1821422 (Refugee)
[2023] AATA 4540
•31 October 2023
1821422 (Refugee) [2023] AATA 4540 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Rachel Koo
CASE NUMBER: 1821422
COUNTRY OF REFERENCE: Sierra Leone
MEMBER:Jane Marquard
DATE:31 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 31 October 2023 at 9:26am
CATCHWORDS
REFUFEE – protection visa – Sierra Leone – particular social group – lesbian – physical assault – violent death of a partner – fear of detention – Economic Community of West African States (ECOWAS) entry and residence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 91, 425, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 47
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CSO15 v MIBP (2018) 260 FCR 134
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
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 Wu Shan Liang & Ors (1996) 185 CLR 259
Ram v MIEA & Anor (1995) 57 FCR 565
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
Suntharajah v MIMA [2001] FCA 1391
SZLVZ v MIAC [2008] FCA 1816
SZTEQ v MIBP (2015) 229 FCR 497
SZTOX v MIBP [2015] FCAFC 77
V856/00A v MIMA (2001) 114 FCR 40
WAGH v MIMIA (2003) 131 FCR 269Any 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 20 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is [an age]-year-old woman from Sierra Leone.
She first arrived in Australia on a [temporary] visa [in] March 2018. She travelled [to Australia] to attend [an international event].
She applied for the visa on 11 May 2018. She sought protection on the basis of being persecuted in Sierra Leone as a lesbian.
The delegate of the Department of Home Affairs (the Department) refused to grant the visa because the delegate was not satisfied that the applicant was a lesbian or had suffered any harm in Sierra Leone as a consequence of her sexual orientation.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in the Attachment to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[5] or
b.qualify for complementary protection (the complementary protection criterion);[6] or
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7]
[5] Section 36(2)(a) of the Act.
[6] Section 36(2)(aa) of the Act.
[7] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).
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–5LA of the Act, which are extracted in the Attachment to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in the Attachment to this decision.
The applicant must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.
EVIDENCE
The Tribunal has considered evidence presented to the Department as well as new evidence and submissions provided to the Tribunal. No hearing was necessary in the matter as the Tribunal was able to determine the matter on the papers pursuant to s 425(2)(a) of the Act.
The following documents were provided to the Department:
·Five photographs of the applicant and her ex-partner.
·Three photographs of the applicant’s injuries.
·Birth certificate issued by the Republic of Sierra Leone.
·[College 1] – [Qualification 1] – issued on [date].
·[School] examination results November/December [year].
·[School] examination results November/December [year].
·Republic of Sierra Leone – social security card.
·Sierra Leone identity card issued [in] 2016.
·Police clearance certificate issued by Sierra Leone Police [in] 2014.
·Republic of Sierra Leone voter ID card.
The applicant provided the following new evidence to the Tribunal:
·Statutory Declaration executed 18 August 2023.
·Selection of further photographs with the applicant’s late partner.
·Selection of further photographs of injuries sustained in the 2017 attack.
·Letter of support from the applicant’s sister [Sister A] dated 19 April 2021 with a copy of her Sierra Leonian national ID card.
·Letter of support from the applicant’s Sierra Leonian friend [Friend A] dated 16 February 2021 with a copy of her Sierra Leonian passport biodata page.
·Letter of support from [Leader A] from the Salvation Army dated 29 January 2021.
·Letter of support from [Mr A], Project Officer from [Agency 1], dated 17 July 2023.
·Letter of support from [Leader B] from the Salvation Army dated 20 August 2023.
·Psychologist’s report from [Agency 1] dated 15 August 2023.
·Photograph and video at the 2022 Mardi Gras parade on 5 March 2022.
·Selection of recent photographs at the 2023 Mardi Gras, Fair Day and Sydney World Pride celebrations, and visits to [Venue 1].
·Email confirmation of attendance at [a named] Conference [in] 2023.
·Screenshots of recent announcement messages from [Mr A], Project Officer from [Agency 1], in the [Agency 1] LGBTQIA+ WhatsApp group of which the applicant is a member.
·Screenshots of recent messages from [Mr A], Project Officer from [Agency 1], regarding LGBTQIA+ group gatherings.
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate references to information that the Tribunal has found to be material to the determination of the issues in the case.[8]
[8] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS OF THIS TRIBUNAL
In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
·Whether the incidents described by the applicant took place (findings of fact)
·Whether there is a real chance of serious harm or a real risk of significant harm.
Findings on these and other threshold issues are set out below.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from Sierra Leone issued in 2014 (and which expired in 2019). The Tribunal is satisfied on the basis of her passport and other documents provided, that the applicant is a national of Sierra Leone, and that Sierra Leone is the receiving country for the purposes of the legislation.
Personal particulars and background
The Tribunal accepts the following information about the applicant’s background as provided by her in her application and in evidence to the Tribunal. The evidence has been consistently provided and there is no reason to doubt it.
The applicant was born in [a town in] Freetown in [specified year]. She lived in Freetown until she travelled to Australia [in] March 2018.
The applicant is of Loko ethnicity and the Christian religion.
The applicant’s parents, [and specified family members], reside in Sierra Leone. She also has a daughter, born in [year].
The applicant completed secondary school in Freetown in [year] and then completed a [Qualification 1] at [College 1] in Freetown. She worked as a trader in Freetown and for a short time before coming to Australia, as a domestic servant. In June 2009 she started a petty trading business called [name].
Is the applicant a lesbian as claimed?
Claims made by the applicant to the Department and Department findings
As referred to earlier, the delegate of the Department did not accept the applicant’s claims to be a lesbian.
In her application to the Department, the applicant claimed that in [2003] when she was aged [age], her home was broken into by four men. She claimed that her parents were tied up, and she was raped in front of her family. She went to hospital and her parents reported it to the police, but ‘nothing came of it’. She claimed that she fell pregnant as a result and gave birth to a daughter in [specified month]. She was supported by a women’s group called [Group 1] who ‘gave me hope’. She said that due to the trauma, she ran away with the help of the women’s organisation, and her sister raised her daughter. She claimed that she realised that she was a lesbian in 2003. In her interview with the Department, she said that ‘they rape me in 2003 so I decided not to have anything to do with men’. She claimed that her family understood that she did not want to marry, given the rape that had taken place.
The applicant claimed that she was in a same-sex relationship with a woman called [Partner A] from 2005 for a year, after starting to interact with the lesbian community. She had contacted a woman called [Ms A] ‘who had a shop’ after someone ‘whispered to her’ that she was a lesbian and a leader of the lesbian community. She went to a party organised by [Ms A]. She met [Partner A] there. She said she was happy when this happened. They went to the beach and parties together but later she found [Partner A] cheating on her.
She said in her application that:
As time went on I began to become more and more attracted to women and I started spending more time around them as I felt more comfortable. I also found I could be myself if I dated women. Around August 2006 I went to an outing at [a location in] Freetown It was there I met a lady by the name [Partner B]. We started having a conversation and as time went on I started feeling very attracted to her.
In the course of that conversation I came to find out that she was going through break down with her partner due to her partner's infedility. I sympathised with her and helped her through those difficult times. We quickly became close friends. Around October 2006, we commenced a relationship and began dating. At first we were both frightened about it is as it looked down upon and seen as a taboo in our country. The scary part is if caught, we could be imprisoned for a very long time
She claimed in her application that the relationship with [Partner B] continued from October 2006 to 2017. She confirmed at the interview with the Department that she met her at the [location] in 2006. She found her very attractive and went to talk to her. She said that at first [Partner B] did not want to talk to her as she was afraid to trust her. She told the Tribunal that at first she and [Partner B] became friends and they started dating in October 2006. She said that they were afraid to let people know and just pretended they were friends. Her family thought they were friends. They went to the beach and on walks. The applicant said that her partner lived alone.
She claimed that she and her partner were attacked and beaten in February 2017 after they were caught together. That evening her partner was cooking rice while the applicant was watching a movie. Her partner sat on her lap and was kissing her. A neighbour came in and saw them and was shocked. She claimed that the neighbour called other neighbours and they ‘caused a commotion’ and people came in shouting and beat her up. One had a bottle and smashed it on her arms and legs. She said at the Department interview that her partner was stabbed in the back with a sharp object:
I looked over at my partner and she fell to the ground and lost consciousness. She was covered in blood and I tried to get to her but they pushed me away and started to kick her as she was laying on ground. The neighbour started yelling "you killed her" "she is dead". They, all became alarmed and ran away leaving us bleeding and traumatised. I immediately jumped up and ran to [Partner B] and she started to become conscious again and I told her we needed to go to the hospital.
She said at the Department interview that at the hospital they would not treat them until they went to the police, so they went to the police station but were refused because lesbianism is ‘taboo, forbidden and unacceptable’. She said that her partner was bleeding excessively and was in pain so the applicant picked up first aid kits from the chemist. She said at the Department interview that she asked her partner to go with her to her father’s house, but she did not want to and she wanted to go home. The applicant went to her own house. She said that before she arrived, people had stoned her father’s house and her father later told her she was a disgrace to the family. When she got to his house he had left, and neighbours said that they had gone. She stayed at a neighbour’s house. She said that ‘during the course of our trauma we were in the house of my friend for over three days without coming out for fear of being attacked again because of the constant harassment within the neighbourhood’.
The applicant said that in the morning she went to her partner’s house and was told her partner passed away as a result of the injuries and her family had picked her up. She was told that the family blamed her and were looking for her. She said that she had not met her partner’s family, only a friend called [name]. The applicant claimed that she went into hiding and resided in [Town 1] with a school friend. She told her friend what happened. She said at interview that she stayed there a week and then went to her sister in [Town 2] for three days.
The applicant claimed in her interview with the Department that in November 2017 her friend [Friend B] suggested that she go to Australia for [an international event]. [Details deleted.] She said that [Friend B] told her that there was an opportunity for one or two [people] to go to Australia and she went because of the ‘problem’ she was experiencing.
The delegate of the Department, while noting that the applicant’s evidence was mostly consistent, believed that there was a lack of detail in relation to the relationship with [Partner B]. The delegate was also concerned that the description of the events in February 2017 sounded rehearsed. The delegate was not satisfied that the applicant was attacked or that [Partner B] passed away. and on the basis of this credibility finding, concluded that the applicant was not a lesbian as claimed. The delegate also took into consideration the fact that the applicant left Sierra Leone 12 months after the attack, rather than earlier.
Taking a reasonable approach to credibility assessment
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.[9] 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.
[9] 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.[10]
[10] 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.[11] 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’.[12] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[13]
[11] Fox v Percy (2003) 214 CLR 118.
[12] 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.[14] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[15] 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.
[14] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
[15] 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,[16] 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.[17] A similar approach is taken in the Department’s Refugee Law Guidelines[18] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[19] which provides useful guidance for this Tribunal.
[16] AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, < SZLVZ v MIAC [2008] FCA 1816 at [25].
[18] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017.
[19] UNHCR, re-issued February 2019 at 203–204.
Findings about the applicant’s claims
Significant new written evidence was provided to the Tribunal. After considering this new evidence, in combination with the earlier evidence provided to the Department and taking the reasonable approach to credibility assessment referred to above, the Tribunal is satisfied that the applicant is a lesbian as claimed. The reasons for this are set out below.
Firstly, the Tribunal accepts that the applicant was raped in front of her family in 2003 and that this contributed to her rejection of men and later realisation that she was attracted to women. This evidence was accepted by the delegate of the Department and has been consistently provided. Crime levels are high in Freetown, including armed robbery and burglary.[20] Sexual violence is a significant problem in Sierra Leone.[21] The applicant has described how, as a result of the rape, she gave birth to a child, but felt feelings of rejection, due to the rape, and how her sister looked after the child. In new evidence to the Tribunal, the applicant’s sister corroborated this evidence. She has described returning home from a church event in the aftermath of the rape, as well as taking on the baby after her sister wanted to abandon her. A statement dated 19 April 2021 was provided from the applicant’s sister. She said that in 2003 she went to church for a whole night prayer. When she arrived in the morning, she saw that the front door was broken. She found the applicant lying on the floor and her father told her that thieves had entered and raped her. They rushed her to hospital, and she was admitted and treated. She said that since then their mother had been very sick and up until the current time had not recovered. She said that a few months after the rape the applicant discovered she was pregnant. She wanted to abort the baby but eventually gave birth, although she wanted to abandon the baby. The applicant’s sister decided to care for the baby, and she has raised her until the current time. The applicant has also described how she obtained help from a women’s organisation called [Group 1] that ‘gave her hope’. The website of [Group 1] refers to the organisation as having objectives of gender parity and working at the grassroots level with various organisations.[22] It is possible therefore that she received assistance from [Group 1]. The applicant has explained that after the rape, she did not want to have anything to do with men. It is reasonable that such a violent sexual assault may have led her to reject men and contributed to her choice of sexual orientation. Research in the USA has indicated that bisexual and lesbian women have experienced higher rates of rape than men.[23] While not suggesting that the lesbian women in this survey chose a particular sexual orientation because of the sexual assaults, it is feasible when considering the high rates of sexual assault among lesbians, that there may be cases, such as the applicant’s, where her experience of rape contributed to her realisation that she was attracted to women rather than men.
[20] Australian government, Smart Traveller Website, <Sierra Leone Travel Advice & Safety | Smartraveller>.
[21] Al Jazeera, 6 February 2020, <Books and bills: Tackling sexual violence in Sierra Leone | Sexual Assault News | Al Jazeera>; UNFPA Website, <UNFPA Sierra Leone | Gender-based violence>.
[22] [Source deleted].
[23] S Canan, K Jozkowski and others, Sage Journal, vol 36, issue 19–20, 26 July 2019, <Differences in Lesbian, Bisexual, and Heterosexual Women’s Experiences of Sexual Assault and Rape in a National U.S. Sample - Sasha N. Canan, Kristen N. Jozkowski, Jacquelyn D. Wiersma-Mosley, Mindy Bradley, Heather Blunt-Vinti, 2021 (sagepub.com)>.
Secondly, the Tribunal is persuaded by the applicant’s evidence that she was attracted to women but that due to the treatment of lesbians in Sierra Leone, it took some time for her to realise it. She has commented that she became more and more attracted to women and felt ‘comfortable’ and that she could be herself. This evidence is persuasive as it appears to be the reasonable response for a woman in a society where lesbians are repressed. Assessing claims involving sexual orientation (and gender identity) 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[24] about these issues. The UNHCR states that ‘adjudicators should be attentive to the differences in applicants’ experiences based on their sex and/or gender and recognize that sexual orientations and gender identities are diverse and evolving identities, whose expression may vary depending on the individual and the cultural, legal, political, and social context.’[25]
[24] 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.
[25] UNHCR, ‘UNHCR’s Views on Asylum Claims based on Sexual Orientation and Gender Identity’, September 2022.
Thirdly, in new evidence to the Tribunal, the applicant provided significant detail about her relationships and family that was missing from earlier evidence (and caused concern for the delegate in assessing her evidence). When talking about meeting [Partner B] she said that when she first met her, at the age of [age], she had been attracted by [Partner B’s] beauty and large breasts. She said that [Partner B] looked sad, so she asked her to talk. This evidence is consistent with earlier evidence, in which she discussed how she talked to [Partner B] about her prior relationship. The fact that they became friends first and it took some time to earn her trust, is consistent with an environment such as that in Sierra Leone, where lesbianism is not openly practised. Further details were provided in her new Statutory Declaration provided to the Tribunal about their life together. She said that she and her partner shared money and watched movies together and were very affectionate. She also commented that they planned to go somewhere else to live openly together although they realised that there was nowhere in Africa they could do that. She mentioned that [Partner B] was the ‘love of her life’. The Tribunal accepts her evidence about the relationship with [Partner B]. It has been corroborated by her sister in a statement dated 19 April 2021. Her sister said that in 2017 she was in the house with her family when people came to the house and started throwing stones and insulting her parents. They also made several attempts to hit her father. Her father asked them why they were behaving like this, and they said that his daughter was a lesbian, and it was an abomination in their country. She commented that the applicant had been caught red-handed with a woman, evidence which corroborated her sister’s narrative. Her sister said that the family recalled how the applicant had refused offers of marriage. Her father was upset and disowned the applicant and took both of his other children to his brother’s house to avoid the tension. When the situation calmed, they returned. She said that they heard from the applicant’s friend [Friend B] that the applicant’s partner had died and that she had travelled. Her sister said that she and her mother were very worried. She said that the applicant had called her and told her ‘the situation’.
The applicant has also provided additional evidence about her family in the Statutory Declaration provided to the Tribunal. She said that her daughter in Sierra Leone is now aged [age]. She lives with her sister, who had told her that her daughter had stopped attending school because she had been harassed about the applicant’s lesbianism. The applicant also told the Tribunal that her mother had been paralysed since the burglary and rape, and the applicant was worried about her. Her mother lives in a province called Masaba in the northern region with her siblings. She said that since 2017 her family knew she was a lesbian as she had been attacked. Her father did not want to see her anymore, but her sister [Sister A] speaks to her. She calls her once a month. This evidence was corroborated by a statement from her sister, provided to the Tribunal.
In making findings of fact, the Tribunal has reflected on academic literature which comments on assumptions which decision-makers may rely on in sexual orientation cases. In this matter, it may be incorrect to assume that a lesbian would provide significant details of her relationships. 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 (Hanna,2005; Tskhay &Rule,2013), applicants need to personally reveal their identity to establish the claim (Mill-bank,2009a). 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 (e.g. Berg & Millbank,2009; Choi,2010) and an interpreter from their own community (e.g. O’Leary,2008; Raj,2013). This is particularly likely if applicants have had to conceal their sexual identity, experience internalized homophobia (Hersh,2015; McDonald,2014) or have doubts over interview confidentiality (Mulé,2020)’.[26] The Tribunal has been careful therefore not to rely on lack of detail about relationships as a determinant of whether relationships took place.
[26] Selim, Hedayat, Korkman, Julia, Pirjatanniemi, Elina, Antfolk, Jan; ‘Asylum claims based on sexual orientation: a review of psycho-legal issues in credibility assessments’, Psychology, Crime & Law, 25 February 2022.
Fourthly, as noted by the delegate of the Department, the applicant’s evidence has been consistent since she first applied in 2018. This includes evidence about the attack on her and her partner in 2017. Consistency and coherency in an account may suggest that an applicant is making a truthful account[27] although not always the case. She has also provided corroborative evidence about the attack, in the form of photographs of her injuries and a statement from her sister, who found out about the attack immediately after. The Tribunal has also considered favourably the fact that she told people in Australia shortly after her arrival in Australia about the attack and the death of her partner, including [Leader B], Team Leader – [Region 1] Salvos (see statement dated 20 August 2023).
[27] See AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, <>
Fifthly, the applicant’s reasons for not leaving Sierra Leone straight after the attack in 2017 are, in the Tribunal’s view, reasonable, although this was an issue of concern for the Department. In the Statutory Declaration to the Tribunal she explained that she considered leaving but there was nowhere for her to go and this is why she did not leave Sierra Leone earlier. It is perceivable that it was not easy for her to find a location to move to, particularly as surrounding countries are also not welcoming to lesbians.
Sixthly, the applicant has provided corroborative evidence that was missing from her evidence to the Department, including statements from her sister in Sierra Leone and from a friend in Australia who knew her in Sierra Leone. She has also explained, in the Statutory Declaration provided to the Tribunal, that her friends [Friend B] and [Ms A] knew of her relationship with [Partner B], but she has lost contact with them so is unable to provide corroborative evidence from them. She said that she and her partner called each other and did not use Facebook or emails so she also did not have social media evidence. She did however provide photographs of herself with [Partner B].
Finally, there is significant evidence that the applicant has integrated into the LGBTIQA+ community in Sydney which supports her claim that she identifies as a lesbian, although she has not found a new romantic partner. The UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity suggests (and this appears to be common sense) that the fact that persons have not had significant relationships does not necessarily indicate that they are not of the sexual orientation claimed.[28] The applicant said at the Department interview that she had not integrated into the lesbian community in Sydney as she has been afraid to go out and is fearful of being captured. In a more recent Statutory Declaration provided to the Tribunal she said that she has not engaged in a romantic relationship in Australia due to her uncertain status and still ‘having trauma’ from what she had been through in the past. She said that she is working at [Employer 1] [in a specified role] and she also works as [an occupation 1] after completing a [related qualification] and has concentrated on work.
[28] UNHCR, September 2022, <UNHCR's Views on Asylum Claims based on Sexual Orientation and Gender Identity | UNHCR US>.
The applicant said in her Statutory Declaration provided to the Tribunal that she has high blood pressure and takes medication. She was referred to [Agency 1] in June 2018. She said that after attending counselling with [Agency 1] she was referred to their LGBTQIA+ community support group headed by [Mr A], himself a gay man. She said that she has been with this support group since then, mainly in [Town 3]. She attends Zoom meetings fortnightly. She also interacts with the group in [Town 4]. She has been to lunches, dinners and games nights. She is a member of their WhatsApp group. She said that she attended Mardi Gras in 2019 and in 2023 during Sydney World Pride. She also went to World Pride Fair Day, and [a named] Conference. She said that she attends [Venue 1], a well-known gay club, from time to time. She has a friend called [Friend A] from Sierra Leone who is also a lesbian. [Friend A] can verify that the applicant is a lesbian. They first met at a party in Sierra Leone before reconnecting through the Salvation Army in Sydney.
A report from [Agency 1] dated 15 August 2023 stated that the applicant was referred to the organisation on 25 June 2018. She was recorded as anxious and tearful due to ‘a traumatic situation’ in Sierra Leone. She then missed a number of appointments. According to the report, she referred herself to [Agency 1] again on 21 January 2021. She told the counsellor she had lost her partner overseas and identified as a lesbian. She attended six sessions. She was referred to the LGBTIQA+ community group with an aim of reducing isolation, learning new things, having fun and ‘being oneself’. She initially did not attend and then attended 20 sessions.
A letter from [Mr A], a Project Officer at LGBTQIA+ Community Support for [Agency 1] dated 17 July 2023, stated that he had known the applicant for about five years since she joined the LGBTQIA+ community support group. He said that during their initial conversation she shared with him her experience of fleeing her home country because of challenges faced as a lesbian in her community. She met the requirements for entry to their group and she subsequently became an active member. He said that they have provided ongoing support to her to allow her to become an integral part of the LGBTQIA+ community and provide her with safety and acceptance to allow her to thrive. He said that she has actively participated in various events including Mardi Gras, Fair Day and other community gatherings. He said that the group values her contributions.
A letter from [Leader B], Team Leader – [Region 1] Salvos dated 20 August 2023, stated that he is a Salvation Army Officer who had worked in a wide variety of community service and church leadership roles over 40 years. He said that he met the applicant in 2018 when she was ‘emotionally distressed and fearful’. He assisted her to find housing and with other support. He said that unlike other asylum seekers he had encountered in his work, he became aware that her claims were based on experiences of persecution as a gay woman. He said that she was always very nervous, emotional and afraid to discuss personal issues. He said that he can vouch for the fact that since she has been in Australia she has identified as a lesbian woman. He said that she has been involved in a Salvation Army [movement] dedicated to creating a more inclusive Salvation Army and Church. He said that she participated in the World Pride Sydney [internal events]. He said that in his dealings with her he has never doubted the truthfulness of her story or the genuine fear she has of persecution and violence due to her sexuality. She has worked hard to live with integrity. He provided a photograph of her at World Pride Day.
[Friend A] also provided a statement dated 16 February 2021. She said that she was born in Sierra Leone. She met the applicant some time in 2013 at a lesbian birthday party where she was introduced. They did not see each other much. However, in Australia in 2018 she went to the Salvation Army to seek help and support. She went into the waiting room and saw the applicant there. She said that it was a ‘sad, emotional and exciting moment’. She said that there was a ‘throwback into memories of our past trial and humiliation during our conversation, which we suffer back in Sierra Leone’. She said that in the waiting room, the applicant explained how she was attacked which had led to her partner’s death. She said that the Salvation Army offered them emergency accommodation and they have supported each other since then. She said that she could confirm that the applicant is a lesbian.
[Leader A], [Town 5] Salvation Army, provided a character reference for the applicant on 29 January 2021. He said that the applicant is a valued member of their congregation whom he had known for three years. He said that she is a faithful Christian and had improved her life over the years. She had spoken to him of the ‘trauma’ which had caused her to flee Sierra Leone.
The Tribunal accepts from the persuasive corroborative evidence that the applicant has engaged in the LGBTIQA+ community in Sydney. Further the fact that the applicant has spoken to a number of credible witnesses about her trauma, and they have seen her identify as a lesbian, is given significant weight. [Leader B] discussed how she was very nervous talking about her sexual orientation, which is consistent with her evidence that she is shy, and is used to subverting her sexuality out of fear of persecution. He also vouched for her honesty, as did [Leader A]. The evidence of the applicant’s friend, [Friend A], was also persuasive. She had briefly known the applicant from the secretive lesbian community in Sierra Leone and then met up with her accidentally in Sydney, where she has described compellingly, the ‘sad, emotional and exciting moment’ of their reunion. The applicant spoke to her, contemporaneously with her arrival in Sydney, of the attack on her and her partner in Sierra Leone. This evidence adds weight to the applicant’s claims.
Considering all the above factors cumulatively, the Tribunal is satisfied that the applicant is a lesbian as claimed and that she and her girlfriend were attacked prior to her departing from Sierra Leone.
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.[29]
[29] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Convention.
The Tribunal is satisfied that the applicant fears being persecuted as she was attacked in the past, and country sources, discussed in more detail below, indicate that lesbians are persecuted in Sierra Leone.
Is the applicant a member of a particular social group?
Section 5L of the Act defines ‘particular social group’ as follows:
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.
The Tribunal is satisfied that the 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 (her sexual orientation), which is an innate or immutable characteristic, and the characteristic is not the fear of persecution.
It is well established that gays or lesbians in a given country can constitute a particular social group.[30]
[30] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 47.
Is there a real chance of serious harm if the applicant were to return to her home country?
The applicant claims to fear that she will be arrested, imprisoned, violently or sexually assaulted or killed if she returns. She also fears ostracism and discrimination.
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;[31] not only must a person fear persecution, there must also be a prospect of that fear being realised.
[31] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[32]
[32] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 171.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal must take into account country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT has not prepared such a report for Sierra Leone, however on 3 December 2020 it prepared a thematic report on the Economic Community of West African States (ECOWAS). That report notes that Sierra Leone has criminalised same-sex acts between adults.[33]
[33] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020 at 2.17.
The law in Sierra Leone criminalises same-sex activity between men.[34] This law is not enforced, and there is no similar law in relation to same-sex activity between women.[35] However there are reports of occasional arrests as well as consistent reports of significant discrimination and violence against LGBTIQA+ people.[36] Sources also suggest that corrective rape against lesbians is ‘prevalent’.[37]
[34] Amera International Website, <Sierra Leone LGBTQI+ Resources – AMERA International>.
[35] United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023.
[36] Human Dignity Trust, ‘Sierra Leone’, < United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023; Human Dignity Trust, ‘Sierra Leone’, <>
Sources refer to threats, harassment, blackmail, familial rejection, and the denial of basic rights and services for LGBTI people.[38] 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.’[39]
[38] See for example, United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023; Human Dignity Trust, ‘Sierra Leone’, < 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.[40] The report suggest that public opinion and media usually consider sexual orientation as a choice that reflects a sexual perversion and that 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.[41]
[40] ILGA, May 2019, < ILGA_State_Sponsored_Homophobia_2019.pdf>
[41] 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[42] made the following points:
·The 1861 Offences Against the Person Act criminalises sexual conduct.
·Individuals are widely discriminated against on the basis of sexual orientation, and attacks go largely unpunished and hate crimes are rarely reported.
·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.
[42] 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 for consideration at 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.[43] Sources suggest that homosexuality is considered to be a ‘western import’ and is often thought to have no place in African society[44] with gay behaviour regarded as being a sin and of bringing bad luck.[45] Sierra Leonean social attitudes towards men having sex with other men is full of stigma, discrimination and violence[46] with one local media source stating that ‘Sierra Leoneans are mainly anti-gay’.[47] 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.[48] 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.[49] 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.[50] LGBTI advocates report that the community is denied public services such as health care, justice and housing.[51] 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.[52]
[43] Religion News, ‘Sierra Leone – Human Rights Defenders stay silent on LGBTQ discrimination’, 1 August 2018; Amera International Website, <Sierra Leone LGBTQI+ Resources – AMERA International>.
[44] 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.
[45] Dazed Digital, ‘Photos of Sierra Leone’s LGBT community, where gay is a sin’, < 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. 11–18.
[47] Concord Times, ‘Where is Hamidu Jalloh?’, 14 May 2019.
[48] Nightwatch, 20 June 2019, <Sierra Leonean Gay Youth Declared Wanted in Home Country | Night Watch Newspaper>.
[49] Mina Bilkis (Sierra Leone), ‘LGBTQI in Sierra Leone: The Queen Harold Project’, 1 July 2020.
[50] 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.
[51] US Department of State, ‘Country Reports on Human Rights Practices for 2020 – Sierra Leone’, 30 March 2021.
[52] 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’.[53] 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.[54]
[53] 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.
[54] 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.
While much of this literature refers to gays, it can be assumed that the attitudes are similar towards lesbians, given reports of narrow attitudes and discrimination. 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 she marries 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’.[55]
[55] Mina Bilkis (Sierra Leone), ‘Story 1: The Queen Harold Project’, 6 July 2020.
In particular, lesbians are reportedly at risk of being victims of ‘planned rapes’ as the community attempts to correct their sexual orientation.[56] One report states corrective rape is ‘highly prevalent’.[57] Victims rarely report due to fear of retaliation and a lack of action by police. There are almost no rape convictions in Sierra Leone.[58]
[56] Rights in exile, ‘Sierra Leone LGBTI Resources’, 1 January 2018.
[57] 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.
[58] 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. These organisations face particular problems in the rural areas of Sierra Leone.[59] Members of the LGBTI community have also voiced their concerns with coming out to their family as they fear violence, being ostracised or being reported to the police.[60]
[59] Front Line Defenders, ‘Sierra Leone/Front Line Defenders’, undated.
[60] The Global Fund, ‘Dignity’, 5 July 2017; Lucas Ramon Mendos, ILGA, ‘State sponsored homophobia 2020 Global Legislation Overview update’, 15 December 2020.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation.’
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[61]
[61]Chan v MIEA (1989) 169 CLR 379 at 397.
The Tribunal is satisfied that there is a real chance of serious harm for this applicant based on the reputable country sources set out above, as well as the applicant’s experiences of harm in the country. The Tribunal has taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559, ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ The sources indicate that while female same-sex conduct is not criminalised, many women in same-sex relationships are subject to violence, discrimination and ‘corrective rape’. The Tribunal is satisfied that the applicant may already be known to her community as a lesbian, which would heighten the chance of harm she could suffer. The Tribunal is satisfied that the chance of harm is more than conjecture or surmise (MIEA v Guo (1997) 191 CLR 559) and would comprise a substantial chance of harm, as opposed to a remote or far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).
Is the persecution for one of the reasons set out in the legislation?
The persecution feared must be for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The stated reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[62] In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it.
[62] Section 5J(4) of the Act.
The Tribunal is satisfied that the harm would be for the essential and significant reason of the applicant’s membership of a particular social group of lesbians, given the country sources referred to above which indicate antagonism towards lesbians.
Does the real chance of persecution relate to all areas of the receiving country?
Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.
The Tribunal has considered first whether there is a real chance of persecution in the area of the receiving country in which the applicant will return or be returned[63] which would be Freetown, the capital and her hometown. As set out above, the Tribunal is satisfied that there is a real chance of persecution in Freetown. However s 5J(1)(c) of the Act requires consideration of whether the risk is localised to that particular area or exists elsewhere.
[63] See CSO15 v MIBP (2018) 260 FCR 134 at [42].
The Tribunal has considered whether there is a real chance of persecution in other areas, and is satisfied that the real chance of persecution relates to all areas of the country as the harm feared is from the State and community, and harm could be inflicted on her wherever she lived.
Does the persecution involve systematic and discriminatory conduct?
Under the legislation, persecution must involve systematic and discriminatory conduct.[64]
[64] Section 5J(4) of the Act.
It is well established that ‘persecution’ within the meaning of the Convention involves a discriminatory element. Courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor (Ram v MIEA & Anor (1995) 57 FCR 565 at 569).
In MIMA v Haji Ibrahim (2000) 204 CLR 1, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan was not intended to mean that there can be no persecution for the purposes of the Convention unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random.
The Full Federal Court observed in SZTEQ v MIBP (2015) 229 FCR 497 that ‘systematic’ is used in s 91R(1)(c) in the same way that ‘discriminatory’ is used – to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.
100. Whilst the Haji Ibrahim case predates the enactment of both s 91R and s 5J, it remains law insofar as the meaning of ‘systematic’ is concerned. The term ‘systematic’ in ss 5J(4)(c) and 91R(1)(c) should therefore be taken to mean ‘non-random’ in the sense of being deliberate, premeditated or intended. It is not necessary that conduct be regular, organised or methodical.
101. 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 applicant to return to Sierra Leone.
Does the harm amount to serious harm?
102. The legislators intended that in order for an applicant to meet the refugee criterion, the harm a person suffers must reach the level of ‘serious’ rather than minor harm.
103. The Act provides that the following are instances of serious harm: (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.[65]
[65] Section 5J(5) of the Act.
104. In this case, sources indicate that the harm could include violence and corrective rape, which are forms of serious harm.
Is effective protection available to the applicant?
105. A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act.
106. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
107. The Tribunal is not satisfied that the applicant, as a lesbian, could access State protection. There is evidence that the State is responsible for harm on occasion, including arrests, as discussed earlier in this decision. 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.[66] The Sierra Leone police force is reported to lack training on human rights topics,[67] suffer from a lack of resources[68] and be unable to control large crowds; in addition, impunity remained a significant problem across all of the security forces.[69] The police force is also known to be slow to respond, unreliable and to use excessive force.[70]
Could the applicant modify her behaviour?
108. Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. The sources set out above suggest that many LGBTIQA+ people in Sierra Leone hide their sexual orientation out of fear.
109. Section 5J(3) does not apply to a modification that would alter sexual orientation or gender identity or conceal true sexual orientation, gender identity or intersex status. The Tribunal is not satisfied therefore that the applicant could take reasonable steps to modify her behaviour to avoid a real chance of serious harm.
Findings on well-founded fear of persecution
110. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of membership of a particular social group of lesbians in Sierra Leone.
[66] United States Department of State, ‘Country Reports on Human Rights Practices 2022’, 20 March 2023.
[67] 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.
[68] Overseas Security Advisory Council (OSAC), ‘Sierra Leone 2020 Crime & Safety Report’, 4 July 2020, p.5.
[69] 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.
[70] OSAC, ‘Sierra Leone 2020 Crime & Safety Report’, 4 July 2020, p.5.
Safe third country protection
111. Having found that the applicant meets the criteria set out in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant has taken all possible steps to avail herself of a right to enter and reside in a country apart from Australia.
112. Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
113. The right to which s 36(3) refers is not merely a right to enter but must consist of a right both to enter and reside.[71] The Federal Court has held that a ‘right to enter and reside’ as envisaged in s 36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[72] This case also held that the Tribunal should evaluate whether, in combination with those terms, the administrative arrangements for entry satisfy the test of a liberty, permission or privilege lawfully given to enter and reside in the country. Australian courts have held that the right referred to in s 36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy.[73] There must not be any existing prohibition or law contrary to its exercise.[74]
114. The Full Federal Court has also provided guidance on the scope of a right to enter and reside in SZTOX v MIBP [2015] FCAFC 77, confirming the right may lie in an executive act as well as legislation, such as a treaty, executive policy or other executive instrument.
[71] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[72] MIMAC v SZRHU (2013) 215 FCR 35.
[73] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001).
[74] V856/00A v MIMA (2001) 114 FCR 40.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A) (that is, no need to be legally enforceable).
116. Sierra Leone is one of the member states of the ECOWAS founded in 1975. According to the current DFAT Thematic Report from 2020: ‘The Economic Community of West African States (ECOWAS) is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but has not yet been accepted.’[75]
[75] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020 at 3.2.
117. Considered one of the pillars of the African Economic Community, ECOWAS was set up to foster the ideal of collective self-sufficiency for its member states. As a trading union, it is also meant to create a single, large trading bloc through economic cooperation. Integrated economic activities envisaged include the areas of industry, transport, telecommunications, energy, agriculture, natural resources, commerce, monetary and financial issues, social as well as cultural matters.[76]
[76] ECOWAS website < 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.[77]
[77] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
119. The ECOWAS protocols entitle ECOWAS citizens to visa-free entry, to work and reside, in all ECOWAS member states for 90 days provided they have valid travel documents, an international health certificate and they are not ‘inadmissible immigrants’ under the domestic laws of the member state.[78] This right of entry has been implemented by all 15 states.[79]
[78] International Organisation for Migration (IOM) and UNHCR, ‘protecting refugees and other persons on the move in the ECOWAS space’, 1 January 2011.
[79] ACP Observatory on Migration, Annex of ‘Across Artificial Borders: An assessment of labour migration in the ECOWAS region’ 1 January 2014, < UNHCR and IOM, ‘Nationality, Migration and Statelessness in West Africa: A Study for UNHCR and IOM’, 1 June 2015; DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
120. Valid travel documents are defined in the Protocol as a passport or other valid travel document establishing the identity of the holder and can include a laissez-passer.[80] The applicant has a passport, but it is not clear that she has a health certificate. While ECOWAS is currently reviewing documentation requirements and plans to remove the health certificate requirement, DFAT is not aware of the planned timeframe for implementation of the reforms or the likely uptake by member states.[81]
[80] ECOWAS, ‘Official Journal of the ECOWAS’, 1 May 1979; DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[81] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’ 3 December 2020.
121. The term ‘inadmissible immigrant’ is not defined and is left to the domestic laws of the states. A 2007 report referred to Nigeria, Sierra Leone and Ghana each declaring certain persons to be prohibited migrants under their relevant legislation.[82]
[82] Sierra Leone, see < section 19; Ghana, see < section 8; and Nigeria, see < section 44.
122. The right of residence has only been implemented in a few states, namely Benin, Burkina Faso, Cote D’Ivoire, The Gambia and Nigeria.[83] However in order to reside in these countries, ECOWAS citizens must obtain a residence or work permit just like non-ECOWAS immigrants, and this is not guaranteed, and can be refused on public order, public security or public health grounds.[84]
[83] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[84] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
123. Implementation challenges persist due to full freedom of movement and rights to reside being limited by the independent laws and restrictions of individual states,[85] as well as potential administrative harassment, and extortion on the part of member states.[86] DFAT reports that immigration authorities can refuse entry in some circumstances (if, for example, the person is a prohibited immigrant, an undesirable person or without visible means of support).[87]
[85] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[86] ACP Observatory on Migration, Annex of ‘Across Artificial Borders: An assessment of labour migration in the ECOWAS region’, 1 January 2014, p.86, <
[87] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020 at 3.2.
124. Women face particular challenges, given the varying administrative procedures and harassment at borders.[88]
[88] ACP Observatory on Migration, Annex of ‘Across Artificial Borders: An assessment of labour migration in the ECOWAS region’, 1 January 2014, p.86, <
125. A 2015 report refers to an earlier report that states regional travel documents had not been distributed in half the countries; in most countries West African passports were not available; and harassment at border control posts continued.[89] Citizens of Sierra Leone have had difficulties obtaining travel documents.[90] An article in 2017 refers to the ECOWAS Commission President stating that harassment comprised a major handicap to free movement of persons.[91]
[89] UNHCR and IOM, ‘Nationality, Migration and Statelessness in West Africa: A Study for UNHCR and IOM’, 1 June 2015, 5.
[90] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[91] ECOWAS website, ‘ECOWAS Commission President urges setting up of regional data sharing mechanism for migration’, 3 August 2017, <
126. Importantly, in 2022, the International Organisation of Migration reported that since the COVID-19 pandemic, while many countries have reopened their borders, various health and travel restrictions remain and continue to have impacts on migration and mobility in the region.[92]
[92] IOM, ‘World Migration Report 2022’, 1 December 2021, p.68.
127. The president of the ECOWAS Commission has recently stated that they are worried about insecurity in the region with three countries, Mali, Burkina Faso and Guinea, under military rule, and more than 1800 terrorist attacks in the first six months of 2023. The president has referred to the fact that nearly 6.2 million people in the region are displaced, and many more in dire need of food.[93] A crisis in Niger has also caused significant concern for ECOWAS.[94]
[93] Aljazeera, 26 July 2023 <Over 1,800 ‘terrorist attacks’ in West Africa in 2023: ECOWAS | Armed Groups News | Al Jazeera>.
[94] US Department of State, 22 September 2023, <Secretary Blinken’s Meeting with West African Partners on the Situation in Niger - United States Department of State>.
128. Given the shortcomings regarding the implementation of the ECOWAS Protocols, including difficulties obtaining documents (and in this case the health document), the criteria and vagaries of national laws in respect of both the right of entry and right of residence, and the security situation, the Tribunal is not satisfied the applicant does, at the time of this decision, have a presently existing right to enter and reside in any other ECOWAS member state: s 36(3). There is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside in any other country.
129. Even if the Tribunal is wrong about this and the applicant does have a meaningful right to enter and reside in an ECOWAS member state, country information indicates that LGBTI issues are taboo across the ECOWAS region, both officially and societally. The DFAT Thematic Report states at 2.17 that The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, Sierra Leone and Togo all criminalise consensual same-sex sexual acts between adults.[95] 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.[96]
[95] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020 at 3.2.
[96] DFAT, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020; ILGA, 2019, < 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 applicant is a lesbian, and based on the country information referred to above, the Tribunal considers that as a lesbian with her profile, the 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.
131. Accordingly, the Tribunal finds that s 36(3) does not apply in respect of the other ECOWAS member states and the applicant is not excluded from the operation of Australia’s protection obligations on this basis.
CONCLUDING PARAGRAPHS
132. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
133. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jane Marquard
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.
…
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Remedies
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Citations1821422 (Refugee) [2023] AATA 4540
Cases Citing This Decision0
Cases Cited23
Statutory Material Cited0
AWL17 v Minister for Immigration and Border Protection [2018] FCA 570AWL17 v Minister for Immigration and Border Protection [2018] FCA 570