1829874 (Refugee)

1829874 (Refugee) [2024] AATA 1021 (16 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Maria Mamarot
CASE NUMBER:  1829874
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Penelope Hunter
DATE:16 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 January 2024 at 3:56pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion – All People’s Congress (APC) – fear of the Sierra Leone People’s Party (SLPP) – particular social group – single women – single mothers with young children – single mothers without family support – victim of an attempted rape – widespread discrimination – capacity to subsist – sexual and gender-based violence – state protection – right to enter and reside in a third country – Economic Community of the West African States (ECOWAS) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 September 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 14 May 2018. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant had demonstrated that she met the criteria for a protection visa under the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND INFORMATION BEFORE THE TRIBUNAL
The applicant is a [age] year old female born in Freetown, Sierra Leone. She claims to be of the Christian religion and her ethnicity is Loko. She speaks, reads and writes English and Creole. She completed high school and holds a Diploma in [Discipline 1] and a Diploma of [Discipline 2]. In Sierra Leone she was employed as a [Occupation 1]. At the time of application, she advised that she was pregnant, and her fiancée was deceased. Her parents are deceased. In Sierra Leone she has one sister whose location she claimed was unknown. She first arrived in Australia [in] March 2018 as the holder of a [temporary] visa.
In her visa application, the applicant set out the following claims.
i.She was not safe in Sierra Leone. The applicant and her late fiancé are members of the All People’s Congress (APC). The ACP is the opposition party and the Sierra Leone People’s Party (SLPP) was the ruling party. The SLPP had been attacking APC supporters since 17 March 2018 following the first round of the elections.
ii.The applicant and her fiancé were attacked on the night of 20 March 2018 by a group of people who said to them “ since you are a member of the APC, we are going to kill you one by one.” They beat her fiancé and tried to rape her. During the attack, the police came. A hot iron was put on her arm when she resisted the rape and it has left a mark.
iii.A member of the SLPP framed her fiancé as a thief and this mobilised a mob to beat him to death with sticks on [date] March 2018.
iv.Members of the SLPP also burnt the applicant’s rented house, and her fiancé’s house was burnt down in April 2018 following the announcement of the final election result.
v.She will lose her life and her baby if she returns to Sierra Leone because of her relationship to her deceased fiancé. She is well-known to the SLPP and will be the target of rape, torture and killing.
vi.She had made a report to police but they were of no help stating there was no evidence of the attack and the attackers wore masks.
vii.She did not previously try to relocate within her home country because her fiancé was stubborn and believed things would be ok and that nothing would happen to them. Sierra Leone is a small country and it is easy to track down people down. The applicant had also never lived in any other provinces in Sierra Leone and had no relatives or connections to be able to relocate. She could not relocate to another Economic Community of the West African States (ECOWAS) country as she did not know anyone and it would be difficult for her to support herself and her baby. She is a single woman and it will be dangerous for her to live on her own.
viii.The authorities will not protect her if she returns to Sierra Leone as they are part of the ruling party, they are corrupt and did nothing to investigate the killing of her fiancé.
In a further statement dated 11 May 2018, the applicant set out the following further relevant information (in summary):
i.Her parents died around August 2017 in a large mudslide in Freetown. She last had contact with her sister [around] March 2018 by telephone. At that time she was in Freetown but the applicant was unsure of her whereabouts and has not been able to reach her through friends.
ii.She met her fiancé [Mr A] around 10 June 2014, in Freetown. He was a business man and they became engaged in October 2017. After the engagement she moved into his house at [Address 1]. They were planning on marrying after she returned from Australia in 2018.
iii.She had always been a strong supporter of the APC and when she met [Mr A] she became a more active supporter. In the lead up to the elections, [Mr A] was a campaign manager for the APC. He held party meetings in their house every Sunday, at which he gave motivational talks and helped organise campaign activities. He also had a critical role as a businessman and sourced overseas goods such as tea sets and other items printed with the APC party logo.
iv.During the campaign she would often go out with other APC party members to speak with people and distribute leaflets. During these activities they often ran into opposition SLPP members who would verbally abuse them and threaten them with harm. On many occasions she was fearful that things would become violent.
v.On 20 March 2018, a group of five or six masked men broke into their home and attacked them. A couple grabbed her and took her clothes off, she was naked and very scared. Other men were beating [Mr A]. As the men were attacking them they heard sirens. The men left before they could rape her. She learned that the neighbour had called the police. Because of their threats and comments about her and [Mr A] being APC supporters she believed that the men were from the SLPP. The police did not investigate further as she could not identify the attackers as they were wearing masks and because she was a strong APC supporter.
vi.[Mr A] was badly beaten in the attack and went to hospital the following morning due to his injuries. He had not completely recovered before she left for Australia.
vii.She departed Sierra Leone [in] March 2018 as part of the support crew as a [Occupation 1] for the Sierra Leonean team for [Event 1]. [Organisation 1], where she worked, helped her apply for the visa and paid for her travel.
viii.When she arrived in Sydney she was delayed at the airport and questioned by customs. She was separated from the rest of her group. She met a lady at the airport, [Ms B] who said she would help her. When she arrived at [Ms B]’s home she called Sierra Leone. She was able to contact a friend, [Ms C]. She told her that [Mr A] had been killed after being beaten by a mob in Freetown on [date] March 2018. A member of the SLPP had recognised his face and accused him of being a thief. This mobilised a mob to attack [Mr A], they went after him with sticks and beat him. It is common for mobs to act out their own justice on perceived criminals such as thieves. By the time the police arrived he had already died. She was sent a video of the attack. She heard from her friend that when the police found out [Mr A] was from the APC, they dropped the investigation.
ix.In April 2018, the SLPP came to power in Sierra Leone. She is still at risk in Sierra Leone as the SLPP members know who she is and that she was [Mr A]’s fiancé.
x.She fears harm from the community in Sierra Leone because of the stigma associated with being the victim of an attempted rape, which occurred prior to leaving Sierra Leone.
xi.She was seven weeks pregnant with [Mr A]’s child and also feared returning to Sierra Leone as a single mother and female without family support. It would be dangerous for her to live on her own as a single woman and with a baby. She cannot relocate as she will be at risk in every part of the country as a member of the APC party, a single mother and as a female without family support. She does not think any other country can protect her because any African country poses a risk to single women and single mothers.
At the time of her application the applicant also provided to the Department a copy of her [Event 1] accreditation pass that lists her as a [Occupation 1] for [Employer 1]. The applicant was invited to attend an interview before the delegate on 18 June 2018. The delegate records in their decision record that the applicant provided the following additional information:
i.She is a long-term APC supporter but did not take part in any activities until the 2017 pre-election activities.
ii.She is supported in Australia by a friend that she met at the airport.
iii.She has greater support in Australia through the friend that she now lives with, and does not have any support in Sierra Leone..
Following the interview on 19 June 2018 the applicant emailed the department a video titled “VID-20180405-WA0023.mp4”. The video shows a person being attacked in the street and the covering email contained no additional information.
On 23 August 2018, the Department sent the applicant a s56 Request for Information requesting further details and information about the video submitted on 19 June 2018 and how this relates to her claims for protection.
On 14 September, the applicant responded via email to the Department’s request for information and provided a further copy of her statement of claims made on 14 May 2018. The additional copy contained handwritten text at the bottom of the document that reads:
“[Organisation 1] was formed [in] 1974 in Freetown by a group of [Occupation 1]s who were very passionate about [their profession]”.
The delegate, in their decision made on 17 September 2018, noted that from the response provided by the applicant it was not clear to them how the video relates to the applicant’s claims and therefore did not place weight on the submission. The delegate expressed concerns about the credibility of the applicant in her decision record and was not satisfied that the applicant came to Australia with the intention of working at [Event 1] as a [Occupation 1] and did not accept her claims about employment as a [Occupation 1] to be credible. The delegate was also not satisfied that the applicant was involved in campaign processes or an APC supporter at all. The claim her fiancé was a campaign manager for the APC and that he was killed was rejected. It was also not accepted that the applicant was single and that consequently she would be harmed as a single mother.
Tribunal Application
On 12 October 2018, the Tribunal received an application for review from the applicant.
On 14 November 2018, the Tribunal received an email from a caseworker acting on behalf of the applicant, containing a statutory declaration of the applicant signed and dated 14 September 2018. The declaration addresses the VID-20180405-WA0023.mp4 provided to the Department. In summary the applicant claimed:
i.The video was sent to her roommate [Ms B] by her friend, [Ms C], who had received the message via WhatsApp from contacts in Sierra Leone.
ii.She did not know any further details about the people who sent the video to [Ms C]. She considers [Ms C] to be a very good a trustworthy friend, who would not have shared the video with her is it was not genuine.
iii.The video was also sent to [Ms C] with a photo of [Mr A], which the WhatsApp messenger identified as a photo of the man who was killed by the mob that the applicant recognised as [Mr A]. She could see from the photo that he has been wounded and there is blood.
iv.The video depicts a mob attacking [Mr A] with sticks and other objects in the square that she recognises as a place called “[Location 1].” [Location 1] is the centre of town and she would frequent it with [Mr A] daily. She recognises that the attack on [Mr A] took place in front of a [shop] that she would go to sometimes but she does not recall the name. The applicant further discussed the streets and provided a diagram of their layout
v.The applicant acknowledged that the video was far away and that she was not able to clearly identify [Mr A]’s face. It had been reported to her to be a video of the assault on [Mr A] and she had no reason to doubt it. Particularly as the photo of [Mr A] appears to be of his body after the attack and he appears to be wearing the same clothes as depicted in the video. She recognises the area as an area that [Mr A] would have been likely to be in, and the attack in the video matches [Ms C]’s description of what happened to [Mr A].
On 11 December 2018, the Tribunal received an email from the review applicant advising she had attached a video clip in support of her claims. Attached to the email was video “VID-20180405-WA0023.mp4.”
On 29 August 2023, the applicant provided a further statutory declaration, a copy of her passport, a copy of the purported death certificate of [Mr A], a copy of her [Event 1] Pass, a copy of her travel itinerary in Australia, a copy of her APC membership card, a series of photographs which she claimed to be a copy of the property of [Mr A] after a fire in 2018, a photograph of [Mr A] after being killed in 2018, and evidence of her pregnancy. In her statutory declaration the applicant provided the following additional information (in summary):
i.Her daughter [Child D] was born on [date], and was [age] years old. She was again pregnant and her due date was [date].
ii.She was renting a townhouse that they shared with a friend and she was employed as an [Occupation 2]. She was single and was grateful for support from family friends and the Salvation Army Church in [Suburb 1].
iii.She had lived at the same household in Freetown since her childhood, located in [Address 2]. After getting engaged to [Mr A] in October 2017 she started staying at [Mr A]’s place but did not move permanently as they were only engaged. She kept her belongings at both places.
iv.With [Mr A] she actively engaged in APC campaigns and taking to the streets to connect with people. They advocated wise voting decisions and encouraged people to vote for the APC. They highlighted accomplishments such as improved roads and better lighting that the party had brought about and as evidence of the commitment to progress. She spoke of of upcoming developmental projects in the pipeline and advocated for people to obtain identification cards so that they could vote.
v.She had lost contact with her sister [Ms E] because she had lost her phone. They reconnected after her visa was lodged, now they message each other from time to time. They are not close.
vi.Before coming to Australia she had no intention of staying or applying for a protection visa, she had a fiancé, her job and life to return to. She had worked for [Organisation 1] from around August 2015 until she left for Australia in March 2018. [Organisation 1] organised her entire trip to [Event 1]. Prior to this she had never travelled outside Sierra Leone. She did not travel with her manager, [Mr F], but did travel with a group all arriving for [Event 1]. [Mr F] arrived in in Australia a day or so later.
vii.On arrival in Sydney she was asked by airport security to stay back and attend an interview. Her group did not wait for her and when she was finished she could not find them. She met a woman at the airport called [Ms B]. They got talking and she offered to let her stay at her place for the evening. She could not call her group, no one answered and then her phone died. She was due to fly to [Australian City 1] on 1 April 2018 but she missed her flight.
viii.[Mr A] was killed shortly after she arrived in Australia and when she heard the news she was devasted. Her recollection of what happened after is limited.
ix.She is afraid of being killed, raped or tortured if she returns to Sierra Leone. She is still a target because the APC is in opposition and their supporters are still being attacked and killed. She is also afraid for her daughter, as she is the child of [Mr A]. She would also be targeted as she had been out of the country for a long time.
x.She was currently heavily pregnant and very scared for her unborn baby and the danger he would be in were they forced to return to Sierra Leone.

On 21 August 2023, the applicant was invited to appear before the Tribunal at a hearing to give evidence and present arguments on 15 August 2023. This hearing was rescheduled at the request of her representative.
On 31 August 2023, the applicant submitted a copy of the birth certificate of her daughter [Child D], her immunisation record and Medicare card, a letter from [Dr G] dated 31 August 2023 confirming that the applicant was [number] weeks pregnant, an ED Discharge referral from [Hospital 1] for the applicant and a photograph of the applicant.
The applicant appeared at a hearing before the Tribunal on 13 September 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages. The representative of the applicant also participated in the hearing. Where relevant the Tribunal has set out the evidence of the applicant below.
On 20 September 2023, the applicant provided a further statutory declaration, in the document the applicant addressed the following:
i.She was aware that some people blamed the APC for the mudslide that killed her family, but she saw it as a natural disaster.
ii.The applicant attached a press release from the APC about the death of [Mr A]. She was unsure how this was covered in the media in Sierra Leone.
iii.She supported the APC as her family were APC supporters, and always voted this way. She knew that they stood for peace and put money into developments, education, infrastructure and facilities for the people. She may not have known the name of the candidate for [Constituency 1], as she was campaigning for the APC president in general.
On 5 October 2023, the applicant submitted a copy of her Diploma of [Discipline 3] awarded [in] April 2023 and transcript and a copy of her accreditation in [an Occupation 2 competency].
FINDINGS AND REASONS
The issue on review for the Tribunal is whether there is a real chance that the applicant will suffer persecution on return to Sierra Leone, or, if not, whether there is a real risk that he will suffer significant harm if removed from Australia to Sierra Leone.
Nationality and identity
On the basis of the identity evidence submitted to the Department, including copies of the passport of the applicant, the Tribunal accepts that she is who she claims to be and that she is a citizen of Sierra Leone. The applicant’s claims will be assessed on this basis. There is no evidence before the Tribunal that the applicant would be excluded from Australia’s protection obligations on the ground set out in s 36(3) of the Act.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
As decision-maker, the Tribunal is not required to make the applicant’s case for him. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.).
The Tribunal had several difficulties with elements of the applicants evidence, and it considers that part of her claims are not without embellishment.
Particularly, the Tribunal found the applicant’s narrative of how she came to be in the house of a random woman from Sierra Leone that she met at the airport in Sydney and failed over a period of close to 48 hours to reconnect with her travel partners in a nearby suburb lacked reliability. The applicant offered that her phone had stopped working and that she was not thinking rationally after arriving in a new city, losing her travel companions and learning of [Mr A]’s death. This might go some way to explaining the situation, however the Tribunal remains unsatisfied that the applicant has revealed the truth of her actual circumstances.
Additionally, the Tribunal also has concerns about the applicant’s actual level of involvement with the APC and campaigning from her evidence to the delegate and to the Tribunal at hearing. The Tribunal was not satisfied her responses regarding the candidate she campaigned for in [Constituency 1] were accurate. It considers that she has embellished her level of involvement to enhance her profile. It is accepted nevertheless that she has demonstrated some general knowledge about the APC, its membership and the election process in 2018.
In assessing the corroborative material that the applicant has supplied to support her claims the Tribunal was of information contained in the December 2020 DFAT thematic report on the ECOWAS, which includes Sierra Leone, and states that corruption is highly prevalent across the ECOWAS region and can manifest in relation to obtaining all forms of identification documents.[1] It is also assessed that there is a well-established history of individuals across ECOWAS using fraudulent (counterfeit or altered) and fraudulently obtained genuine documents to obtain visas.[2] To corroborate her claims the applicant has supplied evidence of her employment as a [Occupation 1], her [Event 1] pass, her travel itinerary, evidence of her relationship with [Mr A], a video of the attack upon him, photographs purporting to be [Mr A], and damage to their respective houses, a death certificate, and a press release about [Mr A]’s death from the APC. There is no date on the WhatsApp video submitted, and open searches have not assisted the Tribunal, however the Tribunal could locate no evidence of a similar video and the location is consistent with the evidence of the applicant. The applicant’s evidence in relation to her experiences in her home country has generally remained consistent and coherent, she has not waivered in the reasons that she fears to return, assessing the evidence in its entirety, the Tribunal is not able to make a confident finding that the applicant’s account is not credible. Having regard to the Tribunal’s Guidelines on the Assessment of Credibility, it is possible that the some of the applicant’s account of past events is true.
[1] DFAT Thematic Report – Economic Community of West African States (ECOWAS), Department of Foreign Affairs and Trade, 3 December 2020, p.26
[2] DFAT Thematic Report – Economic Community of West African States (ECOWAS), Department of Foreign Affairs and Trade, 3 December 2020, p.26
It follows that the Tribunal accepts that the applicant was engaged to [Mr A] in Sierra Leone and that [Mr A] was involved with the APC. It does not accept that he was a campaign manager, however it is probable from the evidence of the applicant that he was involved in marketing with the APC. The Carter Centre assessed that the March 2018 elections themselves in Sierra Leone were conducted in a competitive and inclusive environment which generally conformed with international standards.[3] Although, the European Union Election Observation Mission, assessed that the campaign was marred by intimidation[4] and that there were increasing threats and acts of violence towards the end of the campaign.[5] Other reports on the election also comment that they lead to a spate of politically-motivated violence, hate speech and tribal-based messages of dissatisfaction.[6] It was the applicant’s evidence that tensions increased post-election after the voting on 7 March 2018 failed to reveal a successful presidential candidate. It is the evidence of the applicant that the events that brought her the most fear of harm, the home invasion and assault, the attack and killing of [Mr A] and the burning of his house occurred during this period. This increase in violence and intimidation is also consistent with country information. The Carter Centre in their report document relevant clashes reported in Freetown and high tensions, widespread violence and stakeholders publicly intimidating citizens perceived to be their opponents, together with calls for supporters to refrain from violence from most political leaders.[7] In this particular environment it is not improbable that the applicant and her partner were subjected to the violence and intimidation that she claims. The Tribunal therefore accepts that it is possible that the applicant and [Mr A] were assaulted and the victims of a home invasion as she claims and also that her partner [Mr A] was killed shortly after her departure from Sierra Leone because he was accused of being a thief and attacked by a mob in the heightened political environment. The Tribunal does not accept that their homes were burned, there are no identifying details on the photographs submitted by the applicant, there is no evidence to verify that the applicant or [Mr A] lived in any of the properties depicted, when the photographs were taken or even general media reporting to corroborate that the fires were linked to election violence. Given the concerns relating to parts of the applicant’s evidence, and the provenance of certain documents the Tribunal does not accept this aspect of her claim. However, it is accepted that it is possible those who harmed or instigated the harm to the applicant and [Mr A] may have been motivated by opposition to the actual and perceived political opinion of the applicant’s partner.
[3] The Carter Centre, March 7, 2018, Presidential and Parliamentary Elections in Sierra Leone, March 23, 2018, at p 57
[4] The European Union Election Observation Mission, Sierra Leone, Presidential, Parliamentary and Local elections 2018, preliminary statement, page 1 accessed at PRELIMINARY STATEMENT (europa.eu)
[5] As above at p.7
[6] Sierra Leone postpones runoff vote until Saturday – DW – 03/26/2018, Deutsche Welle, 26 March 2018
[7] The Carter Centre, March 7, 2018, Presidential and Parliamentary Elections in Sierra Leone, March 23, 2018, at p 57
The Tribunal therefore accepts that the applicant has a subjective fear of harm if she were to return to Sierra Leone on the basis of her past experiences due to her actual or imputed political opinion which was secondary to her relationship with [Mr A]. As to any objective fear of the applicant, due to his death she is no longer in a relationship with [Mr A]. They were not married and kept separate residences. She told the Tribunal that she does not have any contact with [Mr A]’s family, she was also not supported by any of [Mr A]’s colleagues in the APC following his death. She claimed to have not expectation of being supported by them in the future. Although the Tribunal can accept that she may have handed out pamphlets generally as part of the election campaign for leader and presidential candidate of the APC, Sumara Kamara, the Tribunal does not accept that the applicant herself was singled out due to her status and capabilities as member and campaigner. The Tribunal makes this finding on the basis of the evidence of the applicant at hearing, particularly as she was unable to successfully identify the candidate for the constituency that she claimed to be campaigning in and details of their tenure. Given the time which has elapsed since the applicant departed Sierra Leone, the Tribunal considers that separately, the real chance that the applicant would face a real chance of serious harm because of her former relationship with [Mr A] or on the basis of her actual or imputed political opinion alone were she to return to Sierra Leone is the reasonably foreseeable future is low. The Tribunal makes this finding having regard to reports, in relation to the most recent elections held in June 2024, and associated reports of violence.[8]
[8] European Union Election Observation Mission Sierra Leone, 10 October 2023, accessed at EU EOM SLE 2023 Final Report.pdf (europa.eu) 'Calm in Sierra Leone despite contested election result', Al Jazeera, 28 June 2023; ‘Sierra Leone’s President Re-Elected, Barely Avoiding a Runoff', Elian Peltier, The New York Times, 27 June 2023; Sierra Leone 2023 Final Report – General Elections 24 June 2023,
The Tribunal also accepts that the applicant worked as a [Occupation 1] as she claimed. She was able to provide detail to the Tribunal about her employment history, [evidence of her previous work] and her role for her employer [at Event 1]. It is also possible that the applicant travelled to Australia to attend [Event 1] in 2018 as she claimed. It does not accept that she faces a real chance of being persecuted in Sierra Leone in the reasonably foreseeable future for the separate or cumulative reason of having failed to undertake her duties as a [Occupation 1] as part of the country’s [Event 1] attendees. The applicant herself was not part of the delegation and had no representative role for her country. While her remaining in Australia and failure to fulfil her employment contract may be an obstacle to her further employment with any [Organisation 1] associated entity, and hence future employment as a [Occupation 1], it is not accepted that she would be persecuted for this reason.
As to her other claims arising on the evidence, the applicant fears harm on the basis of her gender as a woman and her status of being a single mother without family support. The Tribunal has accepted her claim that [Mr A], her partner and father of her first child was killed. There is no evidence to support the finding by the delegate that the applicant remains in a relationship with anyone in Sierra Leone. The applicant claimed at hearing that she was not in a relationship with the father of her second child, and the pregnancy was a result of a brief liaison. It therefore accepted that she is a single woman and the mother of two children under the age of [age]. It is accepted that single mothers with children would form an identifiable particular social group in Sierra Leone. Her evidence is that her parents are deceased, her sister has relocated to [City 2] in [Country 1]. The applicant is also a single mother in Sierra Leone without family support, a further accepted identifiable particular social group under s 5L of the Act. These are social groups identifiable by a characteristic or attribute common to all members that is innate or distinguishes the group from society (their gender or status as single mother without support) and the characteristic is not the fear of persecution.
Regarding her fear of harm on this basis the applicant claims that she feared harm from the community because of the associated stigma of being a victim of an attempted rape and that her people will think her daughter was the outcome of that attack. She told the Tribunal that sexual violence is common, people will assume this was the true source of her pregnancy and that the community is very prejudiced against women they perceive as spoiled or shameful. She also argued that it would be dangerous for her to live on her own as a single woman, and she feared for her life and that of her children. She feared violence towards her children, particularly her daughter. She claimed that she could not return to her previous employment. The Tribunal accepts this claim given the funds her employer invested to send her to Australia, and that there is no comparable [Occupation 2] sector in Sierra Leone to Australia in which she could secure employment. Her responsibilities as a single parent further acted as a barrier to ongoing employment.
The Tribunal accepts that the applicant has a genuine subjective fear of harm based on her past experience of violence and her status as a single mother, and her concern about being able to protect and provide for her children in the future. In considering whether there is an objective basis, the Tribunal has considered information from a range of sources as set out below.
In their most recent report on human rights practices, the US Department of State[9] reports that women in Sierra Leone face widespread societal discrimination, including in access to credit, equal pay for equal work, and the ownership and management of a business. They reportedly do not have equal economic opportunities or social freedoms. In Sierra Leone, the European Union Agency for Asylum documents that women doing paid work are disproportionately employed in the informal sector, with fewer regulations leaving them vulnerable to lower wages and job losses.[10] In the academic paper, ‘Exploring gender, health, and intersectionality in informal settlements in Freetown ’Women who arrived new to a community and did not possess land had ‘limited say in community affairs’ hence ‘being alone–and without support–was also a major factor in hardship’.[11] They further report that in urban Freetown (from where the applicant hails), violence and discrimination against women and girls in schools and communities persist.[12] UNICEF comments that there is an absence of child care and report only a very small number of formal workers in government and private sectors have guaranteed social security benefits and it is estimated that only two to three per cent of the total population fall into this category.[13]
[9] 'Country Reports on Human Rights Practices for 2022 - Sierra Leone', US Department of State, 20 March 2023 at page 17
[10] 'Situation of women without a support network; access to housing, healthcare, and employment, including in Freetown', European Union Agency for Asylum (EUAA), 16 August 2023 at p.4
[11] Conteh, A. et al., Exploring gender, health, and intersectionality in informal settlements in Freetown, 23 March 2021, p. 16
[12] Ibid at p 5
[13] National Social Protection Strategy for Sierra Leone 2022-2026, November 2022, National Social Protection Strategy for Sierra Leone.pdf (unicef.org) p.100
According to the United Nations Development Program (UNDP), there is an increasing trend in sexual and gender based violence in Sierra Leone[14] and that it continues to be one of the most pervasive forms of human rights abuses in the country. [15] Among other things according to the UNDP, a lack of stable jobs and means of income generation contributed to what is known as 'unequal transactional sex out of material need', making women more vulnerable to sexual violence.’[16] Regarding the drivers of sexual and gender based violence in Sierra Leone, the UNDP lists the following factors relevant to the applicant;
i.Economic vulnerability, being a teenage girl, being or having been in a relationship and a past experience of violence. It is noted that Sierra Leone is ranked as one wo the countries with the lowest Human Development Index in the world with 81 of its population living in poverty, and that the economic situation has left women in an extremely vulnerable position.[17]
ii.Community drivers arising from patriarchal practice and specific belief systems and behaviour which negatively influence women’s lives in the personal, sexual, educational, reproductive, professional and economic dimension.[18]
iii.There is tolerance and normalisation of power relations and violence that oppress and condemn women to dependency and vulnerability which are maintained by the community. [19]
iv.Hegemonic masculinity, exemplified by the “ownership” of women from an early age, the condition of passing initiation, the importance of virginity, early marriage and the stereotype of women owing obedience to males of their family. [20]
v.Impunity of perpetrators and lack of trust of the general population in state institutions due to the perception of state corruption.[21]
vi.The institution framework that lacks the necessary capabilities and resources to be effectively implemented especially in terms of the prosecution of perpetrators and the support given to victims.[22] .
[14] As above at p 15
[15] As above at p 17
[16] UNDP, Capturing the Socioeconomic and Cultural Drivers of Sexual Violence and Gender-based violence in Sierra Leone, 12 October 2022, UNDP_Sle_Drivers-of-SGBV-Report-Sierra-Leone.pdf p. 38
[17] As above at p.36
[18] As above at p. 47
[19] UNDP, Capturing the Socioeconomic and Cultural Drivers of Sexual Violence and Gender-based violence in Sierra Leone, 12 October 2022, UNDP_Sle_Drivers-of-SGBV-Report-Sierra-Leone.pdfAs at p. 50
[20] As above at p. 53
[21] As above at p. 56
[22]As above at p. 58

The US Department of State provides the following further commentary with respect to women:
The law criminalizes rape of both men and women, with a statutory minimum of 15 years’ imprisonment for offenders. The law specifically prohibits spousal rape. The law also criminalizes domestic violence, punishable by a substantial fine and two years’ imprisonment. Although awareness of rape and domestic violence increased over the years, according to the HRCSL and the DHRMGs, indictments were rare, especially in rural areas, due to medical reporting requirements, high court fees, and an inefficient judicial system. Rape was common, and survivors of sexual offenses, often at the encouragement of their families, tended to settle out of court with offenders. As a result, a culture of impunity persisted, which perpetuated gender-based violence. The FSU within the SLP reported increased cases of rape and sexual assault, while arrests and convictions of perpetrators were negligible.[23]
The law criminalizes sexual harassment. It is unlawful to make unwanted sexual advances, repeatedly follow or pursue others against their will, initiate unwanted communications with others, or engage in any other menacing behavior. Offenders faced substantial fines or imprisonment not exceeding three years, but authorities did not always effectively enforce the law. No reliable data were available on the prevalence of sexual harassment.[24]
[23] 'Country Reports on Human Rights Practices for 2022 - Sierra Leone', US Department of State, 20 March 2023 at page 14
[24] As above at p. 15
Freedom in the World 2022 Report on Sierra Leone[25] also sets out the following with respect to issues for women and protection from violence:
Reports of rape and domestic violence rarely result in conviction, and the police unit responsible for investigating and prosecuting these crimes remains underfunded and understaffed. In 2019, Parliament passed the Sexual Offences Amendment Act, which allows life sentences for those convicted of raping a child.
Women experience discrimination on personal status matters such as marriage and divorce. Customary law governs many of these issues, making it difficult for women to seek legal recourse.
[25] Freedom House (Author): “Freedom in the World 2022 - Sierra Leone”, Document #2071956 - ecoi.net
A review of the relevant country information cited above leads the Tribunal to accept that there is an objective basis to the applicant’s fear of harm. On the basis of the applicant’s membership of the particular identified social group, the country information above indicates that having such characteristics the applicant would face widespread discrimination, threats to her capacity to subsist and serious harm in the form of gender and sexual based violence which the Tribunal is satisfied would amount to serious harm.
When coupled with the applicant’s risk due to her support for the APC, the Tribunal is satisfied that there is a real chance, in the sense that it is not a remote or far-fetched possibility that the applicant would face serious harm if returned to Sierra Leone as a consequence of her actual or imputed political opinion and her membership of a particular social group, being single women or single mothers without social support.
Does the real chance relate to all areas of the country?
President Julius Bio of the SLPP again won the most recent presidential election in June 2023. There is limited open source reporting of political violence after this election.[26] An article in Nightwatch, alleges that the police and army have been regulated to terror and oppression tools after the SLPP took over state governance in 2018.[27] While most interlocutors of the EU EOM saw the police as generally biased in relation to attacks on the APC during the election and adequate protection. The Tribunal accepts that particularly in times of election the fears of the applicant arising from her political opinion would be prevalent throughout the country.
[26] 'SIERRA LEONE 2023 Final Report - General Elections 24 June 2023', European Union Election Observation Mission Sierra Leone, 10 October 2023,p 43
[27] Election Investigation… New Battle Begins between SLPP and APC – Cocorioko
Regarding the specific characteristics of the applicant as her membership of a particular social group, the country information considered indicates that violence against women is pervasive in Sierra Leone, that women without support are economically vulnerable and consequently more vulnerable to violence and exploitation. Despite the existence of laws prohibiting sexual and gender based violence, community prejudices, lack of actions taken by the state and lack of capability by the state have seen violence and harm feared by the applicant persist.
The Tribunal is therefore satisfied that effective protection measures are not available to the applicant.
The Tribunal also accepts that the real chance of persecution to the applicant on the basis of the combination of her political opinion and her membership of a particular social group relates to all areas of the country. Particularly it is noted that violence against women is reportedly more prevalent in rural settings, and also prevalent is greater economic and food insecurity and lack of access to essential services.[28]
[28] UNDP, Capturing the Socioeconomic and Cultural Drivers of Sexual Violence and Gender-based violence in Sierra Leone, 12 October 2022, p. 48
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).
Right to enter and reside in a third country
Even when the applicant is found to be a person in respect of whom Australia has protection obligations, there is a qualification in s 36(3) of the Act which sets out that Australia is taken not to have protection obligations to non-citizens who have not take all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of return from that country to a place where they face such treatment.[29]
[29] Sections 36(4) to 36(5A) of the Act.
Sierra Leone is one of the partner states of the ECOWAS established by the ECOWAS treaty signed in 1975, with the aim of promoting regional economic integration. ECOWAS consists of 15 partner states including Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Mali, Niger, Senegal, Sierra Leone and Togo. DFAT reports that:
The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[30]
[30] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 3.2
According to DFAT while all member states have ratified the Free Movement Protocol, gradual efforts to progress the ECOWAS protocols at the national level across member states are ongoing and implementation challenges persist. There has been some success at the Right of Entry, although only the first phase of the ECOWAS framework for regional integration (visa-free entry for 90 days) has been implemented by all member states.[31] Further, few ECOWAS member states have adapted their legislation to be in accordance with the 1979 protocol and supplementary protocols. [32]
[31] As above at 3.4
[32] As above at 3.5
The Tribunal raised with the applicant at the hearing of free movement through ECOWAS states and her evidence was that her sister had relocated to [City 2] in [Country 1]. The applicant claimed that although she is contact with her sister, that they were not close. Her sister was also single with three small children and was struggling to support herself most of the time. She claimed that she could not rely on her sister. Further, the applicant maintained that her work experience in [Occupation 2] was of limited value as she was not aware there were similar [positions] in many of the ECOWAS nations.
The granting of rights of residence and establishment to ECOWAS community citizens is not guaranteed and refusal is possible on public order, public security and public health grounds. Also, 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.[33] Poverty also continues to be a major challenge in the region, DFAT reports that more than half of ECOWAS’ total population live on less than one dollar per day, and 10 of the world’s poorest countries in 2018 were in the ECOWAS.[34] The reliability and efficiency of passport processing at land border crossings is variable, and rivalry between Francophone and Anglophone countries can occasionally manifest in the rejection of other countries documents.[35] DFAT also notes media reports in October 2018, of Sierra Leoneans, together with Guineans and Liberians experiencing delays and disrespect for their travel documentation at borders when crossing between each other’s countries for trade. [36]
[33] As above at 3.19
[34] As above at 2.6
[35] As above at 3.17
[36] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 3.17
During the first signs of COVID-19 in West-Africa in March-April 2020, 12 of the 15 ECOWAS countries closed their borders, and the remaining countries limited even essential crossings. This operated to heavily impact the freedom of movement for people in the ECOWAS area.[37] The International Organisation for Migration reported that while many countries have reopened their borders, various health and travel restrictions remain and continue to have impacts on migration and mobility in the subregion.[38]
[37] Free Movement of Persons in West Africa Under the Strain of COVID-19, Abdoulaye Hamadou, 2020
[38] 'World Migration Report 2022', International Organization for Migration (IOM), 01 December 2021
Of the West African states DFAT assessed in 2020 that the security situation remains unstable across many ECOWAS member states, armed groups continue to perpetrate serious human rights abuses and attacks against civilians, for example in Mali, Niger, Burkina Faso and Nigeria.[39] DFAT further comments that 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.[40] While both women and men face extortion and general harassment when trying to enter another ECOWAS country, women are reportedly more likely to face sexual harassment and sexual exploitation.[41]
[39] DFAT Thematic Report Economic Community of West African States (ECOWAS) 3 December 2020 at 2.12
[40] As above at 2.16
[41] The ECOWAS Free Movement Protocol and Diversity of Experiences of Different Categories of Migrants: A Qualitative Study, Yeboah, Thomas, et al., International Migration, October 2020, p.11
Given the limitations in freedom of movement between ECOWAS countries, the Tribunal is not satisfied that the applicant could exercise a right to enter and reside in another ECOWAS state. Furthermore, although the applicant may not face a real risk or harm on the basis of her political opinion, the Tribunal is also satisfied on the country information given the applicant’s membership of particular social groups of a single woman, single mother with young children, and a single mother without family support, that the applicant would have a well-founded fear of persecution due to her membership of these particular social groups within other ECOWAS countries. Therefore the applicant is not excluded from Australia’s protection obligations by the operation of s 36(3).
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Penelope Hunter
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.
…

[2024] AATA 1021

16 January 2024

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