1825727 (Refugee)

[2023] AATA 4401

1825727 (Refugee) [2023] AATA 4401 (5 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Oumaru Kamara (MARN: 1793080)

CASE NUMBER:  1825727

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Roslyn Smidt

DATE:5 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 5 October 2023 at 2:57 PM

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – secret societies – Bambanie/Gbagbani – refused to undergo initiation – credibility concerns – implausibilities – inconsistencies – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who is a citizen of Sierra Leone, applied for the visa on 4 May 2018. The delegate refused to grant the visa on the basis that she found most of his claims lacked credibility and his fear of harm was not well-founded.

3. The applicant appeared before the Tribunal on 16 August 2023 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    BACKGROUND

11. The applicant is a [age]-year-old man of Muslim faith and Loko ethnicity from Sierra Leone. He is married and has [number] children. He obtained a passport [in] 2018. On 17 February 2018 he obtained a temporary activity visa to attend [Event 1] as a [Occupation 1]. He departed Sierra Leone [in] March 2018 and arrived in Australia [in] March 2018. He applied for protection on 4 May 2018.

    ABILITY TO PROVIDE EVIDENCE

12. The applicant provided a medical certificate from [Dr A] in July 2020, which suggested that he had been experiencing some psychological issues. At the hearing I asked why he had provided this form. He said that it was provided to confirm that he had an injury to his foot. I noted that it also suggested that he had been experiencing psychological issues. He said that he had experienced trauma. I asked if he felt able to answer my questions during the hearing. He said that he would be able to do so.

    LANGUAGE

13. In the application form lodged on 4 May 2018, the applicant requested a Krio interpreter for his hearing. A Krio interpreter was arranged. It quickly became obvious that the interpreter’s abilities were limited. He repeated much of what I said in English. When I observed that he appeared to be using a significant amount of English, he said that this was because the English had colonised Sierra Leone. I attempted to proceed with his assistance, but he continued to use a significant amount of English, some of which included statements that I had not made.

14. In most cases I would have ended the hearing at that point and arranged for another interpreter. However, I am aware that there are extremely few Krio speaking interpreters in Australia. According to the applicant’s initial application he can speak, read and write English. At the hearing he confirmed that English was the language of instruction in Sierra Leone schools. He also confirmed that he could speak English and was able to understand me. I asked if he would be prepared to proceed in English and rely on the interpreter to assist if required. He agreed to this arrangement. His representative raised no objections.  I advised him that he should advise me immediately if he had any difficulty understanding me and to use the interpreter as necessary.

15. The hearing was then conducted in English. At no time did the applicant suggest he was having difficulty with the language and there was nothing which suggested that he had difficulty understanding me or responding to my questions because of language problems. On the contrary, he appeared to be very competent in the English language.

    CLAIMS AND EVIDENCE

    Application lodged on 4 May 2018

16. The applicant said that he was born in Freetown and attended school there until 1994. In 1996 he moved to [Village 1], in [Name 1] Chiefdom[1]. He returned to Freetown in January 2018 and resided there until March 2018. In the section dealing with employment, he said that he had done odd jobs for friends, including cleaning and photography, while living in Sierra Leone.  He commenced a relationship with the woman who was to become his wife in 2007. They married in Freetown in June 2015.

    [1] The town or village in which the applicant claims to have resided has been recorded as [Village 1] and [Village 1 variant]. As noted below, the former appears to be a small village in the Bombali District in Northern Province. I was unable to find any reference to [Village 1 variant] or [Name 1]. These appear to be different spellings, not different locations.

17. In answer to questions regarding his reasons for seeking protection, the applicant said that he had been heavily assaulted by members of a secret society who were attempting to force him to become a member because he had exposed what they had done to him. Because they wanted to kill him, he fled from his home and made his way to Freetown. The father of an old school friend helped him with accommodation and money for medicines.  While in Freetown, he continued to receive messages stating that members of the society were still looking for him.

18. The applicant said that secret societies could do what they liked in Sierra Leone, so he was not safe anywhere and the authorities could not protect him.  He said that he was unaware of the current whereabouts of his wife and children.

    Statement dated 2 May 2018

19. The applicant said that his father had died when he was [age] years old [in about 1990] and his mother when he was [age] [in about 1992]. After that he lived with an aunt. Before his father died, he told the applicant he had been involved with a secret society called the Bambanie[2], which was involved with traditional cultural practices. His father supported the society but the applicant disagreed with the attitudes and practices of the group.

    [2] I could not find any reference to this society. According to the newspaper article and statement signed by [Mr B], the society was called Gbagbani.   Reports confirm the existence of a secret society called Gbagbani or Gbangdani in Sierra Leone. It appears that this may be the society to which the applicant refers in his application using a different spelling. Nevertheless, I have used the applicant’s spelling in this decision.

20. In December 2017, members of the society broke into the applicant’s home and took him to a location in the bush where human heads were hanging. They told him that he had to join the group because he was the first son of his father. They beat him and forced him to eat human flesh and to take traditional medicines. He said that he was a Muslim and did not want to join the group, but they continued to abuse him. Then they released him.

21. After he was released, he tried to expose the group by speaking to anyone who would listen. The group took revenge by arranging for a woman’s group called Bodor to take his daughter to the bush with the intention of circumcising her. He was not at home when she was taken. When he returned home his wife told him what had happened. He ran into the bush to rescue her. He forced his way past a barrier intended to keep men out. A group of people attacked him with sticks, badly injuring his foot and hand. He pushed them away, took his daughter and returned to his home in the village. He told his wife to take their children and run away. He has not seen them since that time.

22. The applicant went into hiding in Freetown. His friend warned him that members of Bambanie and Bodor were looking for him because they wanted to kill him. He told people his life was in danger and showed them his scars so they applied for a passport for him and helped him to leave the country.

    The delegate’s interview on 28 May 2018

23. According to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant stated that he was wanted by the Bambanie society because his father had been a senior member. According to the delegate, when asked for information about the society and the duties of members, his answers were vague, limited and conflicting.

24. The delegate observed that the applicant’s father had died more than 20 years ago, which suggested he had been wanted by the society for many years. The applicant said that he had avoided initiation for many years because one of his uncles would regularly tell him when the initiation week was approaching, which allowed him to hide. However, his uncle was not able to protect him forever. He said that he had some issues with the group when he was a child, but despite being asked for details he failed to provide further information regarding these issues.

25. The applicant said that in December 2017 he was taken to a place where there were human skulls and forced to eat human flesh mixed with leaves. He escaped or was released before the initiation ceremony was completed.

26. The applicant repeated the claim that his daughter was taken by the Bodor and that he had rescued her. According to the delegate, his account of this event was vague and lacked the detail normally associated with describing a personal experience.

27. The applicant said that because of his problems with the Bambanie, he had run from house to house while in Sierra Leone. The delegate noted that, according to his application, he had only lived at three addresses in Sierra Leone, one until 1996, the next until 2018 and the third for two months prior to his departure for Australia. He said that the information in his application was correct, but also repeated that he had run from house to house every year.

    The delegate’s decision

28. The delegate accepted that the applicant’s father was involved with the Bambanie society and that he opposed the beliefs and practices of the Bambanie and Bodor societies. However, she did not accept that he was initiated by the Bambanie society or that his daughter was abducted by the Bodor society or that he feared harm from either group.

29. In reaching this conclusion, the delegate referred to country information, which stated that traditional secret societies were common in Sierra Leone and that the oldest son of a member was generally expected to join and take on the position previously held by his father. According to the information, initiation usually occurs around adolescence in preparation for adulthood. She noted reports that people who refuse to be initiated by the society can face significant problems, including the possibility of being killed, and that some are forced to go into hiding because of this. She also noted she was unable to find any reference to the Bambanie secret society but had located information on the Gbagbani society. 

    Submissions to the Tribunal

30. On 14 September 2020, the applicant’s representative provided a copy of the statement dated 2 May 2018 and several documents, including:

    ·     A letter from [Dr C], [Hospital 1], Freetown dated 20 January 2018 addressed “to whom it may concern”.  It states that the applicant had been admitted to hospital with an injury to his lower right leg, which was sustained during an assault in [Village 1] Chiefdom, Bombali District on 2 January 2018. He received a skin graft and was under observation for three weeks. During this time, his dressings were changed daily. The letter appears to suggest that he had recently been discharged.

    ·     A medical report from [Dr A], GP, dated 20 July 2020, which states that the applicant had repeated his claims regarding his alleged problems in Sierra Leone. It confirms that his right ankle showed skin damage covered by a skin graft. It also states that he reported a number of symptoms associated with trauma.

    ·     UK guidance for travel to Sierra Leone during the COVID-19 pandemic dated July 2020. It notes that most visits to Sierra Leone are incident free, but there have been a small number of reports of robbery at knife point and there have been some terrorism incidents in the past.

    ·     A copy of an article entitled [Title], in [Newspaper 1] dated [in] January 2018.  It states that the Gbagbani society is the most feared secret society in Sierra Leone and that anyone who has gone through initiation must maintain an oath of secrecy or face death. It states that the whereabouts of the applicant, his wife and his daughter were unknown at the time as they had fled the country for their lives. It states that on 25 December 2017, Gbagbani members took the applicant from his home in [Village 1] Chiefdom to initiate him to replace his late father. He was released on 1 January 2018, after which he went public and revealed the secrets of the group, which ordered that his daughter be forcibly circumcised.  It states that the applicant’s actions had gone viral and his life was in danger in Sierra Leone.

    ·     Photographs which show what appear to be scars on the applicant’s heel and hand.

    ·     An affidavit signed by [Mr B] dated 21 February 2020. It states that the author is the applicant’s uncle.  It states that the applicant’s father had wanted him to take his position in the Gbagbani society when he reached the age of maturity. The applicant vehemently opposed this because of his Muslim faith. On 25 December 2017, members of the society took him from his home in [Village 1 variant] Chiefdom in the Port Loko District, Northern Province to be initiated. He was released on 1 January 2018. Because of his beliefs he revealed what had happened to him. A week after he exposed the society his daughter was taken by force for circumcision. He rescued her. During the rescue he sustained a serious wound to his foot. After that his entire family was wanted by the Gbagbani, who intended to kill them.

31. On 11 August 2023 the applicant’s representative provided a written submission, which in essence argues that the applicant’s claims are credible and his fear of harm is well-founded. A copy of the statement dated 2 May 2018, and [Newspaper 1] article were also provided.

    The hearing held on 16 August 2023

32. The applicant confirmed that his father died when he was [age] years old and his mother two years later.  Following his mother’s death, he lived with a paternal aunt in Freetown. Freetown is the capital of Sierra Leone and the largest city in the country. It appears to have a population of about 800,000.[3]

    [3] Freetown | Sierra Leone, History, Map, & Facts | Britannica

33. The applicant’s aunt died in 2017. He has [number] sisters, but he has not seen them since the end of the civil war.  His only other relative was a paternal uncle who had lived in Freetown until his death in 2020.

34. The applicant confirmed that he continued to attend school for two years after his mother died.  During that time, he worked at odd jobs.

35. The applicant said that he moved to [Village 1] in 1996 because his aunt was no longer able to support him and his uncle could not provide him with accommodation. He remained there until shortly before his departure for Australia.  [Village 1] was his father’s traditional home. He and his family used to visit while his parents were alive.  He owned a house there, but he had no close relatives in the town.

36. The applicant explained that [Village 1] is a small village in the [Village 1] Chiefdom, in Bombali District in Northern Province. The nearest town with a school is [Town 1], which is about [distance] away on the other side of a river. The nearest hospital is in Makeni, the capital of Bombali District. The journey to Freetown takes about two days by private vehicle. The only other means of transport is a weekly bus. The applicant never owned a  car.

37. I advised the applicant that I had been unable to find any record of a chiefdom called [Village 1] in Bombali District and the only mention of a town called [Village 1] suggested that it had a population of about [number] people.[4] The applicant confirmed that [Village 1] was a small village and maintained that his claims were true.

    [4] [Village 1] Tourist Guide (Sierra Leone) (advisor.travel)

38. I noted that it appeared that the applicant had also stated that he had lived in Loko at some time. The applicant said that this was not correct as he had never lived in Loko and had never claimed to do so.[5]   

    [5] In fact, the only mention of Port Loko was in the statement purported to have been provided by his uncle.

1. After arriving in [Village 1], the applicant took lessons from a private tutor to continue his education. He continued to do this for five or six years. He worked to support himself and pay for these classes.  He found a position as an apprentice [Occupation 2] at a local workshop. He was given a small allowance for this work.  After two years he became a paid employee at the workshop. He continued to work there until he left [Village 1] in early 2018.  I observed that it appeared unlikely that there would be a [Occupation 2] industry of the kind he had suggested in that town. He maintained that his claims were true.

2. The applicant claimed that he also worked as a casual [Occupation 1] in [Village 1]. He learned the skills by arranging to work with an experienced [Occupation 1] who visited his workplace. He [undertook specified work]. At some time following the birth of his daughter [in 2009] he was employed as a casual [Occupation 1] in [Industry 1] in Freetown.  He [undertook specified work].

3. I observed that it seemed likely that there would be experienced [Occupation 1]s in Freetown and asked why the applicant had been employed to do this work so far from his home.  He said that a school friend’s father was involved with [Industry 1] and initially found the work for him.  After that, people contacted him by mobile telephone when they wanted him for a job in Freetown.  He travelled to the capital once or twice a month by bus to work as a [Occupation 1].

4. When asked for more information about his employer, the applicant said that he was employed by [a government committee]. He was not aware of any other name for his employer and did not know how his friend’s father was involved with the committee.  I advised him that I had difficulty accepting that someone from a small village that was a two-day bus ride from the capital would have been employed part time by a [government committee]. He maintained that his claims were true.

5. The applicant confirmed that he travelled to Freetown after fleeing his home and that he went to hospital almost immediately after he arrived.  After he left the hospital, he stayed with his friend’s father in Freetown.

6. I asked the applicant how he had obtained the passport issued [in] 2018. He said his school friend had made all the arrangements while he was in hospital. He did not know how his friend was able to obtain the passport. He was not required to attend any office and the only document he provided was his national identity card.  I noted that information on the Sierra Leone government website suggested that he would have been required to provide a number of documents and his fingerprints.[6] He said that he had not been fingerprinted. Later in the hearing, his representative suggested that the fingerprint requirement could have been introduced after the applicant obtained his passport. I acknowledged that this was possible.

   [6] Ordinary Passport - Sierra Leone Immigration Department (slid.gov.sl)

7. I asked the applicant how he had obtained the Australian visa granted on 17 February 2018.  He said that his friend’s father told him that the [committee] had approached him at the end of January 2018 and suggested that the applicant could save himself by going to Australia. His friend made the arrangements  He did not know what documents the [committee] provided in support of his application.  He did not pay anything for the visa or his travel to Australia.  He believes that the [committee] paid all these expenses.

8. Later in the hearing he appeared to suggest that the committee had recruited him to work with [Event 1] team solely because he was a [Occupation 1], but also claimed that his friend’s father has approached the committee to ask them to arrange for him to go to Australia because he was in danger. I observed that he appeared to have given three accounts of how he obtained the visa. He said that the committee recruited him because he was a [Occupation 1] and so he would save himself.

9. The applicant said that when he arrived in Sydney he stayed at a hotel with the team. The following morning, he was experiencing pain in his foot. He went outside and while he was bending down looking at his foot a man he had never met before approached him and asked what had happened.   He only spoke broken English at the time, but he explained his situation and the man took him to his home. I asked the applicant if he knew what the man was doing near his hotel. He said that he did not know because he had never asked.

10. I asked the applicant who had written the article which appeared in [Newspaper 1] [in] January 2018 and how they had obtained information on his situation.  He said that news about his situation was known everywhere by the time the article was printed.  I asked how he knew this. He said that his friend had told him.

11. The applicant confirmed that his father had been a member of the Bambanie Society. His father told him that as the first son, he would be required to join the group and that he would be forced to do so if he did not cooperate. I asked him for information about activities of the group. He said that they came out occasionally.  He did not experience any problems with the group before 2017 because whenever they came to [Village 1], they would warn people that they were coming by ringing a bell. People who were not involved with the group were not allowed to watch them and had to remain in their homes.  In addition, as nobody spoke about their activities, he did not know what they did.  I asked if anyone was harmed during these visits. He said that most people in the village were members of the group.  He said that he did not know anything more about the activities of the group in his village and he had not had any direct contact with them prior to December 2017.

12. I noted that the applicant had previously stated that he had avoided initiation with the society because his uncle had warned him when the initiation week was approaching.  He confirmed that this was correct. He said that they also rang a bell and anyone who was not in their house had to hide.  I observed that it appeared that the group came to his village for initiation weeks, but they had not been looking for him personally until December 2017. He confirmed that this was correct.

13. The applicant said that between five and 10 members of the society came to his house while he was sleeping and took him by force in December 2017. He did not recognise them because they were wearing masks, but he believed that they were from his village. They told him that he had to be initiated. He tried to resist, but they took him to a place in the bush about four or five miles away. They walked to the location. He was the only person taken for initiation. He was not restrained in any way. After he had been held for five days, they wanted to scar him and move him elsewhere. That night while they were sleeping, he ran away and returned to his village.  Despite being aware of the presence of members of the society in his village he went there because his family was still there.

14. The applicant said that three men had chased him when he left the camp. Shortly before he arrived back at village, one of them hit him on the heel with some kind of knife to try and stop him.  Despite this injury he managed to run into the village. The men who had been chasing him ran away.  It was early morning when the applicant arrived at his village and people were beginning to get up.  Before returning to his home, he told people what had happened to him.  He did this by shouting to the community in general. He was bleeding from his injured heel. Someone gave him a handkerchief to wrap his foot and he continued on to his home. 

15. When the applicant arrived at his home, his wife told him that his daughter had been taken by a women’s society to be circumcised. I observed that this appeared to be a common practice in Sierra Leone. He confirmed that this was correct but said that he and his wife opposed the practice.  He confirmed that his daughter had been taken by the group before he arrived back in the village.  I observed that it appeared that this suggested that she was not taken to be circumcised as an act of revenge for his actions. He confirmed that this was correct.  He said that his daughter was being held in a location one or two miles from his home. It was surrounded by a wooden barrier of some kind. He injured his hand when he broke through this barrier. He did not sustain any other injury while rescuing his daughter. Despite attempts by the women to stop him, he was able to rescue his daughter. She had not been injured. He took her back to his home. He told his wife to take her and the other children and flee. They left immediately. He has not seen them since that time.

16. The applicant left [Village 1] about an hour later. He crossed the river and went to [Location 1]. After that he walked from village to village until he reached Freetown.  This took a month and a week. In Freetown he went first to his friend’s father’s home and they took him to hospital.

17. The applicant said that he had no contact with anyone from the society following that.

18. I asked the applicant why he believed that members of the society were looking for him if he had no contact with them after he escaped from their camp. He said that secret societies generally sought to harm people who had done what he had done. In addition, after he arrived in Freetown, his friend told him that he had heard on the radio that the society was looking for him.  I asked the applicant why the group wanted to harm him. He said that it was because they had exposed everything that they did. I observed that it appeared that he had done nothing more that speak loudly about his experiences to the local community in [Village 1], most of whom appeared likely to have been aware of the group’s activities.  He said that he had also told people in the villages he passed through during his five-week journey to Freetown.

19. I advised the applicant that I had a number of concerns about his claims which caused me to doubt that they were true.

20. I noted that he had previously stated that he was released by the secret society after five days, but according to his evidence during the hearing he had run away. He said that the latter was correct and added that he had left before the initiation was complete.

21. I noted that he had initially claimed that his daughter had been taken to be circumcised as and act of revenge related to his exposure of the secret society, but his evidence during the hearing suggested she was taken before he returned to the village, which suggested that there was not time to plan and organise her abduction as an act of revenge. He said that his daughter was taken shortly before he arrived at the house and he was told it was an act of revenge.

22. I noted that his written statement suggested that both his foot and hand were injured when he was attempting to rescue his daughter, while at the hearing he claimed his foot was injured when he was running from the camp where he had been held by the society. He appeared confused and provided no explanation for this inconsistency.

23. I observed that while it was difficult to obtain a comprehensive understanding of the operation of secret societies in Sierra Leone, the available evidence suggested that it was unlikely that the applicant would have been abducted to force him to take over his father’s position some 20 years after his father died and he had reached adulthood. He said that the society was waiting until he had the maturity to take over his father’s position as a leader of the group.

24. I noted that the applicant had provided a medical certificate dated 20 January 2018 which stated that he had been injured during an assault in [Village 1] on 2 January 2018. It suggests that he was admitted to hospital shortly after this and remained there until 20 January 2018, which was at odds with his claim that he had walked for about five weeks after being injured before arriving in Freetown. He said that he arrived in Freetown on 1 March 2018 and he was admitted to the hospital on 2 March 2018. He was in hospital for about 17 days. He also maintained that the letter was genuine. I advised him that I had great difficulty accepting that a hospital would have issued a letter which contained these errors. 

25. The applicant confirmed that he had been abducted on 25 December 2018 and that he had departed his village five days later on about 30 December 2018. I observed that if he had walked for five weeks to reach Freetown he would have arrived there in mid-February 2018, not early March 2018. I observed that I was aware that it was now some time since these events and it was not uncommon for applicants to be confused about dates, and I was not greatly concerned about this particular discrepancy. However, his evidence regarding when he left his village and when he arrived in Freetown did not make sense. I also observed that it appeared that he was now claiming that his friend had obtained a passport for him before he arrived in Freetown. He maintained that his claims were true but provided no explanation for the inconsistencies in the evidence provided.

26. When asked, the applicant said he had not taken any identity documents with him when he left [Village 1]. I noted that according to information from the Sierra Leone government website, passport applicants had to provide identity documents, which presumably meant their identity card, a photograph and fingerprints. He said that he had sent his photograph and identity documents to his friend by WhatsApp some time prior to his departure from [Village 1]. I asked why he had done this. He did not respond.

27. I advised the applicant that I had a number of concerns about his claims which caused me to doubt that they were true.

28. I noted that he had previously stated that he was released by the secret society, but according to his evidence during the hearing he had run away. He said that the latter was correct and added that he had left before the initiation was complete.

29. I noted that he had initially claimed that his daughter had been taken to be circumcised as an act of revenge related to his exposure of the secret society, but his evidence during the hearing suggested she was taken before he returned to the village, which suggested that there was not time to plan and organise her abduction as an act of revenge. He said that his daughter was taken shortly before he arrived at the house and he was told it was an act of revenge.

30. I noted that his written statement suggested that both his foot and hand were injured when he was attempting to rescue his daughter, while at the hearing he claimed his foot was injured when he was running from the camp where he had been held by the society. He appeared confused and provided no explanation for this inconsistency.

31. I observed that while it was difficult to obtain a comprehensive understanding of the operation of secret societies in Sierra Leone, the available evidence suggested that it was unlikely that he would have been abducted to force him to take over his father’s position some 20 years after his death when he was an adult. The applicant said that the society was waiting until he had the maturity to take over his father’s position as a leader of the group.

32. I noted that the applicant had provided a medical certificate dated 20 January 2018 which stated that he had been injured during an assault in [Village 1] on 2 January 2018. It suggests that he was admitted to hospital shortly after this and remained there until 20 January 2018, which was at odds with his claim that he had walked for about five weeks after being injured before arriving in Freetown. He said that he arrived in Freetown on 1 March 2018, and that he was admitted to the hospital on 2 March 2018 and remained there for about 17 days. He maintained that the hospital’s letter was genuine, but the dates were incorrect. I advised him that I had great difficulty accepting that a hospital would have issued a letter which contained these errors. 

33. During the discussion of the events which caused him to leave his village, the applicant confirmed that he had been abducted on 25 December 2017 and that he had left his village after escaping five days later [on about 30 December 2017]. I observed that if he had walked for five weeks he would have arrived in Freetown in mid-February 2018, not early March. He maintained that he arrived in March.

34. I observed that it was now some time since these events occurred and I was aware that it was not uncommon for applicants to be confused about exact dates. However, the applicant’s evidence regarding when he left his village and arrived in Freetown was contradictory and did not make sense. I also observed that it appeared that he was now claiming that his friend had obtained a passport for him before he arrived in Freetown. He maintained that his claims were true but failed to provide a coherent explanation for these inconsistencies.

35. I asked the applicant whether he had taken any identity documents when he left [Village 1]. He said that he had not. I noted that according to information from the Sierra Leone government website, passport applicants must provide identity documents, which presumably meant their identity card, a photograph and fingerprints. He said that he had sent his photograph and identity documents to his friend by WhatsApp some time prior to his departure from [Village 1]. I asked why he had done this. He did not respond.

36. Following the hearing, the Tribunal wrote to the applicant in accordance with s 424A of the Act to advise him that the fact that the letter from [Dr C] that he had provided stated that he was in hospital in Freetown for three weeks prior to January 2018 was at odds with his claim that the did not arrive in Freetown until 1 March 2018, which could cause me to find that his claims regarding his admission to hospital were not true and that the letter he had provided was not genuine. In a response dated 27 September 2023, he said that the date on the letter was incorrect and maintained that he had arrived in Freetown in early March 2018. He said that [Dr C] could be contacted to confirm this.  

37. The letter also noted that the affidavit from [Mr B] dated 21 February 2020 stated that the applicant was abducted from his home in the Port Loko District in Northern Province and that his daughter was taken to be circumcised a week after he exposed the society’s activities, which was at odds with his evidence at the hearing that he had never lived in Port Loko and that his daughter was taken to be circumcised on the day that he escaped from the secret society. In response, he said that [Village 1] was located in the Port Loko District and that he had stated this during the hearing. With regard to the lapse of time between his escape from the secret society and his daughter’s abduction, he said that his uncle had been mistaken, and that she was taken on the day he was released.

    CONSIDERATION OF CLAIMS

38. For the following reasons, I did not find the applicant to be a truthful or credible witness.

39. First, I found the applicant’s account of his life and employment in [Village 1] and Freetown unpersuasive. He claims that he was involved in the [Occupation 2] industry in [Village 1] and that from about 2009 he also worked as a [Occupation 1] in [Village 1] and Freetown. I find it extremely unlikely that a small village in what appears to be a remote region in Sierra Leone would have a [Occupation 2] industry of the kind that the applicant suggests. And while it is possible that he worked part time as a [Occupation 1] in his local area, I find the claim that rather than employ a [Occupation 1] who worked in Freetown, a government committee would have arranged for a part-time [Occupation 1] to travel four days on a bus to and from the city to [undertake work] implausible and I do not accept it.

40. Second and more significantly, I found the applicant’s evidence regarding his problems with the Bambanie secret society unconvincing.

1. A 2007 paper by Dr Richard Fanthorpe[7] provides a useful, if somewhat dated, overview of secret societies in Sierra Leone. According to the paper, the Gbagbani society is the leading group in the Kuranko, Limba and Loko speaking areas in north-eastern Sierra Leone. Secret societies supervise boys’ rites of passage into manhood. All members of a community are normally initiated during adolescence. The village chief and male elders, heads of the local land holding families, will normally organise boys’ initiations.  Initiates may be symbolically killed and “eaten” by the spirits of the society, later to emerge “reborn” as adults. Their bodies may be scarred to symbolise the teeth and claw marks left by these spirits. Ceremonies are conducted in secluded areas in the bush and may involve drumming and chanting. Initiates and non-initiates must observe a range of laws and protocols including the rule that initiates cannot speak of society affairs to non-initiates and that non-initiates must not witness society rituals. Societies have the authority to impose a ritual curfew on a settlement, and at these times all non-initiates must retreat indoors and shutter all windows. To break the laws and protocols that secure the cooperation of spiritual powers is to court death.

   [7] Dr Richard Fanthorpe, Sierra Leone: The influence of the secret societies with special reference to Female Genital Mutilation, <>

   According to the report, the vast majority of people that join secret societies do so as part of the normal process of social maturation in the communities in which they were born. However, the long running civil war from about 1991 to 2002 resulted in a state of social flux and a drive by some groups to reassert locally rooted culture and authority, which resulted in some attempts to forcibly initiate members of some groups, including leading Muslim figures, socially marginalised youth, government workers on professional postings in provincial areas and critics or opponents of the societies.

2. Other reports[8] suggest that the sons of leading members of secret societies, who also appear to often hold chieftain positions, are expected to take on their fathers’ positions and face problems if they refuse to do so.  According to a media report published in 2019, a number of young men from the Bombali District were in hiding and fearful of returning to their villages as they had refused to undergo initiation. Their fathers were leaders in the area and expected them to be initiated into the Poro Society and assume the positions currently held by their fathers.

   [8] Traditional authorities launch manhunt for Alhaji Massie Kallon’, The Sierra Leone Telegraph, 10 October 2017. See also ‘19 Year Old Missing’, AYV Television, 20 April 2018

3. The applicant’s account of the role and power of secret societies such as the Bambanie accords with much of the available evidence. This is not surprising given that this information would be widely known in Sierra Leone where these societies have a long history and a significant presence. However, in my view there are several significant problems with his evidence regarding his interaction with the society.

4. The applicant claims that he moved to his father’s ancestral home in the small village of [Village 1] in Bombali District at the age of about [age] but he faced no pressure to undergo initiation until he was about [age]. This is at odds with the available evidence, which suggests that young men in these areas generally undergo initiation during adolescence.  Furthermore, he has given differing accounts of how he was able to avoid initiation until the age of [age]. He initially claimed that it was because his uncle had warned him when the society intended to conduct initiation ceremonies. This seems somewhat unlikely as his uncle resided in Freetown and the evidence suggests that initiation ceremonies are organised by local leaders. He also claimed that the society was waiting until he was mature enough to take over his father’s role before initiating him. This is at odds with media reports cited above, which suggest that the sons of leaders of secret societies are expected to undergo initiation when they reach an appropriate age, not following the death of their father or when they reach maturity.

5. That said, information on precisely how the Bambanie operates in the applicant’s local area is limited and I might have been prepared to give him the benefit of the doubt and accept that the group had decided it was time for him to be initiated in 2017 if this was the only problem with his evidence regarding his contact with the group. However, this is not the case. He has provided differing accounts of the events of December 2017 and I found his claims regarding these events implausible.

6. In the statement dated May 2018, the applicant said that after being held by the Bambanie for several days he was released and claimed that his foot and hand were injured when a group of people hit him with sticks when he rescued his daughter from women planning to circumcise her. During the hearing he said that he had escaped at night, that some of them chased him and injured his foot with a knife shortly before he reached his village and that he had injured his hand when he broke through a wooden barrier to rescue his daughter. In addition, in the statement dated May 2018 he said that his daughter had been taken for circumcision as an act of revenge against him because he had exposed the Bambanie’s activities. In later submissions he said that his daughter was taken for circumcision before he had spoken about the group’s activities, but also maintained that this was done as an act of revenge.

7. The applicant’s claim that he was able to leave the initiation site by simply walking away does not sit well with the claim that he had been taken there by force by men who were determined to initiate him. I find it highly unlikely that despite being ill-treated while being held at the initiation site he was able to outrun the men who pursued him and even less likely that he was able to continue running after his ankle or heel was seriously injured, and that shortly afterwards and despite sustaining an additional injury, he was able to rescue his daughter from a group of women and return with her to his village. I also have great difficulty reconciling the claims that most of the male villagers in [Village 1] belonged to the Bambanie and that the group had a significant degree of control in the village with the claim that they ran away when he reached the village rather than continue to pursue him.

8. In assessing the applicant’s claims regarding his problems with the Bambanie, I have considered the affidavit signed by [Mr B], which purports to confirm the applicant’s claims regarding his problems with the Bambanie.  As noted above, the affidavit contradicts the applicant’s evidence that his daughter was taken for circumcision on the day he escaped from captivity in [Village 1]. When asked to comment on this following the hearing the applicant said that his uncle had made a mistake.

9. I do not accept that the applicant’s uncle would have been confused about the timing of his release from captivity and his daughter’s abduction if he had firsthand knowledge of these events. I believe that his evidence contradicted the evidence provided by the applicant because he did not have firsthand knowledge of the events of January 2018. I also note that according to the affidavit, the applicant lived in [Village 1 variant] Chiefdom in the Port Loko District, which is at odds with his evidence that he lived in the Bombali District.  Contrary to the statement in the letter dated 27 September 2023, he did not claim to have lived in Port Loko during the hearing.

10. I believe that the affidavit signed by [Mr B] was prepared at the applicant’s request to support his claim from protection. I do not accept that it provides independent corroboration of his claims and I have given it no weight.

11. Third, and most significantly, there are serious inconsistencies in the applicant’s evidence regarding his travel from [Village 1] to Freetown in early 2018 and I found much of his evidence regarding this trip implausible.

12. In the application form lodged in May 2018, he said that he was in Freetown from early January 2018 until his departure for Australia in March 2018.  A friend’s father helped him with accommodation and money for medicines. In the statement provided with that application, he said that he was hiding in Freetown while making arrangements to leave the country.  In September 2020 he provided a medical certificate from a hospital in Freetown which indicates that he was an inpatient at the hospital for three weeks prior to 20 January 2018. At the hearing he confirmed that he travelled to Freetown after fleeing his home and was admitted to hospital almost immediately.  He said that his friend had applied for and obtained his passport during the time he was in hospital in Freetown. The passport was issued [in] 2018. Later in the hearing he said that he had left [Village 1] on about 1 January 2018 and walked to Freetown, which took about five or six weeks. When I observed that this was at odds with the information in the medical certificate and his evidence regarding the issuing of his passport, he said that the dates in the certificate were wrong and that his friend had obtained his passport prior to his arrival in Freetown using copies of documents he had forwarded prior to his departure from [Village 1].

13. While I acknowledge that it is not unusual for applicants to be confused about precise dates of events in the past, I do not accept that the applicant’s memory was so poor or his confusion so great that he would have claimed that he was in hiding in Freetown for about two months prior to his departure in his submissions to the Department, then claim in submissions to the Tribunal that he was in hospital Freetown in January 2018, then, after confirming these claims at the beginning of the hearing, change his evidence and state that he had walked for some five weeks to Freetown and had not arrived there until early March.

14. In addition, while it is plausible that bus services are limited in rural areas of Sierra Leone, according to the applicant’s evidence there is a weekly bus from his small village and there must have been other opportunities for him to find transport to Freetown at some time during the five weeks he claims to have walked. There is no suggestion that he was so poor that he could not afford the bus fare. Nor is there any suggestion that he was in hiding to avoid problems, as according to his evidence he was spreading the word about his experiences with the Bambanie during his journey. In these circumstances, and in light of the evidence that he was in regular phone contact with a friend in Freetown who was organising his passport, I find the claim that he walked to Freetown implausible.

15. In assessing the applicant’s claims, I have considered the medical certificate provided by the applicant. Far from confirming his claims, it contradicts them. The applicant claims that the dates in the letter are incorrect due to an error on the part of the author. I do not accept that a medical professional would provide a document which incorrectly recorded the dates that a patient was hospitalised or the date on which the letter was written. I note that letter is dated 20 January 2018, before the applicant now claims to have arrived in Freetown.

16. I have considered the applicant’s representative’s suggestion that I contact the author of the letter who would confirm that he had made a mistake in relation to the dates in the letter. I note that it was open to the applicant to seek written clarification of the situation from the author of the certificate had he wished to do so, but no such information has been received.  I only have the certificate, which contradicts the applicant’s evidence.

17. If the only problem with the applicant’s evidence was a discrepancy between his evidence and the evidence provided by a witness, I would have been prepared to seek further information to clarify the situation. In this case, the applicant himself has provided contradictory accounts of his whereabouts and activities and provided a supporting affidavit which also contradicts some of his evidence. In these circumstances, and in the absence of further evidence from the author of the letter correcting any mistakes, I am not prepared to contact him.

18. I do not accept that the medical certificate provided by the applicant is a genuine document which contains inaccurate information. I believe that it was prepared at the applicant’s request to support his claims, and that he claimed it contained errors to overcome problems with his evidence. I have given it no weight.

19. I have also considered the article in [Newspaper 1] [of] January 2018. There is nothing in the article which alleviates my concerns regarding the applicant’s credibility. As set out above, his evidence contains very serious inconsistencies and implausible claims for which no persuasive explanation has been provided.  Furthermore, a plausible or persuasive explanation for the source of the information in the article has not been provided. He claims that his friend told him that everyone knew about his case by the time the article was published. I find it unlikely that the fact that a resident of a small village in a remote area had run away rather than be initiated into the Bambanie society would have become national news within about two weeks. Finally, as discussed above, the other supporting documents provided contain flaws and I believe that they were prepared and provided to support claims which are untrue. I believe that the article which purports to have been published in January 2018 was manufactured at the applicant’s request to support his claims and I have given it no weight. I note that with modern technology it is relatively easy to produce what appears to be a newspaper article.

20. Fourth, the applicant’s evidence regarding how he obtained his passport was inconsistent and unpersuasive. He initially claimed that a friend made the arrangements for the passport while he was in hospital in January 2018, but after claiming that he was not in Freetown at that time, changed his evidence and said that his friend had obtained it in his absence using a picture and other documents he had sent by WhatsApp. According to the applicant’s evidence, he did not take any documents when he fled [Village 1] because while he sat outside his home for an hour or so, he did not go inside. I find it highly unlikely that the applicant would have remained outside this house, where he would have been at risk of being attacked by the Bambanie, and even less likely that he would not have entered his home to collect items such as his documents or money for the journey. More significantly, it means that the documents needed to obtain his passport must have been sent to his friend in Freetown before he was abducted. Despite being asked why he did this, the applicant did not provide an explanation.

100.   Fifth and finally, I found the applicant’s account of how he obtained a visa for Australia unpersuasive. His evidence was vague and confused. At times he appeared to claim that he had been invited [to] Australia because of his skills as a [Occupation 1]. As discussed above, I found the applicant’s evidence regarding his work as a [Occupation 1] for a government [committee] unconvincing. I find it highly unlikely that the government of Sierra Leone would have selected him as team [Occupation 1] and paid for his travel to Australia if he was a part-time [Occupation 1] from [Village 1]. He also claimed that the government or some government officials had somehow been aware of his problems and had advised his friend’s father that they could arrange for him to travel to Australia to avoid further problems.

101.   It may be that the applicant obtained the position of [Occupation 1] with the Sierra Leone [Event 1] team and visa for Australia through contacts or bribery. However, as discussed above and below, I do not accept that he was at risk of harm from the Bambanie or anyone else prior to his departure from Sierra Leone.  It follows that I do not accept that the [committee] offered him the position of team [Occupation 1] to escape the possibility of harm in Sierra Leone or that his friend’s father somehow arranged the visa so that he could escape the possibility of harm in Sierra Leone. I believe that he obtained the visa to enter and establish a life here for reasons unrelated to fear of harm in Sierra Leone.

FINDINGS OF FACT

102.   After considering all of the evidence, I find that the applicant is not a truthful or a credible witness.  I do not accept that he was abducted by members of the Bambanie society in December 2017 in order to force him to submit to initiation into the society and take over his father’s position. I do not accept that his daughter was abducted in January 2018 so that she could be circumcised or that he rescued her before this could be done. It follows that I do not accept that he was injured during one or both of these incidents or that he revealed the nature of the Bambanie initiation ceremony when he returned to his village or at any other time, or that he fled to Freetown immediately by walking for five weeks. I do not accept that he was hospitalised in Freetown for 17 days or three weeks as a result of injuries inflicted by members of the Bambanie or when he rescued his daughter from a women’s secret society. I do not accept that he was of interest to the Bambanie because he refused to be initiated or because he revealed their secrets or for any other reason. I find that these claims were all concocted to support his claim for protection in Australia.

103.   It is possible that the applicant’s father belonged to the Bambanie society prior to his death. However, there is no credible evidence before me which suggests that the applicant was of interest to the Bambanie society because of his relationship with his father prior to his departure from Sierra Leone at that age of [age], or that he would be of adverse interest to the Bambanie society or any other secret society or any group or individual in Sierra Leone for any reason if he returned to Sierra Leone.

104.   I do not accept that the applicant left Sierra Leone or that he fears returning to Sierra Leone for any of the reasons claimed.  I am not satisfied that he faces a real chance of suffering serious or significant harm for any reason if he returns to Sierra Leone now or in the reasonably foreseeable future.

Does Australia have protection obligations to the applicant under the refugee criterion?

1. Having considered all of the applicant's claims individually and cumulatively, and all the evidence, I am not satisfied that there is a real chance that he will suffer serious harm for any of the reasons set out in s 5J(1)(a) of the Act if he returns to Sierra Leone now or in the reasonably foreseeable future. I therefore find that he does not have a well-founded fear of persecution and is not a refugee as defined in s 5H of the Act.

   Does Australia have protection obligations to the applicant under the complementary protection criterion?

106.   After considering all of the applicant’s claims, individually and cumulatively, and all the evidence, I am not satisfied there is a real risk that he will be arbitrarily deprived of his life, the death penalty will be carried out on him, or he will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment if he returns to Sierra Leone now or in the reasonably foreseeable future. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.

CONCLUSIONS

107.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

   DECISION

110.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Roslyn Smidt
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.