1824416 (Refugee)

1824416 (Refugee) [2023] AATA 4132 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ashley Ognenovski
CASE NUMBER:  1824416
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Sean Baker
DATE:6 September 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 06 September 2023 at 11:01am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – membership of particular social group – homosexual man – relationships with men – pressured into marriage by family – attacked and injured by groups – relocation to neighbouring country before departing – conversion to Christianity in Australia – increasingly open expression and participation in general community and activist organisations but not in local community or church – consistent evidence and supporting statements – not required to conceal orientation – country information – laws and societal stigma and discrimination – treaty right to enter and reside in neighbouring countries limited in practice – same-sex sexual acts illegal or not specifically protected – attitudes and actions by non-state actors tolerated by police – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (3), (4)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a [citizen of Sierra Leone], applied for the visa on 6 August 2018. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant was homosexual as claimed.
The applicant appeared before the Tribunal on 14 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well founded fear of persecution or, if not, there is a real risk he will suffer significant harm if removed from Australia to Sierra Leone. For the following reasons, the Tribunal has concluded that the [matter should be remitted for reconsideration].
Country of reference
The applicant was born in [Village], Sierra Leone and is a citizen of Sierra Leone. The applicant produced his Republic of Sierra Leone passport, issued [in] 2017, as evidence of his identity and nationality. He speaks Krio, Temene and English.
On the basis of the above information I accept that the applicant is a national of Sierra Leone and that this is his country of reference.
Claims
The applicant, now [Age] years of age, was born in [City], Bombali District, Sierra Leone. He is a citizen of Sierra Leone. The applicant is of Themene ethnicity and is a Christian. The applicant’s parents reside in Sierra Leone. In his application for Protection, he stated that he separated his partner in December 2014.
The applicant departed Lungi Airport, Sierra Leone [Day 1] March 2018. He arrived in Australia legally on [Day 2] March 2018, as the holder of a [Specified] visa. The applicant lodged his Protection visa application on 11 May 2018. This visa was refused on 07 August 2018.
The applicant’s claims were initially set out in the application for protection. In his application, the applicant discussed his claims as a homosexual in Sierra Leone. He claimed that he will be in great danger of losing his life; he explained how he fled to [Country 1] to try and be safe, but it was not safe for him to be in this country either. On his Protection application, he stated that “no West African country is safe as homosexuality is not permitted or tolerated there”. Further, the authorities cannot protect him because homosexuality is against the law.
In support of his Protection visa claims the applicant included the following documents:
·His supporting statement dated 10 May 2018;
·A copy of his Sierra Leone passport.
In his supporting Statement dated 10 May 2018, the applicant expanded on his claims by detailing the following:
·During his secondary education, the applicant realised he was homosexual.
·He started a sexual relationship with a friend, [Mr A], during the end of his time at high school and has remained as the applicant’s partner since this time.
·During high school, the applicant had his first homosexual relationship with [an International group] worker who originated from [Country 2].
·The applicant tattooed the [International group worker’s] name on his [Body part 1].
·In 2002, the applicant returned home to his village after leaving high school. His father saw the tattoo on his [Body part 1] and was furious. His father said, “You are from a Muslim family, how can you put a tattoo on your body?”. The applicant was terrified that his father would find out that he was a homosexual, so did not respond to the question. His father kicked him out of the family home.
·The applicant went to his maternal aunt’s house where had temporary shelter. The applicant spoke to his mother and requested her to ask his father for forgiveness. After his mother spoke to is father, the applicant was allowed to come back home on the condition that he married a woman.
·The applicant felt he had no choice but to accept the marriage to hide his homosexuality from his father. He was also afraid that his mother would be beaten if he said no.
·In [Year], the applicant married his ex-wife, [Ms B]. They were married for about two years.
·Throughout his marriage, [Mr A] would visit the village every few months. The applicant would find excuses to spend time with [Mr A] and would have a sexual relationship with him when he was at the village. The applicant hid this from everyone.
·His ex-wife, [Ms B], regularly complained to the applicant’s father that he had no interest in her. The applicant felt immense pressure from his family, especially his father, to have a child.
·The applicant was fearful that if he did not have a child, his father’s suspicions would be confirmed.
·On [Date], [Ms B] gave birth to the applicant’s child, [Ms C].
·The applicant’s marriage with [Ms B] ended close to [Month, Year] where he left the village and travelled to Freetown.
·In Freetown, the applicant sought refuge with [Mr A]. [Mr A] worked and lived in Freetown and gave the applicant a place to stay in the city. [Mr A] also supported the applicant as he was unemployed.
·In 2015, the applicant was sitting in a bar with [Mr A] and some friends. On the applicant’s way home, a group of men approached him. The group told the applicant there were rumours he was homosexual and was in a relationship with [Mr A]. The group of men punched and kicked the applicant. He was badly beaten and bruised, had injuries to his feet, legs, abdomen, ribs and his head was bleeding profusely. The applicant also [suffered damage]. A man, who was friends with [Mr A], helped the applicant get to a medical clinic to see a doctor. At the clinic, he realised that the group had also robbed him.
·The applicant attempted to report the attack to the police, but they did not assist him. He was worried that the police would also hurt him if he disclosed why he had been attacked.
·The applicant physically recovered after a month. He was heavily traumatised and feared for his life in Freetown.
·He returned back to his village shortly afterwards but never returned to his ex-wife. [Ms C] had already left the village and his daughter was in the care of his mother.
·The applicant told his father he had been attacked by a gang and was able to live in the family home again.
·In October or November 2017, [Mr A] came back to the village for a few days. The applicant was with [Mr A] at his family’s home and were spending the day in secret. A female relative of [Mr A] came home and saw that they were having sexual relations. This female relative screamed ‘Abomination! Abomination!’. A crowd of people came rushing into the house. In the crowd were [Mr A]’s family members and two of his uncles, who were important Muslim prayer leaders. The crowd shouted: “Hold him! Don’t allow him to escape!”.
·The applicant was scared for his life and grabbed his belongs and ran.
·He reached a village where he telephoned a friend, [Mr D], for help. [Mr D] was a [Public figure], who advocated for gay and lesbian people.
·Johnson told the applicant that he should travel to [Country 1] while he tried to organise a safe passage for him to leave for Australia. The applicant was transferred a small amount of money for travel costs and sent [Mr D] a copy of his passport.
·From the village, the applicant travelled by car and fled to [Country 1]. He hid in a small village while he waited to hear from [Mr D] about his visa.
·On [Day 1] March 2018, the applicant called his friend [Mr E], who knew [Mr D], to see if there was any news for him. The applicant then called [Mr D] who had told him his visa had been granted to travel to Australia. The applicant packed his belongings and paid for a truck to [City].
·On [Day 2] March 2018, the applicant travelled by car from [City] to Lungi International Airport.
·Since arriving in Australia, he has been afrai for his life for other people, especially people from Sierra Leone, if they find out he is homosexual. He is especially fearful from his father. He is also worried for [Mr A].
·In April 2018, the applicant heard that the SLPP have come to power.
·If returned to Sierra Leone, he is afraid that he will be beaten again or killed. He is afraid of this harm from the people in his village, his father, family, members of the public in Sierra Leone and Sierra Leonean authorities.
·The applicant cannot relocate to Sierra Leone because homosexuals are hated and attacked in every part of the country. He has heard that homosexuals have been killed in other parts of the country and that it is more dangerous now that the SLPP are in power.
·He is afraid that he would not be protected by anyone, including the authorities. He could be arrested or beaten if he makes a complaint to the authorities.
·He does not believe any other country can protect him because any African country also hates homosexuals and believe she is an abomination.
PV Interview
On 07 June 2018, the applicant attended an interview to discuss his visa application and claims. During the interview, the applicant provided the following information:
·The applicant moved in with a female partner in [Year] and they have a child together ([Ms C]) who was born in [Year]. He said that a ceremony was done but he was not part of it. He did not sign any marriage documents;
·His daughter was left with his mother at their village but the applicant is unaware of her location at this time;
·The applicant lived with [pastor F] of [Church 1].
·Applicant had someone take care of him since primary school in Sierra Leone. He also received assistance from a friend named [Mr A];
·The applicant could not obtain work because of finger pointing and back biting;
·The applicant spent his time in the village;
·Applicant was born into a Muslim family;
·Applicant’s father was associated with a particular mosque;
·Applicant converted to Christianity because he saw Christ as a saviour and had faith in the religion. There was no discrimination as like what he experienced in Islam.
·Applicant identifies as a [Church 2];
·Applicant has two sisters and one brother;
·Applicant started going to church but it is around the time he left primary school and went to high school;
·Applicant attends a [Church 1] church in [Suburb];
·Applicant’s sister was aware of his Christian faith. The rest of his family were not aware;
·Applicant received assistance from [Mr D] with his visa application;
·Applicant does not want to return to Sierra Leone because it was not easy for him. The applicant’s parents were Muslims, and he chose his own way of life. He did not like the pressure they put on him. Applicant was afraid for his life to return to his village, but he had no option;
·The applicant was a person who did not have feelings for women. He was living with [Mr A] and the village started pointing fingers at him;
·[Mr A] and the applicant were born in the same village and he was the one assisting her. [Mr A] also had no feelings for women. When the applicant was forced into his marriage, he began to feel the pressure from the woman as he was not showing any affection, his mother and father were stressing him so much. This situation was worrying him as he did not want his father to know that he had feelings for the same sex;
·The applicant realised he was not into women when he was in sixth year in school. [Mr A] was also older;
·The applicant reiterated that it was not easy for him to realise he had feelings for the same sex. Anytime [Mr A] is around him that he feels good;
·The applicant had too drink to forget about his feelings for men and [Mr A];
·In 2002, the applicant left school and returned to the village. He met [Mr A] when he used to come to the village. He used to make an excuse and then go and see [Mr A].
·[Mr A] was working in Freetown;
·[Mr A] may have been the same age as his father’s youngest brother;
·The applicant and [Mr A] love each other;
·The applicant was attacked in Freetown and were saying all kinds of things to him. This happened when he left the village in 2015. The applicant did not respond to them. One of the men slapped him and then another man found him on the floor and took him to a clinic. The applicant does not which clinic as he was not familiar with Freetown. The man who rescued him knew [Mr A] and they went to the police station to report the incident. The police said the matter was not serious. The applicant was afraid to let the police know that he was that type of person. The police asked him too many questions, then he panicked himself. He has been attacked frequently and was afraid for his life, so then he decided to go back to the village;
·When the applicant returned to the village, he was caught with [Mr A] for the first time, and from that time until now it has been hard for the applicant. It was at that time, he decided to move to [Country 1] because none of the village knew him;
·Applicant was caught with [Mr A] in his family’s house;
·The woman who caught them shouted at them, then the village people came and started shouting as well. They tried to not let him get away. Applicant was running for his life;
·[Mr A]’s family were Muslims;
·Applicant travelled to [Country 1] by a small fishing boat from his village. Applicant used the boat to travel to a small town;
·Applicant met a person in Freetown who was like them. This person told him if he had any problems, so when he ran from the village, the first person he called was him;
·Applicant did not know what happened to [Mr A] as he was worried about his own life. He made no contact with [Mr A] in [Country 1] and has not contacted him since arriving in Australia;
·Applicant was also in another relationship with [Mr G];
·[Mr G] was a person who was caring for the applicant when he was young;
·People had seen him with [Mr A] and [Mr A] had a reputation for being that kind of person, so people were aware of their situation;
·Applicant and [Mr A] used to go to clubs together in Freetown;
·Applicant knew one other person in Freetown, [Mr D];
·Applicant has not integrated himself into the Australian community as a homosexual, as he is still afraid;
·Applicant met [Pastor F] who has been taking him to church and provided him with shelter;
·Applicant has not made any friends in Australia except for those in the Church;
·[Mr A] knew [Mr D] because he was one of them;
·Applicant first met [Mr D] when he was beaten;
·[Mr D] helped the applicant come to Australia;
·If the applicant were to return to Sierra Leone, he fears that he would be having to go through what he experienced again and fears that he would be jailed. Applicant stated he would rather commit suicide than return;
·Applicant cannot relocate because it is not safe;
·Applicant claimed that the authorities cannot help him because in Sierra Leone it is outright if people know you are this type of person. You will be killed.
·Applicant cannot relocate to another regional area and feel safe because it is not easy and even in [Country 1], he was treated a certain way;
·Applicant obtained his visa to come to Australia through [Mr D]. [Mr D] helped him, and all the applicant provided was a copy of his passport, but he does not know how it happened. Applicant was only told that he had his visa to come to Australia;
·The applicant met [Mr D] at the time when he was a [Public figure];
·Now that the APC is not in power, it will be a problem for the applicant. He stated that if it is a problem because of the gay issue;
·Applicant stated he is not political;
·Applicant is also worried about [Mr A] and his mother’s position;
·Applicant stated he wants to live his life without fear.
Delegate’s Decision

On 06 August 2018, the delegate decided to refuse the applicant’s Protection (subclass 866) visa on the basis that they were not satisfied that he is a refugee and that there is a real risk he will suffer significant harm, if returned to Sierra Leone. In reaching their decision, the delegate accepted the following:
·The applicant was born into a Muslim family;
·He converted to the Christian faith;
·He was born and raised within the Bombali district of Sierra Leone;
·He befriended a local [International group] worker named [Mr G];
·He was childhood friends with [Mr A];
·He spent time in [Country 1] prior to travelling to Australia;
·He was physically assaulted in Freetown in 2015 by youths;
·[He suffered damage] as a result of the targeted attack;
·He resided in Freetown for six months in 2015;
·The applicant went through an arranged marriage in [Year] and has a child from that relationship;
·The relationship broke down in [Year];
·His child currently remains living with his family;
·His estranged wife left the applicant’s village.
However, the following protection claims were not accepted:
·The applicant is a homosexual in Sierra Leone and in Australia;
·He was in a same sex relationship on two different occasions with [Mr G] and [Mr A] in Sierra Leone;
·He left his village in approximately 2014 due to pressure from his family and a fear that they knew about his sexual orientation;
·He was in a relationship with [Mr A] in Freetown in 2015;
·The applicant was targeted and physically assaulted by a group of men in 2015 due to his claimed sexual orientation;
·Local authorities refused to assist the applicant;
·The applicant and [Mr A] were caught together by local village community members in 2017;
·The applicant escaped to [Country 1] as a result of this incident;
·The applicant possesses a genuine fear of persecution due to his sexual orientation.
In reaching their conclusion, the delegate was not satisfied that the applicant would face a real chance of persecution for reasons of his sexual orientation. Further, the applicant was not a refugee as defined by s5H(1) of the Act and that he is someone that is a person in respect of whom Australia has protection obligations.
Documents Submitted to the Department
On 15 May 2018, the following documents were provided to the Department:
·Applicant’s passport bio data page (passport no. [Number]);
·His supporting statement dated 10 May 2018.
On 05 June 2018, a certificate copy of the applicant’s passport (passport no. [Number]) was provided.
On 04 July 2018, the applicant’s representative provided post-interview submissions.
Documents Submitted to the Tribunal
In support of his review application, the applicant provided the following documents:
·A copy of the Delegate’s Notification Letter and Decision Record;
·His statutory declaration dated 21 July 2023;
·An outline of the applicant’s Protection visa claims submitted 24 July 2023.
·Pre-hearing submissions;
·10 Letters of Support;
·Photo Evidence of LGBTIQ+ involvement; and
·Medical report.
The applicant’s statutory declaration of 21 July 2023 included updated information about his life in Australia since the interview. In particular there is significant detail about his engagement with and advocacy for the LGBTI community in Australia. He explains in his statutory declaration that he began attending the [Organisation 1] LGBTIQA+ support group in 2018. He goes on to say that he became a facilitator of the group at the beginning of 2022 and he regularly trains people. He has been attended and presented at conferences as a representative of [Organisation 1] including sharing his own story. He has attended Mardi Gras from 2019 onwards each year, representing various group. He has met with the UN independent expert on sexual orientation and gender identity and has attended [an awards ceremony] with [a Public figure] in recognition of his involvement with the LGBTI asylum seeker community and [Organisation 1]. He also explains that he is open about his sexuality in Australia but has attempted to keep this hidden from the Sierra Leonean community in Australia. However, in 2022 he spoke at [a] conference of [Church 1] about the discrimination he faced as a gay man and his talk was posted online without his permission. He has faced discrimination and rejection from his church and community as a result. He became fearful of the African community in Australia and distanced himself but still experienced abuse and discrimination. In Australia he has had several casual relationships.
The support letters include letters from [Ms H], co-founder of [Organisation 2] and current assistant director to [a] Government Office of LGBTIQ+ Affairs, who writes about the applicant’s active involvement and engagement with [Organisation 2]; [Ms I], LGBTIQA+ Project Co-ordinator at [Organisation 1], who details the applicant’s active involvement with the LGBTQIA+ community. The other letters of support contain similar testimony.
The photos provided include the applicant speaking at the [Church 1] conference and [Organisation 2] conference, marching with [Organisation 2] and [Group] at Mardi Gras, meeting [a Public figure] at [Venue] for [an awards ceremony] in 2022, and other events.
Consideration
Credibility
The applicant provided evidence at the hearing consistent with his earlier claims. He was also able to detail his life in Australia. I questioned him about his realisation of his sexuality, his life in Sierra Leone and his relationships with [Mr G] and [Mr A] and with the woman he entered an arranged marriage with. At all times the applicant was able to provide responses that were consistent with earlier information but also internally consistent and coherent. He was able to provide further detail, for example in relation to the role his father had played in his life and in him having to leave the family home, his reasons for living with a woman, and the stigma that attached to him because he was suspected of being homosexual.
Moreover, his evidence about his life since coming to Australia further confirms his claims. That is, his behaviours since arrival in Australia in 2018 appears to me to have indicated a process of him becoming more comfortable to openly express his sexual orientation. On reading the information from people at [Church 1], [Organisation 1] and [Organisation 2], as well as his own testimony at the hearing, I accept that the applicant has gradually become more comfortable with expressing his identity as a gay man to some parts of the Australian community and to taking a leadership role. The applicant also spoke at some length about the [Church 1] conference at which he spoke and the fact that this was shared without his consent or knowledge. I accept that the applicant had attempted to be discreet amongst the African Australian community and his church community about his sexuality but that this livestream made this very difficult for him and led to difficulties for him in these communities.
I accept that the applicant is a homosexual man, who had relationships with [Mr G] and [Mr A] in Sierra Leone and has had casual relationships with men in Australia. I accept that he attempted discretion in his homosexual relationships in Sierra Leone but I find that this was to avoid harm to himself and them. I accept that he has identified with the LGBTI community in Australia, both with [Group] in successive Mardi Gras, and substantially with asylum seeker and LGBTI advocacy through [Church 1], [Organisation 1] and [Organisation 2], and that with these later organisations he has moved from identification and engagement to active advocacy. His sexuality and advocacy have been supported by numerous references which go into considerable detail about his actions and internal state. These references are also strengthened by, in most cases, including several references years apart from the same people, indicating, I think, such consistent presentation of the applicant in terms of his identity and advocacy as to put these things beyond doubt.
I have carefully considered whether the applicant activities in Australia, including his becoming a member of and then facilitator for [Organisation 1], work with [Organisation 2], marching in Mardi Gras with [Group] over consecutive years, other public marches and his speeches at various rallies and conferences were activities he engaged in solely for the purpose of strengthening his claims for protection. I do not think they are. Firstly I note the consistency and pattern of his engagement with the LGBTI community and his move from engagement in this area to his active advocacy in this area. I note also that he was able to clearly articulate that his involvement and identification had limits around the African Australian community and his church community. These limits are understandable given the sometimes conservative nature of these communities towards sexuality. And I note also his feelings of hurt and betrayal that his sexuality was revealed to these communities without his knowledge or consent. I note also that his activities are consistent with what I accept of his sexuality and self-identity. Lastly, I also note that the change of his involvement with the LGBTI asylum seeker community from identification and engagement to active advocacy is consistent, has been supported by numerous testimonies and is internally consistent. I find that the applicant has not engaged in the activities identified in Australia for the sole purpose of strengthening his protection claims but demonstrates his genuine sexual identity and engagement and advocacy with the LGBTI community.
I find that the applicant is a member of the particular social groups of homosexual men and LGBTIQ Activist in Sierra Leone.
Is there a real chance the applicant will suffer persecution for a s 5J reason if he returns to Sierra Leone?
I have found above that the applicant is a homosexual man. I have accepted that he was discreet in his homosexual relationship in Sierra Leone (including agreeing to marry and live with a woman), but that he did so because he feared the consequences if he was out. I find that since arriving in Australia the applicant has become more open in his sexuality, has engaged in several casual relationships with men, and has expressed his sexuality and identity in a variety of ways. I accept that he has attended Mardi Gras and other gatherings and marches, I accept that he has become a member of and a facilitator and leader of LGBTI groups, including speaking publicly about his experiences, identity and advocating for positive change. I also accept that his advocacy has been long running and durable. I accept that the applicant’s sexuality and advocacy has become known to the African Australian community and local church community.
I find that if the applicant returned now or in the reasonably foreseeable future to Sierra Leone, he would do so as a homosexual man who would be unwilling, and would also be unable, to hide his sexuality and advocacy. I find he would be unwilling because he has demonstrated to me that he has become comfortable and proud of his sexual identity, and he cannot be required to act discreetly or hide his sexuality in any way because it would, inter alia, conceal his true sexual orientation and conflict with his identity and advocacy, which I accept are fundamental to his identity and conscience. He would also be unable to do so because I accept that he may be identified as a homosexual man but I also accept that his continuing advocacy for the LGBTI community (which I accept he would be involved in on return) would identify and impute to him a homosexual identity.
Having accepted the above, the question therefore is whether there is a real chance of the applicant suffering serious harm amounting to persecution if he returns to Sierra Leone, now or in the reasonably foreseeable future.
According to DFAT, LGBTI issues are taboo across the ECOWAS region (including Sierra Leone), both officially and societally, and same-sex sexual activity between men is criminalised with a penalty of up to life in prison.[1] The United States Department of State Country Report on Human Rights Practices 2022 reports that LGBTQI+ advocates reported violence and blackmail against LGBTQI+ persons, estimating 17 cases of violence between January and September of that year.[2] This report also notes that the LGBTQI+ community faced challenges ranging from stigma and discrimination to denial of public services such as health care and justice, and while a few LGBTQI+ organizations supported the community, they maintained low profiles to protect their safety and identities.[3] ILGA reported in 2021 that the laws criminalising same-sex sexual activity between men had been used as justification for criminal enforcement despite the people not being charged or prosecuted, demonstrating an arbitrary use of the laws to suppress and intimidate.[4] Amnesty International notes that freedom of expression and freedom of assembly are constrained.[5]
[1] DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020.
[2] USDOS 2022 Country Reports on Human Rights Practices: Sierra Leone, Bureau of Democracy, Human Rights, and Labor.
[3] USDOS 2022 Country Reports on Human Rights Practices: Sierra Leone, Bureau of Democracy, Human Rights, and Labor.
[4] ILGA World: Kellyn Botha, Our identities under arrest: A global overview on the enforcement of laws
[5] Amnesty International, Amnesty International Report 2022/23: The state of the world’s human rights: Sierra Leone.
I also do not discount the personal testimony of the applicant. he faced social discrimination and ostracism from his family and community, he was attacked by a group in 2015. I accept that these events occurred as I find the applicant credible, and they are consistent with the above country information. In relation to the attack, I note that whilst I can find little country information about attacks on LGBTI persons by non-state actors this is not surprising and does not indicate that they are not present – the fact that same-sex sexual activity between men is criminalised would necessarily create a chilling effect on persons reporting attacks on them for reason of their LGBTI status, nor would such reports if they were made be considered significant enough to record.
Having regard to the applicant’s evidence, which I accept, and the available country information, I find that if the applicant were to return now or in the reasonably foreseeable future as a homosexual man and LGBTIQ activist, he would be identified as homosexual and an LGBTIQ activist, and he would face harm including harassment and arbitrary arrest from the authorities, attacks from non-state actors emboldened by the law and harassment, discrimination and ostracisms from his family, local community and society at large. I find that his membership of these particular social groups, together, will be the essential and significant reasons for the harm, because he will be identified as an outspoken homosexual man and activist for the LGBTIQ community and harmed by these actors for these reasons, and that therefore these reasons will be the essential and significant reason reasons for the harm, that this harm amounts cumulatively to serious harm involving serious mental and physical harm to the applicant on a sustained basis, and that the harm will involve systematic and discriminatory conduct because the persecutors will inflict those harms for something they identify or impute to the applicant and will do so on an ongoing basis.
I find that the real chance of harm extends to all areas of Sierra Leone, on the country information LGBTIQ issues are taboo societally and officially, the law criminalising same-sex sexual activity between men extends to all areas of Sierra Leone, and therefore the ability of non-state actors to harm the applicant with little or no fear of official sanction also extends to all areas, as does the societal stigma and discrimination. Effective protection measure are not, I find, available to the applicant because the State is not willing, on the country information before me, to offer such protection. For the reasons discussed above the applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution.
I find on all of the information before me that the applicant holds a well-founded fear of persecution for reasons of his membership of the particular social groups of homosexual men and LGBTIQ Activist in Sierra Leone from the authorities, his family and local community and Sierra Leonean society if he were to return to Sierra Leone now or in the reasonably foreseeable future.
Can the applicant enter and reside in a safe third country?
If a person can take steps to avail themselves 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, Australia is taken not to have protection obligations in respect of that person.
In the present case the applicant has no explicit right such as a passport or visa for another country. However, as a national of Sierra Leone, he has certain rights in the neighbouring countries in the Economic Community of West African States (ECOWAS).
The ECOWAS treaties and protocols provide for citizens of the member states a legal framework for the progressive implementation of rights of entry, residence, work and establishment.[6] However, there are challenges including non-harmonisation of national laws and policies with the treaties and protocols, restrictions on employment for non-nationals, harassment and extortion of money from non-nationals.[7] COVID-19 had a significant impact on freedom of movement and residence and the IOM reported that while many countries have reopened their borders, various health and travel restrictions remain and continue to have impacts on migration and mobility in the subregion.[8]
[6] 'Protecting refugees and other persons on the move in the ECOWAS space', International Organization for Migration (IOM) and United Nations High Commissioner for Refugees (UNHCR), 01 January 2011, CIS22697, p.23.
[7] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
[8] 'World Migration Report 2022', International Organization for Migration (IOM), 01 December 2021.
There are, therefore, I find, practical issues with whether the applicant could effectively avail himself of the right to enter and reside in the ECOWAS countries now or in the reasonably foreseeable future. I have considered this in my assessment of all the below countries.
This is compounded by the attitudes in the ECOWAS countries towards homosexual men and LGBTIQ activists.
As already noted, international observers report LGBTI (lesbian, gay, bisexual, transgender and/or intersex) issues are taboo across the ECOWAS region, both officially and societally.[9]
[9] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
DFAT reports that The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal, Sierra Leone and Togo all criminalise consensual same-sex sexual acts between adults and that in northern Nigeria, consensual same-sex sexual acts are punishable under sharia (Islamic law) with the death penalty.[10] DFAT goes on to note that Benin, Burkina Faso, Cote d’Ivoire, Guinea Bissau, Mali and Niger do not criminalise consensual same-sex sexual acts between adults, but also do not offer any specific protections.[11]
[10] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
[11] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.

Having regard to s 36(4)(a) of the Act, I find that there is sufficient information before me to indicate that the applicant would have a well-founded fear of being persecuted for reasons of his membership of the identified particular social groups if he were to seek to enter and reside in The Gambia, Ghana, Guinea, Liberia, Nigeria, Senegal or Togo.
Benin
Although consensual same-sex sexual acts between adults are not criminalised in Benin, LGBTQI+ NGOs report that LGBTQI+ persons face physical attacks and assaults, verbal abuse, and many other forms of intimidation, discrimination and hostility, with such treatment being perpetrated by nonstate actors but tolerated by police.[12] LGBTI activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTI in Benin.[13]
[12] USDOS 2022 Country Reports on Human Rights Practices: Benin, Bureau of Democracy, Human Rights, and Labor.
[13] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
Discrimination against LGBTQI+ persons has been described as common and LGBTQI+ persons reported being routinely refused medical care and social services.[14] In December 2021, the government’s Benin Human Rights Commission, issued a report expressing concern for the rights of vulnerable groups including the LGBTQI+ community, girls and women, persons with disabilities, and persons with albinism.[15]
[14] USDOS 2022 Country Reports on Human Rights Practices: Benin, Bureau of Democracy, Human Rights, and Labor.
[15] USDOS 2022 Country Reports on Human Rights Practices: Benin, Bureau of Democracy, Human Rights, and Labor.
On the basis of the above information and having regard to ss.36(4)(a), I find that there is more than a remote chance that the applicant, as a homosexual man, and as an LGBTIQ Activist from Sierra Leone residing in Benin that the applicant would come to the attention of non-state actors who would seek to harm the applicant, and the authorities would tolerate this. I note that not being a national of the country would also necessarily distinguish the applicant which would provide greater opportunity for would-be persecutors to single him out and target him for harm. I find therefore that the applicant has a well-founded fear of being persecuted for reasons of his membership of those particular social groups in Benin and therefore that s. 36(3) does not apply to the applicant in relation to Benin.
Burkina Faso
Whilst no laws criminalise same-sex sexual activity in Burkina Faso, there have been reports of prosecutions of LGBTI individuals which appear to have been motivated by their sexual orientation.[16] Violence against LGBTI persons went unpunished and largely unreported and LGBTQI+ rights advocacy groups often counselled members of the community to conceal their sexual orientation or gender identity, to protect them from violence.[17] LGBTQI+ persons faced discrimination in access to health care, employment, housing, and spaces for social gathering and members of the LGBTQI+ community were fired from their jobs, both in the private sector or government, when employers became aware of their sexual orientation.[18]
[16] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
[17] USDOS 2022 Country Reports on Human Rights Practices: Burkina Faso, Bureau of Democracy, Human Rights, and Labor.
[18] USDOS 2022 Country Reports on Human Rights Practices: Burkina Faso, Bureau of Democracy, Human Rights, and Labor.
On the basis of the above information and having regard to ss.36(4)(a), I find that there is more than a remote chance that the applicant, as a homosexual man, and as an LGBTIQ Activist from Sierra Leone residing in Burkina Faso would face prosecution by the authorities and/or come to the attention of non-state actors who would seek to harm the applicant, and the authorities would tolerate and condone this. I note that not being a national of the country would also necessarily distinguish the applicant which would provide greater opportunity for would-be persecutors to single him out and target him for harm. I find therefore that the applicant has a well-founded fear of being persecuted for reasons of his membership of those particular social groups in Burkina Faso and therefore that s. 36(3) does not apply to the applicant in relation to Burkina Faso.
Cabo Verde
Cabo Verde is considered one of the most liberal countries in the ECOWAS group towards LGBTQI+ persons. There were no reports of violence towards LGBTQI+ individuals and anti-discrimination laws on the basis of sexual orientation exist and were generally enforced.[19] The laws do not criminalise same-sex sexual activity and Cabo Verde offers employment protections to LGBTQI+ persons.[20]
[19] USDOS 2022 Country Reports on Human Rights Practices: Cabo Verde, Bureau of Democracy, Human Rights, and Labor.
[20] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
However, the country information indicates that there are considerable difficulties for ECOWAS member countries’ citizens who seek to enter and remain in Cabo Verde. The country information may indicate that this is particularly acute for persons who are known to be protestors or activists or who take part in demonstrations or other public displays of political opinion. Cabo Verde has regulated entry of citizens from the ECOWAS member countries.[21] There are also reports that Cabo Verde returned a significant number of nationals of ECOWAS countries.[22] Cabo Verde does not have a formal asylum process.[23] Of particular concern, Cabo Verde restricts the rights of migrants to participate in demonstrations.
[21] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
[22] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
[23] Devillard, A., Bacchi, A., and Noack, M., ‘A Survey on Migration Policies in West Africa‘ ICMPD and IOM, March 2015; 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
On the information before me, and taking into account the profile of the applicant as an activist for homosexual rights, I find that there is a reasonable chance that the applicant may be denied entry to Cabo Verde. More significantly, taking into account the country information and his profile, I find that the applicant would have a well-founded fear that Cabo Verde would return the applicant to Sierra Leone, where as above I have found that he would be persecuted for reasons of his membership of the identified particular social groups.
I find therefore that s 36(3) does not apply to the applicant in relation to Cabo Verde.
Côte D’Ivoire
LGBTI activists have reported recent cases of prosecutions of LGBTI individuals in Côte D’Ivoire seemingly motivated by their sexual orientation, despite the fact that the country does not criminalise consensual same-sex sexual acts between adults.[24] Violence against LGBTI persons went largely unpunished and unreported and there were reports of corrective rape against homosexual men, and LGBTQI+ persons faced discrimination in access to health care and housing.[25]
[24] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
[25] USDOS 2022 Country Reports on Human Rights Practices: Côte D’Ivoire, Bureau of Democracy, Human Rights, and Labor.
On the basis of the above information and having regard to ss.36(4)(a), I find that there is more than a remote chance that the applicant, as a homosexual man, and as an LGBTIQ Activist from Sierra Leone residing in Côte D’Ivoire would face societal violence and/or come to the attention of non-state actors who would seek to harm the applicant, and the authorities would tolerate and condone this. I note that not being a national of the country would also necessarily distinguish the applicant which would provide greater opportunity for would-be persecutors to single him out and target him for harm. I find therefore that the applicant has a well-founded fear of being persecuted for reasons of his membership of those particular social groups in Côte D’Ivoire and therefore that s. 36(3) does not apply to the applicant in relation to Côte D’Ivoire.
Guinea Bissau
Civil society activists reported acts of violence against LGBTQI+ persons.[26] There are no specific protections for LGBTI+ persons in Guinea Bissau.[27]
[26] USDOS 2022 Country Reports on Human Rights Practices: Guinea Bissau, Bureau of Democracy, Human Rights, and Labor.
[27] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
On the basis of the above information and having regard to ss.36(4)(a), I find that there is more than a remote chance that the applicant, as a homosexual man, and as an LGBTIQ Activist from Sierra Leone residing in Guinea Bissau would face societal violence and/or come to the attention of non-state actors who would seek to harm the applicant, and the authorities would tolerate and condone this. I note that not being a national of the country would also necessarily distinguish the applicant which would provide greater opportunity for would-be persecutors to single him out and target him for harm. I find therefore that the applicant has a well-founded fear of being persecuted for reasons of his membership of those particular social groups in Guinea Bissau and therefore that s. 36(3) does not apply to the applicant in relation to Guinea Bissau.
Mali
LGBTI activists have reported recent cases of attacks by civilians and police on individuals perceived to be LGBTI in Mali.[28] According to local NGOs focused on human rights, LGBTQI+ persons experienced physical, psychological, and sexual violence, which society viewed as “corrective” punishment, police frequently refused to intervene when such violence occurred, and anecdotal evidence suggested LGBTQI+ persons were at risk of violence if their status became known.[29]
[28] 'DFAT Thematic Report - Economic Community of West African States (ECOWAS)', Department of Foreign Affairs and Trade, 03 December 2020.
[29] USDOS 2022 Country Reports on Human Rights Practices: Mali, Bureau of Democracy, Human Rights, and Labor
On the basis of the above information and having regard to ss.36(4)(a), I find that there is more than a remote chance that the applicant, as a homosexual man, and as an LGBTIQ Activist from Sierra Leone residing in Mali would face violence from the authorities and/or come to the attention of non-state actors who would seek to harm the applicant, and the authorities would tolerate and condone this. I note that not being a national of the country would also necessarily distinguish the applicant which would provide greater opportunity for would-be persecutors to single him out and target him for harm. I find therefore that the applicant has a well-founded fear of being persecuted for reasons of his membership of those particular social groups in Mali and therefore that s. 36(3) does not apply to the applicant in relation to Mali.
Niger
Whilst the law prohibits discrimination against LGBTQI+ persons in such areas as housing, employment, and access to government services, gay men and lesbians experienced societal discrimination and social resentment.[30]
[30] USDOS 2022 Country Reports on Human Rights Practices: Niger, Bureau of Democracy, Human Rights, and Labor
Even were I to be satisfied that the applicant was able to reside in Niger without facing persecution, I find that the July 2023 military coup in Niger means that there are significant practical difficulties with the applicant, as an ECOWAS citizen, entering and residing in Niger. ECOWAS countries have closed their air and land borders to Niger,[31] have imposed sanctions on Niger and have threatened to militarily intervene, despite claims from the coup leaders of a rapid agreement that has not eventuated.[32] On the basis of this information I find that the applicant cannot enter and reside in Niger now or in the reasonably foreseeable future given the suspension of relations between Niger and other ECOWAS countries. I find therefore that s. 36(3) does not apply to the applicant in relation to Niger.
Conclusions on 36(3)
[31] Yabi, G., ‘The Niger Coup’s Outsized Global Impact’ 31 August 2023, Carnegie Endownment for International Peace.
[32] Felbab-Brown, V., ‘After the ECOWAS ultimatum, what’s next for Niger?’, 8 August 2023, Brookings Institute; France 24, ‘Niger’s post-coup PM hopes for rapid ‘agreement’ with ECOWAS’, France 24, 4 September 2023.
As noted earlier, the pandemic led to the imposition of practical impediments to the free movement of ECOWAS citizens. The bloc has not fully recovered. When taken with the concerns with the treatment or possible refoulement of a person with the attributes of the applicant in each of the countries of ECOWAS, I find that the applicant is not able to avail himself of a right to enter and reside in any of the ECOWAS countries.
Conclusion
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Sean Baker
Member

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

criminalising consensual same-sex sexual acts between adults and diverse gender expressions
(Geneva: ILGA, December 2021), Sierra Leone section.

[2023] AATA 4132

6 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction