1824913 (Refugee)

1824913 (Refugee) [2023] AATA 4768 (12 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824913
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Peter Haag
DATE:12 November 2023
PLACE OF DECISION:  Melbourne
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 12 November 2023 at 2:05pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – particular social group – single woman – single mother – female subjected to female genital mutilation (FGM) – expected to assume leadership role in Bondo society – expected to promote and sustain tradition of FGM – applicant’s opposition to FGM – FGM widespread across ECOWAS region – impracticable for applicant to relocate with son within Sierra Leone and in ECOWAS region – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 17 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 3 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 8 November 2023 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
Joint hearing
The applicant, on behalf of her son, [Son 1], who was born in Australia [in] 2018, lodged his application for a protection visa. The delegate of the Minister refused his application on 30 July 2019. [Son 1]’s mother, acting as his responsible parent, applied to the Tribunal for a review of his application: reference Tribunal case file number is 1921184. [Son 1] was present at the outset of the hearing. Considering his young age, the Tribunal determined he is too young to understand the nature of an oath or affirmation. After discussions with the applicant, it was evident and the applicant accepted that the outcome of her son’s application depended on the Tribunal’s decision in respect of her application, and a finding that he is a member of her family unit.
The applicant’s accepted the obvious proposition that her son had no evidence to give in support of his own application.
In the absence of objection, and with the express consent of the applicant, the Tribunal determined to treat the evidence of the applicant as evidence in respect of her own application and the application of her son, [Son 1].
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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their 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 the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
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 (DFAT) 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 is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s background
In her protection visa application, the applicant claims to be a citizen of Sierra Leone, born on [date] in [Town 1], Sierra Leone. She claims to be an ethnic [deleted] of Muslim faith who can speak Krio and speak, read and write in English.
The applicant has a son, who is a citizen of Sierra Leone, born in Australia [in] 2018.
The applicant provided details of [siblings] and her mother, who are all citizens of Sierra Leone residing in Sierra Leone at the time of her visa application.
At the time of her visa application, the applicant was residing in [NSW], Australia. She did not provide details of any previous residential addresses in her visa application.
At the time of her visa application, the applicant was not employed. She did not provide details of any previous employment in her visa application.
The applicant did not provide details of any education or qualifications in her visa application.
Applicant’s identity
The applicant provided the Department with a copy of her Sierra Leonean passport.
The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Sierra Leone, and as such her protection claims will be assessed against Sierra Leone as the country of reference and ‘receiving country’ respectively.
Migration history
[In] May 2017 the applicant travelled to [another country] to [compete].
[In] March 2018 the applicant arrived in Australia on a Temporary Activity (GG-408) visa.
On 3 May 2018 the applicant lodged an application for a protection visa and on 17 August 2018 the delegate for the Minister refused her protection visa application.
On 27 August 2018 the applicant lodged an application with the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The applicant submitted her claims for protection in the following statement attached to her protection visa application lodged on 3 May 2018:[1]
[1] Department file [number], Doc ID 4677899.
This is just a short statement of some of the reasons I fear returning to Sierra Leone. Because I have been unable to access legal assistance before lodging my application, I request the opportunity to have an interview to provide more information.
I was born in [Town 1] in the north and I grew up there.
My mother lived in the village and I used to go and visit her there.
My grandmother also lived in the village. She was a leader in the Bonda society - the women's society. My grandmother used to tell me that I will be her successor as the head of the society. When I was young, I was forced to join the society. As part of the initiation, I had to go to the forest and spend time with animals. I also had to undergo FGM and I remember they held my head under water. It was very scary.
When my grandmother passed away in early 2017, the society people started coming after me saying I must be her successor as the head of the society. They said that was the arrangement they had with my grandmother.
My mother was also pressuring me to accept their request. My mother was also a member of the society but not the head.
I didn't want to be the leader because I would be responsible for pressuring other people to join the society. I didn't want to do that because I remembered what that was like when I was young.
My mother tried to take me to another village but I escaped and ran away from my mum to the city. I didn't know anyone there, but I met a young man called [Mr A]. I explained the situation to him. He said he would look after me. I lived with him.
[Mr A] was a [sports] coach. I had always been good at [the sport] but it was only then that I discovered that I had talent. I started training with the national team. I participated in the [trials] and found out I had the opportunity to come to the Commonwealth Games. I was very happy that I would be able to escape from the pressure.
When I was at the Commonwealth Games, I found out I was pregnant. I think the father is a man I knew in Sierra Leone.
I called my mother to tell her about the news. But when I told her, she shouted at me. She said "Do you know what you have done?". She said that my child will be used as a sacrifice and I could be killed as well, because the person who is head of the Bonda society is not supposed to be pregnant.
I am afraid of going back because I fear for my life and for the life of my unborn child. For these reasons, I am asking for you to protect me.
On 21 May 2018 the applicant attended an interview with the Department.[2]
[2] Ibid, Doc ID 4677908.
[In] 2018 the applicant provided the Department with a series of medical reports dated [date], including blood tests and an ultrasound report confirming her pregnancy.[3]
[3] Ibid, Doc ID 4677911.
On 23 September 2023 the applicant provided the Tribunal with a copy of her protection visa refusal decision record.
Consideration of the claims and evidence
According to the applicant’s oral evidence at hearing, she asserts her grandmother had a leadership role in the Bondo society. Before she passed away, she required the applicant’s mother, and member of the Bondo society, to make a promise that the applicant would become a member and leader of other women in maintaining the family and community tradition of female genital mutilation (FGM). As the Tribunal understood the applicant’s evidence, as a member of the next generation of young women in her family, village and community, her leadership role amounted to adopting from her grandmother and mother, as a mission in life, energetically and actively, propagating and sustaining the practice of FGM, an intergenerational tradition in her family, and in her home village and district, and in due course participating in FGM.
To the extent that the applicant’s written application and the answers she gave during the Departmental protection visa interview (PVI) on 21 May 2018 conveyed the impression that she was required to take a formal leadership position in an organisation known as the Bondo society, the Tribunal prefers the substance of the evidence the applicant gave on that subject at hearing, which, in the opinion of the Tribunal, is materially consistent with her written claims and the answers she gave during the PIV.
According to country information available to the Tribunal, the Bondo society is widely known in Sierra Leone. It comprises females who have undergone FGM, which is also known was Bondo.[4] The term Bondo is widely used to describe women who have undergone FGM and who practise FGM.[5] This information is consistent with the applicant’s evidence and the relevant parts of the DFAT Thematic Report – Economic Community of West African States (ECOWAS) – December 2020 (DFAT report). Sierra Leone is a member state of ECOWAS.
[4] ‘Female genital mutilation (FGM)’ World Health Organisation, 2013 CIS7B83941817; ‘Country Report on Human Rights Practices 2016 – Sierra Leone’ US Department of State, 03 March 2017, p18, OGD95BE926937; ‘What is female genital mutilation. Where does it happen.’ Thompson Reuters Foundation, 06 February 2018, CXBB8A1DA21447; ‘Country Profile FGM in Sierra Leone’ 28 Too Many, June 2014, p53, CIS28825
[5] Ibid
The DFAT report states human rights observers report discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region, often grounded in cultural traditions and formalised by law. FGM of women and girls is viewed as traditional practice and it is widespread across the ECOWAS region.[6] DFAT also states that in‑country sources report police routinely return to their families women and girls who flee their community to avoid FGM.[7]
[6] DFAT report [2.16].
[7] Ibid [2.16].
At hearing, the applicant gave evidence about her experience of FGM. She said the experience was highly traumatic and it was difficult for her to speak about it. She steadied herself, and said she knows she must speak about it at the hearing. The applicant said it occurred during a school holiday period. The applicant’s mother apologised to her before the ‘procedure’ was performed but justified forcing FGM on her by saying FGM is traditional. The applicant was taken to a building where her mother and other women forced her to undergo the ‘procedure.’ Her finger was broken while she was being held down on her back. The applicant said she was not given an ‘injection’ and she felt everything. The applicant described the instruments she saw. The applicant gave additional evidence about her experience, however, it is unnecessary to specify that evidence in these reasons.
In evidence, the applicant said the experience traumatised her both physically and emotionally. The fact that her mother forced the experience upon her destroyed their mother‑daughter relationship. The applicant said she tried to put the experience out of her mind, but it returns to her, and she wishes it did not happen. According to her evidence, it is not possible for her to live with her mother ever again. She occasionally speaks to her mother, if her sister is visiting her mother and her mother is present at that time, but the mother‑daughter relationship is irreversibly broken.
According to the Tribunal’s understanding of the applicant’s evidence, the applicant’s mother and her female friends still practise FGM, and they would expect the applicant to continue that practice; they would persistently pressure her to do so if she returned to her home village. The applicant said this circumstance would be impossible for her to accept and endure. This is an additional reason the applicant asserts she could not return to her mother’s home, her village, and her home district, if she is removed to Sierra Leone.
The applicant’s evidence, considered in conjunction with the cited country information about the practice of FGM in Sierra Leone, is sufficient to establish to the satisfaction of the Tribunal that the applicant was forcibly subjected by her mother and other women to FGM; the experience ruined the mother-daughter relationship; the applicant would be expected to propagate FGM if she returned to her mother’s home, her home village or home district, where she would be readily recognised as a former member of the national [sports] team.
On balance, the Tribunal is satisfied it would be impracticable for the applicant to relocate to her mother’s home; home village; and home district, if she is removed to Sierra Leone now or in the reasonably future.,
It is necessary to further consider the DFAT report relating to current circumstances in Sierra Leone.
The ECOWAS treaty was signed on 29 May 1975. Its purpose was to better regulate migration and promote regional economic integration among West African states, including Sierra Leone. Member states signed a revised agreement in July 1993 that aimed to strengthen intra-regional economic and political integration and regional unity across national and linguistic borders.[8]
[8] Ibid [3.1]
The ECOWAS treaty governs regional migration including the Right of Entry, the Right of Residence, and the Right of Establishment.[9] The meaning of these Rights is self‑evident. The DFAT report elaborates on the meaning of each of these Rights,[10] however, the Tribunal is of the opinion it is unnecessary to rehearse the elaborations in these reasons, and it is sufficient to recognise the existence of these statements of Rights in the ECOWAS treaty (as amended).
[9] Ibid [3.2]
[10] Ibid [3.33]
Notwithstanding the existence of these Rights, their implementation and consistent application across member states has been problematic,[11] and, consistently with the DFAT report, may be reasonably characterised as a ‘work in progress.’
[11] Ibid [3.4]–[3.8]
Relevantly, according to the DFAT report, although the Right of Entry across the member states is allowed, there are now specific programmes driving the realisation of the ECOWAS common approach to migration.[12] Additionally, the ECOWAS treaty suggests migrants and nationals of member states have equal opportunities; in practice, member states serve to prevent migrant workers from entering many economic sectors.[13] In most member states, national labour legislation does not set specific provisions for access to employment by ECOWAS citizens, which jeopardises the implementation of the Right of Residence.[14] Resistance from influential member states, particularly Nigeria, has hindered progress in implementing the ECOWAS’ mandate.[15] This impediment is exacerbated by ECOWAS suffering severe shortages of staff and human capacity, which impedes ECOWAS’ ability to run its programmes and implement its mandate effectively.[16]
[12] Ibid [3.5]
[13] Ibid [3.6]
[14] Ibid [3.6]
[15] Ibid [3.8]
[16] Ibid [3.7]

The cited country information is relevant to the issue of whether it would be reasonably practicable for the applicant, to relocate away from her home country to another ECOWAS member state. Relevantly, the applicant is unmarried and had a child to a man to whom she was never married, and who, according to her evidence, ‘dumped her’ about 3 years ago. He disconnected his telephone number and did not provide the applicant with any other contact details prior to moving from Sierra Leone to [another country] 3 years ago.
The applicant has only limited education, having left school while she was in her [specified] year of her secondary education, and without sitting the national examination. She made this decision to enable her to focus all her energies on advancing her [sporting] career.
Given the evidence about the applicant’s personal profile (a matter that will be further considered in these reasons) and country information discussed in these reasons about the operation of the ECOWAS treaty (as amended), the Tribunal is satisfied it would be reasonably impracticable for the applicant, with her dependent 5 year old son, to relocate outside Sierra Leone, to another ECOWAS country and subsist there with her dependent son.
According to the applicant’s evidence and the cited country information, she was so traumatised by the FGM imposed on her by her mother, and as the practice of FGM is widespread in Sierra Leone, the applicant would, perforce of her own trauma, be impelled to reject and oppose FGM no matter where she was living in Sierra Leone, and by necessary implication, she contends she would be largely ostracised by FGM practitioners and proponents of that longstanding widespread cultural practice.. On balance, the evidence establishes to the satisfaction of the Tribunal that the only location the applicant is somewhat familiar with, and to which it would be reasonable to expect her to relocate, and potentially, to reintegrate into life with her son and endeavour to subsist, is the national capital, Freetown.
If the applicant were removed to Sierra Leone, she would return to an ECOWAS country without the benefit of oil revenue, which is available to the governments of several ECOWAS states, but where poverty is a continuous major challenge throughout the ECOWAS region.[17] More than half of EOCWAS’ population lives on less than one US dollar a day.[18] Unemployment and underemployment are both very high across the ECOWAS region.[19]
[17] Ibid [2.6].
[18] Ibid [2.6]
[19] Ibid [2.7]
Into this economic and social setting, the applicant would return as an unmarried woman who had a child outside of marriage; she is relatively uneducated in her home country, and there is no evidence she possesses skills that would be in demand in Sierra Leone. Additionally, the applicant would be the sole carer of her young dependent son.
According to the applicant’s evidence, her brother [now] lives in [another country], and he is married and supporting two children. He does not have the capacity to support her. Her other siblings are either school students, or tertiary students, dependent on family support and unable to assist her to reintegrate into life with her son in Sierra Leone, and, more specifically, Freetown.
According to the applicant’s evidence, the employment that she may be regarded as being qualified to undertake would be cleaning, housework, carer work, or similar labour‑intensive work. The evidence and cited country information suggests that competition for all forms of employment, in the context of high unemployment and underemployment, indicates it is reasonably likely the applicant would face high competition for any employment she applied for to subsist with her son in Sierra Leone.
In substance, the applicant asserts that factors personal to her would mean she would suffer undue negative discrimination by potential employers, who would prefer to employ workers who present as both reliable and socially acceptable in the workplace.
The applicant said in applying for work she would not conceal her identity. Part of her identity is that she is a single mother, solely responsible for caring for her young son. This would result in her presenting, relative to other applicants for the same employment, as a woman likely to be unreliable in her work attendances and focus on her employment. The applicant also contends it is likely she would be disrespected by other employees because she broke the social taboo of sex outside of marriage, and by having an illegitimate child to a man who ‘dumped her’ and their son.
The applicant asserts the risk of workplace disharmony arising from her presence would be apparent to any potential employer, and it is an additional factor that would be likely to cause her to suffer undue discriminatory exclusion from employment, in the context of high unemployment and underemployment, and by necessary implication, where employers would appreciate that they would be better served by employing someone who does not have the applicant’s personal profile.
The applicant also said in evidence if she lied about having a son for whom she is wholly responsible, her deception would soon be discovered, because inevitably her duty to her child would encroach upon her work time. Relevantly, the applicant also indicated that her son, who has never lived in Sierra Leone, would need a high degree of support to integrate into the community. He would be ridiculed at school and by his peers because he is an illegitimate child who does not know his father; and by necessary implication, he would be highly dependent on the applicant and her time for the reasonably foreseeably future in Sierra Leone. This factor would make it more likely that her parenting duty to her son would encroach on her work time and, as the applicant put it in evidence, her reliability.
The applicant gave evidence about her prospects of resuming her [sporting] career in her home country. She is now [age] years of age. She has not trained or competed since the Commonwealth Games. She would not be able to focus on training and competition and care for her son on her own. The applicant also indicated she would need to find a sponsor, and the sponsor would have to be willing to provide for her and her son, while she trained and endeavoured to achieve a standard, after 5 years away from the sport, sufficient to regain her place in the national team. In essence, the applicant thought this was an unlikely prospect, and in the opinion of the Tribunal, the applicant’s opinion seems to accord with common sense.
It is relevant to recall here that the DFAT report states human rights observers report that discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region (paragraph [35]) in circumstances that are consistent with the applicant’s assertion that her personal profile, being a single woman who never married, who gave birth to an illegitimate child; a woman limited by her low level of education, would suffer negative discrimination when applying for employment in Sierra Leone.
Findings
The Tribunal is satisfied the applicant was subjected to FGM. The Tribunal is also satisfied that the part the applicant’s mother played in facilitating her genital mutilation has caused an irreparable breakdown in the applicant’s relationship with her mother.
The Tribunal is also satisfied the applicant would actively and openly defy her family expectations and the expectation of the society of women throughout Sierra Leone who have undergone FGM, including FGM practitioners, and others who actively or passively sustain the practice of FGM, and that her defiance is reasonably likely to lead to her being ostracised by her mother, and the widespread female community of Bondo women throughout Sierra Leone, and leave her largely bereft of female support, in circumstances where, according to the DFAT report, discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region.
The Tribunal is also satisfied it would be reasonably impracticable for the applicant to relocate with her son to a member state of ECOWAS other than Sierra Leone. Furthermore, the Tribunal is satisfied it would be reasonably impractical for the applicant to relocate to any part of Sierra Leone other than Freetown, to live and reintegrate into life with her son and to subsist.
The Tribunal is satisfied the applicant would suffer undue and significant negative discrimination by prospective employers in Freetown, and in all areas of the country to which it may be considered practicable for the applicant to relocate and to subsist, for the reason of her personal profile, as described by the Tribunal in these reasons.
The evidence considered in conjunction with the cited country information is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance that the applicant’s personal profile would cause a real chance of serious harm, being serious economic hardship that threatens her capacity to subsist[20] in Freetown, and that chance of serious harm relates to all areas of the receiving county.
[20] The Act, s 5J(5)(d)
Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in conjunction with the cited country information, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm by non-state actors for the reason of membership of a particular social group, being single mothers with highly dependent illegitimate children and who have little prospect of securing and maintaining employment sufficient to sustain themselves and their children, that being a reason that meets the provisions of s 5J(1)(a) of the Act, if she is removed to Sierra Leone now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
The Tribunal is also satisfied the real chance of serious harm for the reason of her membership of a particular social group, is the essential and significant reason for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct because of her membership of the identified social group, and that the real chance of serious harm, as defined,[21] relates to all areas of the receiving country.
[21] Ibid s 5J(5)(d)
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely membership of a particular social group, and that the applicant meets the definition of refugee as set out in s 5H of the Act.
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) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Haag
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.
…

[2023] AATA 4768

12 November 2023

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice