1820567 (Refugee)

The Tribunal considered the protection visa applications of two applicants, both citizens of Sierra Leone. The first applicant claimed to be a lesbian who feared persecution in Sierra Leone due to her sexual orientation, including past rape and the killing of a friend. The second applicant, the first applicant's child, sought protection as a member of the same family unit. The primary dispute concerned whether Australia had protection obligations towards the applicants under the Migration Act 1958.

The legal issues before the Tribunal were whether the first applicant was a refugee within the meaning of section 36(2)(a) of the Act, or whether she faced significant harm on complementary protection grounds under section 36(2)(aa). Additionally, the Tribunal had to determine if the second applicant qualified for a protection visa as a member of the first applicant's family unit under section 36(2)(b). A further consideration was whether the first applicant could avail herself of protection in another Economic Community of West African States (ECOWAS) country, as per section 36(3) of the Act.

The Tribunal found that the first applicant was a lesbian and accepted her fear of persecution in Sierra Leone, citing widespread discrimination, violence against LGBTIQA+ individuals, and the prevalence of corrective rape. It concluded that she was a member of a particular social group of "lesbians in Sierra Leone" and that the characteristic of being a lesbian was innate and fundamental to her identity. The Tribunal was not satisfied that the first applicant could access effective State protection in Sierra Leone, nor that she could reasonably relocate to another ECOWAS country without facing a well-founded fear of persecution due to her sexual orientation. Consequently, the Tribunal was satisfied that Australia had protection obligations towards the first applicant under section 36(2)(a). The Tribunal also found the second applicant to be a member of the first applicant's family unit, meaning her entitlement to a visa depended on the first applicant's successful application.

The Tribunal remitted the matter for reconsideration, directing that the first named applicant satisfies section 36(2)(a) of the Migration Act, and the second named applicant satisfies section 36(2)(b)(i) on the basis of membership of the same family unit as the first named applicant.