1821246 (Refugee)

1821246 (Refugee) [2024] AATA 2264 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1821246

COUNTRY OF REFERENCE: Sierra Leone
MEMBER:Gabrielle Cullen
DATE:20 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2024 at 7:36pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – particular social group – lesbian – imputed political opinion – comments opposing Female Genital Mutilation – physical assault – detention – gender-based violence by police – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 6 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 is a citizen of Sierra Leone, claims to fear return because she is a lesbian and as she has made comments publicly against Female Genital Mutilation (FGM).
The applicant arrived in Australia on a [temporary] visa [in] March 2018 [details deleted]. She applied for a protection visa on 14 May 2018.
On 28 June 2018 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 6 July 2018. The delegate did not accept based on the applicant’s inconsistent evidence that she is a lesbian who was in a relationship with a woman named [Partner A], that she was attacked when with [Partner A] in Sierra Leone [in] November 2016 or that she is an anti-FGM activist or advocate who publicly campaigned against FGM or that she was verbally threatened and physically assaulted as a result of her anti-FGM work while in Sierra Leone or that she is of ongoing interest to the [Group 1] or anyone else in Sierra Leone.
The applicant applied to the Tribunal on 23 July 2018.
The applicant appeared before the Tribunal on 8 February 2024 to give evidence and present arguments and where relevant the evidence from this hearing appears in this decision. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The issues to be considered in this case are as follows:
·     Is the applicant credible as to her claims?
·     Does the applicant have a well-founded fear of persecution in relation to Sierra Leone and meet the refugee protection provisions of the Act?
·     Does she meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·     Applicant’s protection visa application dated 14 May 2018, identity documents and claims outlined in the attached statement.
·     Oral evidence of the applicant provided at the Department interview on 28 June 2018 and Tribunal hearing held on 8 February 2024.
·     Applicant’s statutory declaration dated 13 December 2023 including country information and reference to other Tribunal decisions as to the treatment of women who identify as lesbian in Sierra Leone. Also referred to is a decision of a woman who had been subjected to FGM where the Tribunal determined the applicant was at risk because of this.
·     Department of Foreign Affairs and Trade (DFAT), Country Thematic Report ECOWAS, 3 December 2020.
·     Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The information indicates the applicant is [an age]-year-old woman from Freetown, Sierra Leone. In her application she indicates she speaks, reads and writes Krio and English but would prefer a Krio interpreter. She claims she is a Christian. Her [specified family members] continue to reside in Freetown, Sierra Leone and she has a [child], born in [year] who is living with her sister in Sierra Leone. She travelled as [an occupation 1] from Sierra Leone to [1][specified African countries] in [specified years]. From around 2009/2010 until she [came to Australia] in 2018 she was an [occupation 1] [working internationally]. She claims her address before departing was [Address 1] and confirmed at hearing this was her address where she lived until she departed in 2018 for Australia.
[1] She has advised that she did not travel to [Country 1] as her application indicated, rather she travelled to [an African country].
The applicant in her statement attached to her protection visa application dated 14 May 2018 claims to fear harm due to persistent harassment and persecution because she is a lesbian and she engaged in exposing FGM, both of which are considered taboo and that she will be killed on her return. She refers to the former difficulties she faced due to her anti-FGM activism and as a lesbian. She claims:
·Soon after her mother passed away[2] her father forcibly initiated her and her sister into the [Group 1] by forcing them to undergo female genital mutilation and she passed out due to the pain from the FGM. She subsequently suffered from several complications.
[2] At hearing she said this was in 2011.
·She then went and lived with her [Relative A], met a girl named [Partner A] and they entered into a relationship. They fell in love as they both shared the same story of forceful initiation into FGM and did not want to have anything to do with men sexually. When the relationship became known to the community she became the enemy of the community as same-sex relations are considered taboo. She faced the following difficulties:
oOn [a day in] November 2016 at around 10pm she was attacked at [Partner A’s] house whilst sleeping. Three young girls came to their home and started insulting them, banging on the door. When they refused to open the door some young boys rushed into the room and started beating them, leaving them bleeding.
o[Later in] November 2016 at around 7pm the same people who attacked her on [the earlier day in] November 2016 came back and took the applicant and [Partner A], forcing them to walk around the community as the attackers sang songs of disgrace around them.
·As a result of this attitude towards her and [Partner A], they joined the ranks of other women who are campaigning to stop FGM. She moved to [Town 1] in response to threats on her life. She subsequently faced the following difficulties:
oOn [a day in] January 2017 she was attacked by armed police officers and community women in [Town 1] whilst meeting with approximately 50 young girls in the community. She was stripped naked, severely beaten and then taken to the police station where she was raped multiple times by station officers resulting in vaginal bleeding. Her feet were tied together in the police station cell and she was only given water for the days she was held and was given no food.
oOn [a day in] October 2017 at around 6pm after moving to a new community at [Town 2] she was approached by a group of women on the way home after she boarded transport travelling from the [venue] where she had been [working]. These women started to intimidate and abuse her for “not being woman enough” and a “coward” for exposing the FGM society and wanted to teach her a lesson. They beat her with truncheons and sticks until she passed out on the side of the road. She was left to die and awoke after 2 days at a friend’s house, [identified], who provided her with medical assistance and food. She hid at this friend’s house for over 2 months only going out at night.
She claims she tried to seek help from the authorities and reported it to police but nothing was done. She claims she moved to 4 communities but received no help and she cannot relocate.
At the Department interview held on 24 June 2018 the applicant reiterated her claim to fear return on account of her relationship with [Partner A] and her sexuality. She said she began a relationship with [Partner A] in approximately 2012/2013 which lasted until November 2016 when [Partner A] fled after they were attacked. She later said that the relationship resumed before she went to Australia in 2018. She said [Partner A] started making advances towards her and she was unsure what was happening but she seemed to like it. She said she would go to her place in [Town 1] on Friday, Saturday or Sunday and would sometimes see her at [work] as she was also [an occupation 1]. She said she concentrated on her [work] during the week and other things. She said she mainly saw [Partner A] during the low season. She said people in [Partner A’s] community became suspicious and it was known within [Partner A’s] community that [Partner A] was a lesbian and she had friends who are like-minded. As to how she knew she liked women and how it made her feel, she responded that she knew because of her experience with [Partner A]. She did not know [Partner A’s] last name. She said she was attacked while at [Partner A’s] house [in] November 2016 when a group of community members knocked on the front door and entered the bedroom and started verbally and physically abusing them. She said a neighbour heard the commotion and called the police and the police escorted [Partner A] and her to the local police station. She said while she was there she explained to the police who she was and that she was an [occupation 1] [working internationally]. She said the police tried to protect her. She said after this incident she did not see [Partner A] but after some time [Partner A] returned to [work] and the relationship continued. She said no other incident took place. She said if she returned she would be arrested at the airport as the people who accused her and [Partner A] are building a case against them and she will not be able to defend herself.
She was asked if she had any further claims on a number of occasions and said she was not circumcised and she fears being pursued by members of a secret society to be initiated. She said her father was part of the secret society and wanted her to be initiated however she would always hide when he wanted her to go to initiation and consequently she was never initiated. She said her father passed away 3 years ago but left strict instructions with the secret society to have her initiated. She stated it was customary for at least one member of the family to be initiated. She said that her sister told her that the secret society is still looking for her and she said it was not [Group 1], it was another secret society, however she could not recall the name of this society. She said if she returned those people from the secret society have ears and they will snatch her to initiate her on return.
She also said she had come from a Muslim family but was now a Christian. She said she had not experienced any issues relating to her change in religion and her family are supportive of this.
She was asked on numerous occasions whether there were any other reasons why she feared returning to her home country which she had not discussed today. At the end of the hearing she was asked whether there is anything else she has not mentioned that she wishes to discuss with regard to her claims and was advised that if that is the case to do so now and she answered in the negative.
The applicant in her statement dated 13 December 2023 reiterated her claim to fear return as follows:
·Due to her actual and perceived sexual orientation as a lesbian or person who is a woman who is not heterosexual and due to her membership of a particular group of homosexuals in Sierra Leone. She refers to previous attacks in Sierra Leone.
·Due to her political and imputed political opinion based on comments made publicly against FGM. She submits if she were to return she would continue to make such comments as she does not support the practice and wants to prevent it from happening. She claims she is concerned she will be harmed by [Group 1] because of these comments.
She submits there were some incorrect statements in her previous statement and interview which occurred for the following reasons:
·She received assistance from [Agency 1] to draft her original application. The draft was prepared quickly as her visa was about to expire. It was prepared without the aid of a translator nor was she given the opportunity to read the prepared draft before it was submitted resulting in some incorrect details being included.
·She was nervous at the Department interview and so struggled to understand some of the questions despite the presence of an interpreter.
She makes the following amendments to her claims:
·She has not publicly campaigned against FGM but has made comments to community members expressing her disagreement with FGM practices. She fears persecution because of these comments.
·She is not being pursued by a secret society for not being circumcised as she was circumcised when she was 4 or 5 years old.
·When the applicant referred to her father wanting her to be initiated into the [Group 1] this did not refer to circumcision but rather to her being able to perform the circumcision procedure on other girls so that the family could receive gifts.
·She was not attacked on 3 separate occasions, on [the day in] November 2016, [in] January 2017 or [October] 2017, on the basis of her sexuality as previously advised, rather only on one occasion which occurred at some point in 2016 or 2017.
·She did not travel to [Country 1] [for work] as [an occupation 1] rather she meant to state [an African country] as she has only travelled to [occupation 1 assignments] within Africa.
She makes the following claims as to her sexuality:
·She identifies as a lesbian.
·Prior to meeting [Partner A] she had relationships with men however her experiences in these relationships were quite negative such as the relationship with her child’s father, [Partner B], to whom she was previously engaged. These relationships prompted her to explore relationships with women and she no longer wants to have relationships with men.
·She met [Partner B] when she was [age], she came from a poor family and he was wealthy and spent money on her. He was much older than her. He convinced her to leave school. She moved to his house and he had adult children who would beat her and take the money [Partner B] had given her. [Partner B] did not protect her and he physically attacked her from time to time. Around 2011 she decided to leave him and the relationship and moved to live with her sister and [child].
·Her father physically abused her which added to her negative experience with men. He would discipline her with belts, canes and whips and would tie her hands and feet when he did this.
·After these negative interactions she did not want to be in a relationship with men.
·She first began to identify as a lesbian in 2016 after she began [occupation 1 work] with [Partner A]. She and [Partner A] [worked] together, she was supportive and it felt very different to any relationship she had with men as [Partner A] made her feel important and secure.
·[Partner A’s] last name is [name] and she only recently discovered this from her sister who is occasionally in contact with [Partner A] which is why she did not provide it at the Department interview. She maintains that she never asked for [Partner A’s] last name during their relationship.
·[Partner A] now lives in a remote village in the north of Sierra Leone approximately 3 to 4 hours from Freetown. [Partner A] lives there because of the difficulties she faced as a lesbian in the city. She claims that it is difficult to contact her as the telephone connection is not strong where [Partner A] is.
·She has told her family about her relationship with [Partner A] and other people in the community have seen her with [Partner A] and know about the nature of their relationship.
·They were attacked in 2016 or 2017 while asleep in [Partner A’s] house. They were woken by 3 young girls who started banging on the door, yelling at them and insulting them about their same-sex relationship. The broke down the door and started beating them. The next day they came back in the morning and made them walk around the community as they sang songs of disgrace about them and their relationship. A fight broke out, and the police came and took her and [Partner A] forcibly to the police station. At the police station a big crowd of community members formed. The police kept them behind the counter and they tried to disperse the crowd. The police kept them for 2 days as they were concerned that a fight might break out. While there the police did not provide them with food, water or a phone to call someone. Their [manager 1], [Mr A], came to the police station and spoke to the police, who released them. The police told the applicant to stay away from [Partner A]. She claims she has asked the police for a report of this event but they did not have one.
·She previously had a relationship with a woman named [Partner C] in Australia whom she met whilst working at [Employer 1] however she does not know her last name. She lived with [Partner C] for 4 months during which time she met her friends and family. [Partner C] ended the relationship and moved out. She has tried to contact her but has not received a response. She has her number if the Tribunal needs to contact her.
As to anti-FGM comments she has made, she said she made these to the community when a girl was paraded through the village on the way to being circumcised. Since living in Australia, the applicant has made further statements to family members and friends back in Sierra Leone that FGM is wrong. She claims that if returned she will be fined by the [Group 1] or forced to conduct the FGM procedure on other girls and women due to her anti-FGM comments.
The applicant claims she did not attempt to leave Sierra Leone prior to coming to Australia for [an occupation 1 assignment] as she was not aware of the possibility of seeking asylum or given the opportunity to permanently leave the country. She applied for the visa with the help of [Agency 1] who aided her to fill in the application. She did not come with the intention of staying in Australia but she met a woman at [a city location] who took her to her house and when she told her about how stressed she was at returning, this was the first time she became aware of the possibility to apply for asylum in Australia. This woman took her to [Agency 1] where they helped her apply for a visa.
She claims she did not apply for asylum in other countries visited, as she was only in those countries for a couple of days and did not consider it safe to apply for asylum as a lesbian woman.
She claims she will face severe stigma and discrimination and be seriously harmed if she returns to Sierra Leone as she is a lesbian. She refers to her past harm and claims she fears she will be subjected to assaults and physical violence from members of the general public. She also fears harm on return from [Group 1] because of comments she has made against FGM. She refers to being fearful of being taken to the bush and having to perform the procedure on other girls.

At the Tribunal hearing held on 8 February 2024 the applicant reiterated her claim to fear return as she is a lesbian. She said she began a relationship with [Partner A] soon after [Partner A] joined [workplace] in 2014/2015, about 3 months after they met, and the intimate relationship ended in 2016 when they were arrested by police. She said they remained friends after that. When asked when she became attracted to women or had feelings for women, she said and confirmed she had not been attracted to women until she met [Partner A]. She said she had never thought about it until [Partner A] made moves on her and she started going to [Partner A’s] house to be intimate. She said she has not had another relationship with a woman since [Partner A] and has not been attracted to any women since then, either in Sierra Leone or Australia. She said [Partner A] is the only person she has had a relationship with or been attracted to.
She said after she was released from the police station in 2016 and ceased her relationship with [Partner A] she did not face any further difficulties. When asked what difficulties she would face on return, she said people will come to realise she is there and they will raise concerns that she has been in a relationship with a woman and they will inform the police who will grab her and prosecute her.
When asked if she fears return for any other reasons on a number of occasions she referred to her anti-FGM comments. She said if she returns the groups will come to know she has returned and they will come for her. The Tribunal repeatedly asked her what anti-FGM comments she had made; she said when the girls were being forcibly taken she brought people together to advocate. When asked on numerous occasions for detail she said she would grumble and tell people her views. The Tribunal asked her about any bans against FGM that had taken place in Sierra Leone, the names of any organisations advocating against FGM, whether she was affiliated with any organisation and whether she had undertaken any activity in Australia advocating against FGM in Sierra Leone or elsewhere.
The Tribunal raised a number of concerns as to the credibility of the applicant’s claims, including numerous inconsistencies and where relevant these have been outlined below. It also raised information via s 424AA as to her claim of interpretation affecting her ability to express herself at the Department interview. It questioned whether she was ever in a relationship with [Partner A] and/or with anyone in Australia, whether she identifies as a lesbian, had ever or would on return identify as a lesbian or non-heterosexual and had faced any of the difficulties she claims because of her relationships, sexuality and for advocating or making comments against FGM or for any of the reasons she claims. Where relevant these concerns have been outlined below.
Is the applicant credible as to her claims?
Having sighted a copy of the applicant’s identity documents, and on the basis of her evidence at hearing, the Tribunal accepts that the applicant is a national of Sierra Leone for the purposes of s 36(2)(a) of the Act. For the purposes of s 36(2)(aa) the Tribunal accepts that Sierra Leone is the receiving country.
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding central aspects of the applicant’s claims and evidence, which it does not accept are true, there are other aspects of her claimed circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts that the applicant was an [occupation 1] who [worked internationally] on numerous occasions as claimed, including [in Country 2] in April 2017 and [in] 2018 [in Australia].[3] It also accepts she has a [child of specified age], being cared for by her younger sister together with [specified family members], who she supports and who live in Freetown.
[3] [Details deleted.]
Notwithstanding the above, for the reasons that follow, the Tribunal does not accept that the applicant is a credible witness as to her claims and fears return for the reasons she claims. It follows the Tribunal does not accept the applicant was ever involved in a lesbian relationship in Sierra Leone or Australia, identifies as a lesbian or non-heterosexual and faced any of the difficulties she claims because of her claimed sexuality and lesbian relationship. It follows it does not accept she fears return on this basis. For the reasons outlined below, the Tribunal does not accept she has ever been involved in making comments or advocating against FGM either in Sierra Leone or Australia and faced any of the difficulties she claims as a result and fears being pursued by any secret society or [Group 1] or anyone else in Sierra Leone. It finds her testimony to be inconsistent as to these claims and is of the view that she has fabricated claims and concocted evidence to achieve an immigration outcome.
Sexuality
Relationship with [Partner A] and difficulties faced
Central to the applicant’s claims as to why she fears return is that she is a lesbian and identifies as a lesbian, and will return to Sierra Leone as a lesbian or a woman who is not heterosexual. She has repeatedly referred to a same-sex or lesbian relationship with [Partner A] in Sierra Leone as evidence of this claim and also referred to a relationship with [Partner C] in Australia in her December 2023 statement. When asked about why she believes she is a lesbian at both the Department interview and Tribunal hearings she has repeatedly referred to her feelings and relationship with [Partner A]. At hearing she said she had never been attracted to women before or after her relationship with [Partner A].
For the reasons that follow, the Tribunal does not accept that she was ever involved in a relationship with [Partner A], faced any difficulties as a result or was ever in a relationship with [Partner C] in Australia. This adds to the finding she has never identified as a lesbian, and does not do so currently. It adds to the finding she is not a credible witness as to this claim.
Firstly, despite her claim of an intimate same-sex relationship with [Partner A] she has provided the following inconsistent evidence throughout the process about this relationship. This leads the Tribunal to find she has never been in an intimate or lesbian relationship with [Partner A] as claimed:
·As to when the relationship began, where they met and why she entered into a lesbian relationship with [Partner A], she has provided the following inconsistent evidence:
oIn her statement attached to her protection visa application she said she was circumcised shortly after her mother died in 2011.[4] As a result of the pain suffered she went and lived with her [Relative A], who looked after her. She claimed while living [there] she became interested in a relationship with [Partner A]. She claimed they were in love as they both shared the same story of forceful initiation into FGM.
[4] She gave evidence her mother died around 2011 at the Tribunal hearing.
oIn contrast, at the Department interview she said she met [Partner A] at [work] in 2009, as she was a fellow [occupation 1], and they began an intimate relationship in 2012/2013. She said [Partner A] started to make advances towards her and at first she was unsure as to what was happening but felt it was nice. She said [Partner A] had had previous relationships with women.
oIn her December 2023 statement she said she first began to identify as a lesbian after she began [occupation 1 work] with [Partner A] in 2016. She said the relationship was different than with men which had been full of violence and [Partner A] made her feel important. She said she had had negative relationships with men and referred to a violent relationship with her former partner and father, and as a result she did not want to be in a relationship with a man.
oAt the Tribunal hearing she also referred to her negative relationships with men prior to meeting [Partner A]. However, she said she first met [Partner A] in 2014/2015 as she was also [an occupation 1]. She said initially they were friends but around 3 months later [Partner A] made moves towards her and they became intimate and she became attracted to her.
When the Tribunal raised with her at the Tribunal hearing the above inconsistencies, including as to when they met, how they met and why she became attracted to [Partner A], and that it may lead it to find she did not have a lesbian relationship with [Partner A], was and is not a lesbian and that it may lead the Tribunal to find she is not credible as to her claims, she did explain the inconsistency.
In her December 2023 statement she provided the following reasons for all the incorrect statements in her previous statement and interview:
oShe received assistance from [Agency 1] to draft her original application. The draft was prepared quickly as her visa was about to expire. It was prepared without the aid of a translator nor was she given the opportunity to read the prepared draft before it was submitted resulting in some incorrect details being included.
oShe was nervous at the Department interview and so struggled to understand some of the questions despite the presence of an interpreter.
These have been dealt with under a subheading below and rejected as reasons for the inconsistencies she referred to or for any of the inconsistencies outlined by the Tribunal in this instant or below with regard to her original statement and Department interview. While it accepts the applicant may have been nervous at the Department interview, it does not accept this explains the significant inconsistencies as to her relationship above, especially as she was able to give evidence consistently and in detail as to her [occupation 1 work]. The Tribunal is of the view if the applicant had had a relationship with [Partner A] she would be able to provide consistent evidence as to these aspects of the relationship despite being nervous at the interview.
This adds to the finding she was never in an intimate relationship as a lesbian with [Partner A] in Sierra Leone. It adds to the finding she is not a credible witness as to these claims.
·As to how the relationship ended and when she provided the following inconsistent evidence:
oAt the Department interview she said after the attack in November 2016 [Partner A] immediately travelled to some relatives in [Town 3] and the relationship ceased, although later she said she returned and they began seeing each other again before she went to [Australia].
oIn her December 2023 statement she said she stopped seeing her when she returned from a [job] in [Country 2] due to [work] pressures. At hearing she confirmed she travelled to [Country 2] [for a specified project] and information, as raised with her at hearing, indicates this was held in April 2017.
oAt hearing she said she stopped seeing [Partner A] intimately after the attack in 2016/2017. She said after this they then just became friends with no intimacy until she departed in 2018 for the [job in Australia].
When the Tribunal raised with her the inconsistencies as to when and how the relationship ended, she responded that the relationship still continues as [Partner A] is staying in her father’s house in [Town 3].
The Tribunal has considered below and rejected the reasons for the inconsistencies between her statement in the application, Department interview and December 2023 statement as referred to in that December 2023 statement. While it accepts the applicant may have been nervous at the Department interview, it does not accept this explains the significant inconsistencies as to her relationship ending and the circumstances as to why it ended, especially as she was able to give evidence consistently and in detail as to her [occupation 1 work]. The Tribunal is of the view if the applicant had had a relationship with [Partner A] she would be able to provide consistent evidence as to approximately when it ended and the circumstances that led to it ending despite being nervous at hearing.
This adds to the finding she was never in an intimate relationship as a lesbian with [Partner A] in Sierra Leone. It adds to the finding she is not a credible witness as to these claims.
The above inconsistencies lead to the finding the applicant did not have any lesbian relationship with a woman called [Partner A] in Sierra Leone. It adds to the finding she is not a credible witness as to these claims.
Difficulties faced in Sierra Leone as a lesbian
Further, central to her claim as to why she fears return are the difficulties she faced in her relationship with [Partner A]. However, she has provided inconsistent evidence as to the difficulties she faced while in the relationship with [Partner A] in Sierra Leone as she was identified as a lesbian, the police response and what will happen to her on return as follows:
·In her statement attached to the protection visa application she claimed that when the relationship became known to the community she became the enemy of the community as same-sex relations are considered taboo. She claimed she faced the following difficulties:
oOn [a day in] November 2016 at around 10pm she was attacked at [Partner A’s] house whilst sleeping. Three young girls came to their home and started insulting them, banging on the door. When they refused to open the door some young boys rushed into the room and started beating them, leaving them bleeding.
o[Later in] November 2016 at around 7pm, the same people who attacked her on [the day in] November 2016 came back and took the applicant and [Partner A], forcing them to walk around the community as the attackers sang songs of disgrace around them.
oShe also refers to attacks [in] January 2017 and [October] 2017 but these appear to mainly be associated with her anti-FGM advocacy although in her December 2023 statement she said she did not face these claimed attacks.
oShe said she will be harmed because of her way of life as a lesbian and the authorities cannot protect her, rather they will kill her on return.
·At her Department interview while she also referred to being attacked on [the day in] November 2016, she said there were no other attacks. She said that when she was with [Partner A] one night some people came and knocked on the door, pushed the door and broke the door and rushed in. She said they shouted and beat them and when neighbours heard the shouting and distress they called the police. She said that night, the police tried to protect them while investigating what happened, took them to the police station and as she said she was [preparing] for [overseas work], they let her go. She said on return she fears people will come to realise she is there and they will raise concerns that she has been in a relationship with a woman and they will inform the police who will grab her. She did not refer to any other attacks.
·In her December 2023 statement she provided a different version as to the difficulties faced. She claimed they were attacked in 2016 or 2017 while asleep in [Partner A’s] house when they were woken by 3 young girls who started banging on the door, yelling at them and insulting them about their same-sex relationship. She claimed that they broke down the door and started beating them and the next day they came back in the morning and made them walk around the community as they sang songs of disgrace about them and their relationship. She claimed a fight broke out, the police came and took her and [Partner A] forcibly to the police station and at the police station a big crowd of community members formed. She claimed the police kept them behind the counter and they tried to disperse the crowd, but they were kept for 2 days as they were concerned that a fight might break out. The police did not provide them with food, water or a phone to call someone. Eventually their [manager 1], [Mr A], came to the police station and spoke to the police, who released them. She claimed she fears on return she will be subjected to assaults and physical violence from the general public and she cannot rely on the authorities to protect her.
In this statement she claimed she was not attacked on 3 separate occasions on the basis of her sexuality as previously advised on [a day in] November 2016, [in] January 2017 and [in] October 2017, rather only on one occasion which occurred at some point in 2016 or 2017 and gave reasons for the inconsistencies which the Tribunal has considered below.
·At the Tribunal hearing she provided different evidence as to the difficulties she faced as a result of her relationship with [Partner A]. She said that around 2016 the police came to [Partner A’s] house when they were there together. She said there was a crowd of people behind them. She said they were arrested and taken to the police station where they were held behind the counter for 2 days until their [manager 1] came and had them released. She said her [manager 1] told the police that she was [an occupation 1] [working internationally]. She said they were not held in a cell and not charged. She said she fears that when she returns people will come to realise she is there and they will raise concerns that she has been in a relationship with a woman and they will inform the police who will grab her and prosecute her.
When the Tribunal raised with her at hearing the above inconsistencies as to the difficulties faced, police response, what and who she fears on return and that it may lead it to find she did not face the difficulties she claims, and that she is not credible as to these claims, she said she had difficulty explaining herself. The Tribunal does not accept this as an explanation for the significant inconsistencies as to what happened to her.
As considered more fully below, in her December 2023 statement she provided reasons for some incorrect statements in her previous statement and at interview including the way her application for the visa was prepared and that she was nervous at the interview and struggled to understand the interpreter. These have been dealt with below and rejected as reasons for the inconsistencies. While it accepts the applicant may have been nervous, it does not accept this explains the significant inconsistencies as outlined above as to the difficulties faced. It is of the view that even if nervous she would have been able to provide a consistent account as to what happened to her in Sierra Leone.
The above inconsistencies lead to the finding the applicant did not face any of the difficulties she claims in Sierra Leone due to her relationship with [Partner A] or because she was identified as a lesbian or non-heterosexual. It adds to the finding she is not a credible witness as to these claims.
Relationship with [Partner C] in Australia
The applicant has provided inconsistent evidence as to a relationship with [Partner C] in Australia. In her December 2023 statement she said she previously had a relationship with a woman named [Partner C] in Australia whom she met whilst working at [Employer 1]. She claimed she lived with [Partner C] for 4 months during which time she met her friends and family. However, at the Tribunal hearing the applicant indicated [Partner A] was the only lesbian relationship she had ever had, and she had not been attracted to any woman before the relationship with [Partner A] or after. When the Tribunal raised the inconsistency she said the relationship with [Partner C] was a friendship, she lived with her for 4 months but it was not intimate. She said she came to realise she did not want to have an intimate relationship with her. The Tribunal does not accept this response as explaining why if they were just friends and she was not attracted to her or intimate with her she referred to this relationship in her December 2023 statement under the heading “My Sexuality”. The Tribunal does not accept her explanation for the inconsistency. This leads the Tribunal to find she has not had a lesbian relationship with a woman called [Partner C] in Australia. This inconsistency adds to the finding she is not a credible witness as to these claims including her claim to be and identify as a lesbian.
Findings on sexuality

For all the reasons above the Tribunal does not accept the applicant has been credible as to these claims and has found that the applicant did not have a lesbian, non-heterosexual or intimate relationship with [Partner A] in Sierra Leone or face any of the difficulties she claims as a result. It rejects her claims and the difficulties she faced in their entirety based on its findings above. It therefore follows it does not accept she was ever identified as a lesbian or non-heterosexual by the community, authorities and police or anyone else in Sierra Leone and was not beaten, raped, harmed, arrested, incarcerated, shamed, threatened or suffered brutality, hid or relocated to avoid harm due to the same-sex relationship with [Partner A] or as she is or was perceived as a lesbian or non-heterosexual woman. It follows it does not accept she was ever of adverse attention to the community, police, authorities or anyone else in Sierra Leone at the time of her departure for Australia in 2018 as she was or is or was perceived to be a lesbian, non-heterosexual woman or because she was in a same-sex, lesbian or non-heterosexual relationship with [Partner A] or anyone else in Sierra Leone.
The Tribunal does not accept she ever had a relationship with [Partner A]. She said at hearing that she was not attracted to women before her relationship with [Partner A] and has not been since. She was asked whether, apart from the relationship with [Partner A] she had ever had feelings or a flutter for a woman and she answered in the negative.
While the Tribunal may understand her not pursuing relationships with women in Sierra Leone based on a fear of harm on return if it were to accept she is a lesbian, it has difficulty accepting why she has not been attracted to, been involved in or had feelings for any women in the last 6 years in Australia, as was her evidence at hearing. This is particularly so as she agreed she is safe and free to do so in Australia. When the concern was raised she said she did not want to complicate her life and referred to having to care for her family. The Tribunal does not accept this as a reason for not even feeling attracted to a woman.
As the Tribunal has found the applicant has not been a credible witness as to these claims, that the applicant did not have a relationship with [Partner A], and it is her claim at hearing that this is the only intimate relationship she has ever had and the only time she has been attracted to or had feelings for a woman, and as the Tribunal does not accept she had a same-sex or intimate relationship with [Partner C] or anyone in Australia including in the 6 years she has been in Australia where she knows it is safe and she is free to do so, the Tribunal does not accept that the applicant was ever, is currently or will identify as a lesbian or non-heterosexual on return or be perceived as a lesbian or non-heterosexual person. It does not accept she will pursue a same-sex relationship on return to Sierra Leone or a fear of harm would prevent her from doing so.
Circumcision, fear of secret society and anti-FGM comments and advocacy
Central to the applicant’s claim is a fear on return of those promoting FGM, including members of a secret society and/or the [Group 1] as she is opposed to FGM. However she has provided the following inconsistent evidence as to why she fears return from these groups and people, including whether or not she is circumcised and the difficulties she has faced. These significant inconsistencies lead to the finding she has not been involved in advocating for or commenting against or joined together with any organisation advocating against FGM in Sierra Leone. It leads to the finding she has never been of any interest to any secret society or [Group 1] for the reasons she claims. It adds to the finding she is not a credible witness as to these claims.
She has provided the following inconsistent evidence as to her involvement in advocating and comments made against FGM, the difficulties she faced and why she will face difficulties from those supporting, conducting and promoting FGM:
·In her statement attached to her protection visa application she claims after the attack in November 2016 when with [Partner A], she joined the ranks of other women who were campaigning to stop FGM and had a meeting with about 50 girls in the community. She refers to the unbearable pain she underwent in her circumcision soon after her mother died, which she said was in 2011, when she was [an adult]. She refers to being attacked on 2 occasions in part due to her advocacy, by police and women from the community, including [in] January 2017 and [in] October 2017. The specific details of these attacks are outlined above. She claims to fear return because of her actions exposing FGM society and practices, as well as working with organisations that are against FGM.
·At the Department interview she did not refer to fearing return as she has made comments against FGM or being an advocate against FGM. This was despite being asked on numerous occasions whether there were any other reasons why she feared returning to her home country which she had not discussed today. Further, at the end of the hearing she was asked whether there is anything else she has not mentioned that she wishes to discuss with regard to her claims and was advised that if that is the case to do so now and she answered in the negative. In contrast to her application she referred to fearing being forcibly initiated on return as she had not been circumcised. She claimed that as she is not circumcised she fears a secret society who want to harm her on return. She said this is not the [Group 1]. She said her father died 3 years before the interview and before that he would come looking for her to have her initiated but she would always hide. She said her sister advised her that they came looking for her in 2016 but she was [working] in [Country 3] at the time. She said she fears return as those people in a secret society have ears and if she returns they will snatch her and have her initiated.
·In her December 2023 statement she provided different evidence and gave reasons for the inconsistencies which are discussed below. She claimed:
oShe has not publicly campaigned against FGM but has made comments to community members expressing her disagreement with FGM practices. She fears persecution because of these comments.
oShe is not being pursued by a secret society for not being circumcised as she was circumcised when she was 4 or 5 years old.
oWhen she referred to her father wanting her to be initiated this did not refer to circumcision but rather to her being able to perform the circumcision procedure on other girls so that the family could receive gifts, grain and other things, but she did not want to as she does not agree with FGM. She claimed she is not currently being pursued by the [Group 1] but she is worried if she returns they would want her to be a member.
oShe was not attacked on 3 separate occasions, on [the day in] November 2016, [in] January 2017 or [October] 2017, on the basis of her sexuality as previously advised, rather only on one occasion which occurred at some point in 2016 or 2017.
oShe claimed she made anti-FGM comments to the community at times when a girl was paraded through the village on the way to being circumcised. She claimed since living in Australia, she has made further statements to family members and friends back in Sierra Leone that FGM is wrong. She claims that if she returns she will be fined by the [Group 1] or forced to conduct the FGM procedure on other girls and women due to her anti-FGM comments.
·At the Tribunal hearing she said she fears harm on return from the [Group 1] as she was advocating against them by making anti-FGM comments when they would capture innocent children for circumcision and she would do this in her home village of [Town 3]. She was unsure of the dates when she would speak against it. When asked for more detail including when, where and how she opposed FGM and exposed it, she referred to telling people and grumbling to people as the girls were being paraded. She said she cannot sit still about it. She said she had never been part of an organisation advocating against FGM in Sierra Leone and could not remember the name of one. She said she had not undertaken any activities in Australia. She had no idea whether the government had ever initiated bans in Sierra Leone. She also indicated she had been circumcised when young.
The applicant has provided the following reasons for the inconsistencies as to her anti-FGM comments and advocacy, whether she is circumcised and why she will be harmed by a secret society or [Group 1], which the Tribunal does not accept explains them:
·At hearing when the Tribunal raised the above inconsistencies she did not explain or give any reason for the inconsistencies rather referring to being safe now.
·She explained in her December 2023 statement that the inconsistencies arose as a result of the way her application for the visa was prepared and that she was nervous at the interview and struggled to understand the interpreter. These have been considered and rejected below. While it accepts she may have been nervous at the interview it does not accept nervousness explains the significant inconsistencies outlined above as it is of the view even if nervous she could provide consistent evidence on what she did in Sierra Leone to advocate against FGM, whether she made any comments or did any advocacy, difficulties faced and the other matters outlined above.
·In her December 2023 statement she claimed she meant by initiated that her father wanted her to become a member of that society so she could perform circumcision, because conducting that procedure ensures money, grains and goats from families and gifts which would help her support the family. However, when raised at the Tribunal hearing what the term ‘initiation’ means she said circumcision. The Tribunal therefore does not accept that she meant something other than her being circumcised when the term initiation was used by her at the Department interview and it does not accept that she meant her being forced to conduct the procedure.
Further, as raised with her at hearing, her behaviour of living at home and [working] up until her time of departure and walking to the [work site] twice a day for 30 minutes, undermines her claim she departed in fear or was of any interest to anyone for these reasons prior to her departure for Australia in 2018.
Further, despite claiming to be opposed to FGM and being an advocate against it or having commented against it in Sierra Leone, her evidence was lacking in detail as to when, where and how she made these comments. This further undermines her claim she has spoken against FGM in Sierra Leone. The Tribunal also views her lack of raising that she had made comments against FGM at the Department interview as significant and is of the view if she did advocate against FGM in Sierra Leone she would have commented upon it at the Department interview particularly after the delegate repeatedly asked her if there is anything further she wished to add.
While not solely determinative, she further was not aware of the numerous groups advocating against FGM in Sierra Leone,[5] and although at hearing she said she was not affiliated with any anti-FGM organisation, the Tribunal may expect if opposed to it, and having commented against it in Sierra Leone and Australia she would be aware of at least one of the numerous groups that are advocating against it in Sierra Leone.
[5] A 2014 report refers to 37 organisations against it and a coalition of organisations participating in joint meetings with the chair being Rugiatu Turay of the Amazonian Initiative Movement (AIM), recent participants include the Department for International Development (DfID), Advocacy Movement Network (AMNet), NaMEP, SHADE, CIP, WAVES, ACT-SL, Graceland and the Taia Development Programme (TDP). ‘Country Profile: FGM in Sierra Leone’, 28 Too Many, June 2014, p.55, CIS28825 Other organisation include Purposeful Sierra Leone, Uncut Gems Sierra Leone, Girl2Girl Empowerment Movement, Women in Crisis Movement, SAGE, Forum Against harmful Practices
Further, the Tribunal is of the view if she was involved in advocating or commenting against FGM or commenting against it previously and would do so on return, she would continue to be active making comments while living in Australia as well as following developments. Her evidence at hearing is she had not been involved in commenting or advocating while in Australia and was unaware of developments in Sierra Leone regarding the issue, such as a ban around the time of the March 2018 election. The Tribunal views this as undermining the applicant’s claim that she holds any belief or political opinion against FGM, and made comments or has advocated against it. The Tribunal is of the view if she held this belief and will comment and advocate on return she would have done so in Australia where it is safe to do so, expressing her opinion and being involved in activities or seeking knowledge.
For all these reasons, the Tribunal therefore does not accept the applicant is credible as to her claims regarding having made comments against FGM, either by joining groups and publicly advocating, or commenting against FGM in Sierra Leone or Australia to anyone including the community or her family. It does not accept she was ever sought by her father or any secret society as she has not been initiated or circumcised or sought-after by the [Group 1] or anyone else as they want her to conduct the procedure. It does not accept she is credible as to having faced any of the difficulties she claims as a result of her comments and advocacy exposing FGM or from her father, secret society, community and [Group 1], the police or the authorities in Sierra Leone. It follows it does not accept she was ever attacked, harmed, beaten, arrested, raped, shamed, fined, threatened, hid or relocated to avoid harm from members of a secret society or [Group 1] or members of the community. It follows it does not accept she was of any adverse interest to anyone at the time she departed Sierra Leone for Australia as a result of any of her claimed reasons associated with FGM. It rejects her claims to fear return based on what happened to her in Sierra Leone for these reasons in their entirety.
As she has not been involved in the issue in Australia, or followed developments and the Tribunal has rejected she has ever commented or advocated against it either in Sierra Leone or Australia, it follows it does not accept that were she to return she will comment against it, advocate against it, join any organisation or be required to be involved in any initiation in any role, including being forced to conduct the procedure or be circumcised.
Reasons for the inconsistencies as outlined in the December 2023 statement
In making all the above findings the Tribunal has considered the general reasons raised by the applicant in her December 2023 statement to explain the incorrect statements in her original application and Department interview.
Firstly, she has indicated that she only received assistance from [Agency 1] to draft her original application. She said the draft was prepared quickly as her visa was about to expire, it was prepared without the aid of a translator nor was she given the opportunity to read the prepared draft before it was submitted resulting in some incorrect details being included. However, at hearing she indicated that she first went to [Agency 1] and then to [Agency 2] who helped her prepare her application and statement which were read back to her with the use of a TIS interpreter. In her application she also indicated that she was assisted by [Agency 2] with her application. The Tribunal therefore does not accept her claim that the reasons for the inconsistencies in that statement and between her later evidence are that the draft was prepared by [Agency 1] without the aid of a translator and she was not given the opportunity to read the prepared draft before it was submitted. While it accepts it may have had to be prepared quickly, it is of the view that despite this, she was given assistance by [Agency 2] and an interpreter who read back her statement and therefore was able to provide an accurate account. It does not accept as claimed this is the reason some details in her original application and statement were miscommunicated and some are incorrect. It therefore does not accept this as an explanation for the relevant inconsistencies, as outlined above.
Secondly, she claims she was nervous at the Department interview and so struggled to fully understand some of the questions despite the presence of an interpreter. She claimed that as a result she was not able to fully express herself at the time. However, at the Tribunal hearing she indicated that she had been able to understand the interpreter at the Department interview. As raised with her via s 424AA the Tribunal has listened to a recording of the interview and is of the view on the basis of her responses to the questions asked that she was able to express herself. It does not accept that her responses indicate her claim that due to nerves, she struggled to fully understand the questions and express herself. The Tribunal does not accept this as an explanation of the relevant inconsistencies as outlined above.
Does the applicant have a well-founded fear of persecution in relation to Sierra Leone and meet the refugee protection provisions of the Act, and does she meet the protection obligations under the complementary protection provisions of the Act?
Sexuality
Based on its findings as to the applicant’s credibility and findings of fact as to this claim outlined in the paragraphs above the Tribunal has found that the applicant was not and never has been involved with any woman in an intimate or lesbian relationship and has never been or perceived to have been identified as a lesbian or non-heterosexual person, nor would be on return. The Tribunal has rejected in their entirety the difficulties the applicant claims happened to her and [Partner A] in Sierra Leone due to their relationship and as she is or is perceived to be a lesbian. It follows it does not accept that the police, community, any society or anyone else had any interest in the applicant prior to or at the time she left Sierra Leone up to her departure [in] March 2018, for the reasons she claims.
The Tribunal has found for the reasons above that the applicant never identified as a lesbian or non-heterosexual in Sierra Leone and after her arrival in Australia, has not accepted she had an intimate relationship with [Partner C]. It therefore does not accept, as she has not been a lesbian or non-heterosexual in the past or in any female relationship, that she will continue to be involved in such relationships or identify as a lesbian or non-heterosexual in the future. It follows that the Tribunal is not satisfied that the applicant will participate in any lesbian relationships on return or identify as a lesbian or non-heterosexual and will suffer persecution by being prevented from doing so.
It follows were the applicant to return to Sierra Leone that it does not accept she would be threatened, harmed, assaulted, prosecuted, arrested, killed, detained, shamed, humiliated or abused, or be unable to earn a livelihood or suffer any harm were she to return to Sierra Leone as a result of these claims.
It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were she to return to Sierra Leone in the reasonably foreseeable future as she is or is imputed to be a lesbian or non-heterosexual or identifies as such or as a result of any claimed relationship she has had in the past with any woman.

Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on her return to Sierra Leone as she is or is imputed to be a lesbian or non-heterosexual or identifies as such or as a result of any claimed relationship she has had in the past with any woman.
Anti-FGM
Based on its findings as to the applicant’s credibility and findings of fact as to this claim outlined in the paragraphs above, the Tribunal is not satisfied that the applicant has ever been involved in advocating, commenting or grumbling against FGM, or has ever been involved in any organisation advocating or commenting against FGM. It has rejected in its entirety she faced any of the difficulties she claims as a result of being perceived as or commenting or advocating against FGM. It has found she was not of any interest at the time of her departure from the police, community, secret society or [Group 1], authorities or anyone else as a result of any comments or advocacy against FGM. It has found she has not been involved in commenting or advocating in Australia or to family or her community in Sierra Leone, after her arrival to Australia.
As the Tribunal has found that the applicant has not been involved in commenting or advocating against FGM or being part of any organisation that does so, either in Australia or Sierra Leone, it follows that the Tribunal is not satisfied that the applicant will do so on return or will suffer persecution by being prevented from doing so. It therefore does not accept, as she has not been involved in commenting or advocating against FGM in the past or joined an organisation that does so, that she will continue to do so were she to return to Sierra Leone.
It follows were the applicant to return to Sierra Leone that it does not accept she will be threatened, harmed, assaulted, prosecuted, arrested, killed, detained, shamed, humiliated or abused, fined, assaulted, or be unable to earn a livelihood or suffer any harm or any difficulties were she to return to Sierra Leone for these reasons.
It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were she to return to Sierra Leone in the reasonably foreseeable future as she has in the past done so or would grumble or comment or advocate against FGM, is perceived as a person opposed to FGM or as she will join an organisation that is opposed to or advocates against FGM in Sierra Leone.
Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on her return to Sierra Leone as she has done so in the past or would grumble or comment or advocate against FGM, is perceived as a person opposed to FGM or as she will join an organisation that is opposed to or advocates against FGM in Sierra Leone.
Circumcision and fear of return from a secret society or [Group 1]
Based on the findings above as to the lack of credibility of these claims, the Tribunal has rejected in its entirety that the applicant was ever pursued by a secret society or her father to be circumcised or initiated and that her father wanted her to become a member of the society that performs circumcision, and that she has ever been pursued by a secret society or [Group 1], and that if she returns she will be pursued to be a member to conduct circumcision. It has found she was of no interest to any of these groups for these reasons at the time of her departure in 2018. It follows were she to return she will not be snatched to be circumcised or initiated or be forced to become a member of [Group 1] or any other secret society or fined, or harmed, or killed or face any of the difficulties she claims.
The Tribunal is therefore not satisfied that the applicant faces a real chance of persecution involving serious harm were she to return to Sierra Leone in the reasonably foreseeable future to be forcibly circumcised or to perform circumcision or for any of the associated reasons she claims. Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on her return to Sierra Leone to be forcibly circumcised or to perform circumcision or for any of the associated reasons she claims.
Notwithstanding the above, the Tribunal accepts she has been circumcised, as she was more consistent on this than not. She did not raise any further claims as to fearing return as she has been circumcised other than being forced to join the [Group 1] to perform circumcision, which it has rejected as true above or as it has promoted her to become a lesbian and make anti-FGM comments which the Tribunal has considered above and rejected. The Tribunal is therefore not satisfied that the applicant faces a real chance of persecution involving serious harm were she to return to Sierra Leone in the reasonably foreseeable future as she is returning to Sierra Leone as circumcised. Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on her return to Sierra Leone as she is circumcised.
[Details deleted.]
[Details deleted].[6]
[6] [Sources deleted.]
[Details deleted.]
Conclusion regarding the refugee criterion
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of her being subjected to serious harm in Sierra Leone in the reasonably foreseeable future. On the basis of the above, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if she returns in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Conclusion regarding complementary protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of the applicant being subjected to significant harm in Sierra Leone in the reasonably foreseeable future. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, there is a real risk that she will suffer significant harm as defined in s 36(2A), on the basis of her claims considered individually or cumulatively.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member
APPENDIX – RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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.
…

[2024] AATA 2264

20 February 2024

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