831.
The Tribunal finds based on the country information as well as the evidence of the first named applicant, should she return to Sierra Leone as a single mother with her [children], she will have no family support and experience difficulty in finding employment as well as suitable accommodation. The country information indicates she will be vulnerable to sexual violence as will her [children]. Based on the country information, the Tribunal finds the first named applicant will experience difficulty in obtaining treatment for her mental health issues, leaving her and her [children] vulnerable.
The Tribunal is satisfied that the first named applicant is a member of a particular social group of ‘lesbians in Sierra Leone’. She shares a characteristic shared by each member of the group, which is an innate or immutable characteristic, and the characteristic is not the fear of persecution.
The first named applicant fears others in the community, the authorities, and the police in Sierra Leone because she is a lesbian. She fears they will harm or kill her because she is a lesbian. She has already been raped because she is lesbian and fears it will happen again. Her lesbian friend was killed. She cannot expect to be protected by the police or the authorities.
The law in Sierra Leone criminalises same-sex activity between men.[25] This law is not enforced, and there is no similar law in relation to same-sex activity between women.[26] However there are reports of occasional arrests as well as consistent reports of significant discrimination and violence against LGBTIQA+ people.[27] Sources also suggest that corrective rape against lesbians is ‘prevalent’.[28]
[25] Amera International website, <Sierra Leone LGBTQI+ Resources – AMERA International>.
[26] United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023.
[27] Human Dignity Trust website, ‘Sierra Leone’, <Sierra Leone | Human Dignity Trust>.
[28] United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023; Human Dignity Trust website, ‘Sierra Leone’, <Sierra Leone | Human Dignity Trust>.
There have been consistent reports of violence committed against LGBTIQA+ people, as well as threats, harassment, blackmail, familial rejection, and the denial of basic rights and services.[29] An extensive study by three LGBTI organisations over eight months in 2012 and 2013 found that ‘on the topic of violence and discrimination against LGBTI persons … LGBTI individuals in Sierra Leone are frequently subjected to discrimination and high levels of verbal abuse, violence and harassment by public officials, members of their communities and even their own families.’[30]
[29] United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023.
[30] Global Rights: Partners for Justice, Dignity Association and Pride Equality, ‘Discrimination on the Basis of Sexual Orientation and Gender Identity in Access to Health Care and Violence/Bias – A Sierra Leone Case Study’, 1 January 2018, p. 10, <>
The International Lesbian and Gay Association Report 2019 states that same-sex sexual acts continue to be a taboo subject in almost all West African countries.[31] The report suggests that public opinion and media usually consider sexual orientation as a choice that reflects a sexual perversion. These views have justified multiple forms of violence from arbitrary detention, school exclusion, denial of medical attention, expulsion from home, arbitrary dismissal from employment to lynching and murder. The report states that in all of West Africa there is stronger media focus on sexual orientation issues, with the media tending to publish incendiary articles with denigrating references to LGBT people.[32]
[31] ILGA, May 2019, <ILGA_State_Sponsored_Homophobia_2019.pdf>.
[32] ILGA, May 2019, <ILGA_State_Sponsored_Homophobia_2019.pdf>.
The Heartland Alliance and others’ Submission to the 110th Session of the Human Rights Committee, March 2014[33] made the following points about the treatment of lesbians in Sierra Leone:
·Individuals are widely discriminated against on the basis of sexual orientation, and attacks go largely unpunished and hate crimes are rarely reported.
·The 1861 Offences Against the Person Act criminalises sexual conduct.
·In 2002 Sierra Leone emerged from a decade-long civil war but in the reform process following, the Act was not repealed.
·The State continued to arbitrarily arrest and detain LGBTI individuals.
·Many members of the LGBTI community hide their sexual orientation.
·Discrimination against LGBTI individuals was prevalent and extremely visible in hospitals.
·LGBTI individuals are often excluded from school all together or constantly ridiculed and persecuted.
·Corrective rape is highly prevalent in Sierra Leone and is a source of fear for many lesbian women. Corrective rape is often planned and initiated by family members in an effort to change the sexual orientation of women and girls. Victims rarely report rape due to a fear of repercussions and lack of conviction.
[33] Heartland Alliance and others, ‘Breaking the silence on human rights violations in Sierra Leone under the International Covenant on Civil and Political Rights (ICCPR) A Shadow Report on discrimination and violence based on Sexual Orientation and Gender Identity, submitted to the 110th Session of the Human Rights Committee’, Geneva, March 2014.
It is also reported that religious establishments oppose the LGBTI community and consider lesbianism to be a taboo subject.[34] Sources suggest that homosexuality is considered to be a ‘western import’ and is often thought to have no place in African society[35] with being gay regarded as being a sin and of bringing bad luck.[36] One local media source states that ‘Sierra Leoneans are mainly anti-gay’.[37] An article in Nightwatch in 2019 referred to a young man wanted in Freetown for being gay. The article stated that being gay is taboo in Sierra Leone. The young man was attacked, chased out of a guest house and monitored by local authorities. The article referred to another gay man being killed by the community.[38] In January 2020, Harold Thomas, also known as Queen Harold, was killed after suffering injuries sustained in a homophobic attack. Queen Harold used the pronoun ‘she’, was a model, a prominent LGBTI activist and drag queen in Sierra Leone.[39] The Dignity Association estimates that 75 per cent of men having sex with men live an ‘underground life’ and refuse to take HIV medication for fear of being harassed.[40] LGBTI advocates report that the community is denied public services such as health care, justice and housing.[41] In a recent article in the New York Times the reporter mentioned that people in Sierra Leone told him that homosexuality did not exist in Sierra Leone, with many telling him they had never encountered a gay person.[42]
[34] Religion News, ‘Sierra Leone – Human Rights Defenders stay silent on LGBTQ discrimination’, 1 August 2018; Amera International website, <Sierra Leone LGBTQI+ Resources – AMERA International>.
[35] Global Rights: Partners for Justice, Dignity Association & Pride Equality, ‘Discrimination on the Basis of Sexual Orientation and Gender Identity in Access to Health Care and Violence/Bias – A Sierra Leone Case Study’, 1 January 2018, p. 9.
[36] Dazed Digital, ‘Photos of Sierra Leone’s LGBT community, where gay is a sin’, < Concord Times, ‘Where is Hamidu Jalloh?’, 14 May 2019.
[38] Nightwatch, 20 June 2019, <Sierra Leonean Gay Youth Declared Wanted in Home Country | Night Watch Newspaper>.
[39] Mina Bilkis (Sierra Leone), ‘LGBTQI in Sierra Leone: The Queen Harold Project’, 5 July 2020.
[40] The Global Fund, ‘Dignity’, 5 July 2017; Global Rights: Partners for Justice, Dignity Association & Pride Equality, ‘Discrimination on the Basis of Sexual Orientation and Gender Identity in Access to Health Care and Violence/Bias – A Sierra Leone Case Study’, 1 January 2018, pp. 11–15; US Department of State, ‘Country Reports on Human Rights Practices for 2020 – Sierra Leone’, 30 March 2021.
[41] US Department of State, ‘Country Reports on Human Rights Practices for 2020 – Sierra Leone’, 30 March 2021.
[42] New York Times, ‘When your sexuality is against the law’, 27 May 2023.
One report suggests that for the LGBTI community, suffering acts of violence and degrading treatment is a ‘daily reality and a source of constant fear’.[43] One activist stated that they face violence and exploitation at home, in schools, communities, clubs, churches, mosques and the street. He said ‘for me, violence has become a way of life’. When a story was published in a local newspaper about this activist, he was attacked by two men on motorbikes.[44]
[43] Heartland Alliance and others, ‘Breaking the silence on human rights violations in Sierra Leone under the International Covenant on Civil and Political Rights (ICCPR) A Shadow Report on discrimination and violence based on Sexual Orientation and Gender Identity, submitted to the 110th Session of the Human Rights Committee’, Geneva, March 2014.
[44] Heartland Alliance and other, ‘Breaking the silence on human rights violations in Sierra Leone under the International Covenant on Civil and Political Rights (ICCPR) A Shadow Report on discrimination and violence based on Sexual Orientation and Gender Identity, submitted to the 110th Session of the Human Rights Committee, Geneva, March 2014.
Lesbians are also reportedly at risk of being victims of ‘planned rapes’ as the community attempts to correct their sexual orientation.[45] A 2020 interview with a bisexual woman who lives in Freetown said that she prefers to be with women but is currently in a relationship with a man. She states that it is expected that she marry her partner saying, ‘I know I will one day end up being married to a man and that is something I will learn to live with’.[46] One report states it is ‘highly prevalent’.[47] Victims rarely report due to fear of retaliation and a lack of action by police. There are almost no rape convictions in Sierra Leone.[48]
[45] Rights in exile, ‘Sierra Leone LGBTI Resources’, 1 January 2018.
[46] Mina Bilkis (Sierra Leone), ‘Story 1: The Queen Harold Project’, 5 July 2020.
[47] Heartland Alliance and other, ‘Breaking the silence on human rights violations in Sierra Leone under the International Covenant on Civil and Political Rights (ICCPR) A Shadow Report on discrimination and violence based on Sexual Orientation and Gender Identity, submitted to the 110th Session of the Human Rights Committee, Geneva, March 2014.
[48] Heartland Alliance and other, ‘Breaking the silence on human rights violations in Sierra Leone under the International Covenant on Civil and Political Rights (ICCPR) A Shadow Report on discrimination and violence based on Sexual Orientation and Gender Identity, submitted to the 110th Session of the Human Rights Committee, Geneva, March 2014.
There have also been reports of attacks on gender and sexual rights organisations, including the destruction of property and blackmailing.[49] Members of the LGBTI community have voiced their concerns with coming out to their family as they fear violence, being ostracised or being reported to the police.[50]
[49] Front Line Defenders, ‘Sierra Leone/Front Line Defenders’, undated.
[50] The Global Fund, ‘Dignity’, 5 July 2017; Lucas Ramon Mendos, ILGA, ‘State sponsored homophobia 2020 Global Legislation Overview update’, 15 December 2020.
On the evidence before the Tribunal, including the country information referred to above, the Tribunal finds that the chance of the first named applicant suffering serious harm for reasons of her sexual orientation or relationship, in the form of significant physical harassment or significant physical ill-treatment from the authorities or those in society emboldened by the anti-LGBTI sentiments of political and religious leaders, if she lived openly as part of a lesbian couple, or expressed her lesbian sexuality openly, would not be remote or far-fetched. The Tribunal further finds on the country information that such threat of serious harm would be present throughout the country as the harm feared is from the State and community, and harm could be inflicted on her wherever she lived..
The Tribunal is satisfied that the harm would be for the essential and significant reason of the first named applicant’s membership of a particular social group of lesbians in Sierra Leone, given the country sources referred to above which indicate extreme antagonism towards lesbians.
The country sources referred to earlier in this decision indicate that the targeting of LGBTIQA+ people in Sierra Leone is deliberate and non-random, directed at people because of their sexual orientation. The Tribunal is satisfied that there would be persecution involving systematic and discriminatory conduct were the first named applicant to return to Sierra Leone.
The Tribunal is not satisfied that the first named applicant, as a lesbian, could access State protection. There is evidence that the State is responsible for harm on occasion, including arrests. Furthermore, sources suggest that there is no action taken by government authorities to investigate or punish private entities or persons complicit in abuses against lesbian persons, and there is no hate crime law.[51] The Sierra Leone police force is reported to lack training on human rights topics,[52] suffer from a lack of resources[53] and be unable to control large crowds; in addition, impunity remained a significant problem across all of the security forces.[54] The police force is also known to be slow to respond, unreliable and to use excessive force.[55]
[51] United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023.
[52] Global Rights: Partners for Justice, Dignity Association & Pride Equality, ‘Discrimination on the Basis of Sexual Orientation and Gender Identity in Access to Health Care and Violence/Bias – A Sierra Leone Case Study’, 1 January 2018, p.18; US Department of State, ‘Country Reports on Human Rights Practices for 2020 – Sierra Leone’, 30 March 2021.
[53] Overseas Security Advisory Council (OSAC), ‘Sierra Leone 2020 Crime & Safety Report’, 4 July 2020, p.5.
[54] US Department of State, ‘Country Reports on Human Rights Practices for 2020 – Sierra Leone’, 30 March 2021, p.2; Amnesty International, ‘Sierra Leone 2020’, 1 January 2021.
[55] OSAC, ‘Sierra Leone 2020 Crime & Safety Report’, 4 July 2020, p.5.
The Tribunal accepts that if the first named applicant were to now return and conceal her sexuality, she would be altering or concealing her sexual orientation, and thereby modifying her behaviour, in a manner that would not be reasonable. Moreover, it accepts that she would be doing so to avoid harm.
The Tribunal finds that there is a real chance that the first named applicant would suffer persecution for reasons of her membership of the particular social group of lesbians in Sierra Leone, if she returns to Sierra Leone, now or in the reasonably foreseeable future.
The Tribunal is satisfied that the first named applicant has a well-founded fear of persecution for reasons of membership of a particular social group of lesbians in 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 than Australia. However, it does not apply in 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,[56] or where there would be a real risk that the non-citizen would suffer significant harm in relation to the country.[57]
[56] s 36(4)(a)
[57] s 36(4)(b)
Sierra Leone is one of the partner 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.[58]
[58] 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 member 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.[59] Further, few ECOWAS member states have adapted their legislation to be in accordance with the 1979 protocol and supplementary protocols.[60]
[59] As above at 3.4
[60] As above at 3.5
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.[61] 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.[62] The reliability and efficiency of passport processing at land border crossings are variable, and rivalry between Francophone and Anglophone countries can occasionally manifest in the rejection of other countries’ documents.[63] DFAT also notes media reports in October 2018 of 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.[64]
[61] As above at 3.19
[62] As above at 2.6
[63] As above at 3.17
[64] 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 of movement for people in the ECOWAS area.[65] 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.[66]
[65] Free Movement of Persons in West Africa Under the Strain of COVID-19, Abdoulaye Hamadou, 2020
[66] ‘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.[67] DFAT further comments that human rights observers report discrimination, marginalisation and abuse of women and girls are highly prevalent across the ECOWAS region, often grounded in cultural traditions and formalised by law. 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 family, women and girls who attempt to flee their community to avoid FGM.[68]
[67] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 2.12
[68] As above at 2.16
Country information indicates that LGBTI issues are taboo across the ECOWAS region, both officially and societally. The DFAT Thematic Report states that The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, Sierra Leone and Togo all criminalise consensual same-sex sexual acts between adults.[69] In northern Nigeria, consensual same-sex sexual acts are punishable under sharia (Islamic law) with the death penalty. Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali and Niger do not criminalise consensual same-sex sexual acts between adults, but do not offer any specific protections. Cabo Verde is the only ECOWAS member state to offer employment protection to LGBTI individuals. LGBTI activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTI in Benin, Ghana and Mali, and prosecutions of LGBTI individuals in Burkina Faso and Cote d’Ivoire seemingly motivated by their sexual orientation, despite the fact that neither country criminalises consensual same-sex sexual acts between adults.[70]
[69] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020 at 3.2.
[70] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020; ILGA, 2019, <>
Given the limitations to freedom of movement between ECOWAS countries, the Tribunal is not satisfied that the applicants currently have the ability to enter and reside in another ECOWAS state. In addition, section 36(4)(a) states that s 36(3) does not apply 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. In light of the Tribunal’s finding above that the first named applicant is a lesbian, and based on the country information referred to above, the Tribunal considers that as a lesbian, the first named applicant has a well-founded fear of persecution for reason of her membership of a particular social group of lesbians in the other ECOWAS countries.
Therefore, the first named 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 first named applicant is a person in respect of whom Australia has protection obligations s 36(2)(a).
The Tribunal was provided with a copy of the second named applicant’s birth certificate naming the first named applicant as her mother. The Tribunal is satisfied on the evidence provided that the second named applicant is the biological child of the first named applicant. The Tribunal is satisfied on the evidence provided that the second named applicant is wholly reliant on the first named applicant for financial, psychological and physical support and is therefore a dependent of the first named applicant for the purposes of this applicant. The Tribunal therefore finds the second named applicant is a member of the first named applicant’s family.
The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a). However, the Tribunal is satisfied that the second named applicant is the biological [child] of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of [that] application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Amanda Goodier
MemberATTACHMENT - 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.
…
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