1905413 (Refugee)

1905413 (Refugee) [2024] AATA 4158 (6 September 2024)
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DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Marta Mamarot
CASE NUMBER:  1905413
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Angela Cranston
DATE:6 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 6 September 2024 at 11:51am

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – membership of particular social group – homosexual woman – relationship after divorce from husband – threats to partner while applicant in Australia on work trip – disowned by family – father’s tribal and religious leadership positions – partner in hiding and unable to be contacted – work and limited social activities in Australia – credibility – inconsistent evidence about relationships and contacts with family members – authenticity of news reports – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 438(1)(a), 473GB
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2019 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 31 October 2016. In her application, the applicant stated the following dated 3 April 2017:
I fear that if I were to be forced to return to Sierra Leone that I will be seriously harmed because of my sexuality.
My background
I was born in Freetown, Sierra Leone on the on [Date]. I have one sister and [brothers]. I am the [birth order] child.
I grew up in Freetown, Sierra Leone.
I am divorced and have one child.
I completed my schooling in Freetown and studied [at] [University] from [Year range]. [University] was based in Freetown at that time due to the war. It has since relocated.
After I left university l got a position as [an occupation 1] for [Employer]. I held that role until my sexuality became public in October 2016.
Problems in Sierra Leone
I met my former husband [Mr A], at High School and we also went to University together. He was studying [subject].
We had a son in [Year], [and] married in 2012.
The marriage broke down due to my husband’s infidelity and we divorced in February 2015.
When l left my husband, I moved in with my parents.
I had custody of my son after the divorce and my former husband did not see much of our son.
After my separation a friend of mine, [Ms C], provided me with a lot of support. She is a business woman with her own [business] in Freetown. We had been friends for a long time so I spoke to her about my relationship breakdown. I told her about my husband’s infidelity and how he had a relationship with a woman who was my best friend and a work colleague of mine. [Ms C] provided me with support and understanding and we began to see each other quite frequently. She even stayed with me at my parents’ house some nights. When she stayed at my place we slept in the same bed. It is common to share a bed with friends in Sierra Leone
After about a month of being at my parents’ house, [Ms C] started to be affectionate towards me in bed. I rejected her many times by pushing her away and asked her “why are you into this.” She said to me words to the effect “because men are liars and cheaters, let’s stay together”.
[Ms C] was persistent and I felt very grateful to her for her support since my marriage breakdown. I didn’t want to tell her to leave my house, so I eventually stopped resisting her and we formed a relationship about a month or so after I had moved to my parents’ house.
From that time, [Ms C] stayed over more often and sometimes I stayed at her house. We went out together to dinner and to the beach. We didn’t go to night clubs. We spent a lot of time together.
I had not known [Ms C] was a lesbian before she began to be affectionate towards me. However I then realised that she had never had a boyfriend. She was the first person I had ever met who acknowledged that she was a lesbian.
I did not know other lesbians. Everyone in Sierra Leone who is not heterosexual hides their sexuality. [Ms C] had been in other lesbian relationships but she did not keep in-touch with her former partners.
[Ms C] and I were constantly together every weekend and [Ms C] was often at my house. I had not looked for another boyfriend or gone out with any men and this was unusual in Sierra Leone. Generally in Sierra Leone it was expected that a woman should find another husband if she separates. Even my father kept telling me to find another husband and move out of my parents’ house.
Most women in Sierra Leone are expected to be married, if you are not married by thirty, your family and people in the neighbourhood would abuse you and tell you to get married. “You are old, get married”.
It is unusual for two young women to live together while they are working. There might be some young women who live together while studying at university but by the time you have left university it is expected that a woman would get married or have a boyfriend and not live with another woman.
When [Ms C] and I went out, we did not do anything that would indicate we were in a sexual relationship. However, I was worried about being in this relationship. People, mostly young men and women in the area where we live came up to [Ms C] and I, and said words to the effect:
“What’s going on?”
'We see you two are close" "We think you are lesbians"
"You need to be careful about what you are doing"
We replied to the effect:
"We are just friends"
"We are doing nothing" "Why can't we be friends"
We were asked these questions about once or twice a week. The tone was always threatening when they asked these things.
After I left my husband and moved into my parents’ house, men in the neighbourhood had asked me out and l had turned them down and said words to the effect:
"No, I don't want anything to do with a man" These men said words to the effect:
"She [Ms C] is why you don't want to go out with us, you are a lesbian".
I think they suspected us because I was refusing to go out with men who asked me.
[Ms C] and I had thought about what we could do to have a safe relationship. We had considered moving to the provinces, but I would lose my job and she would have to close her business and we would have the same problem wherever we went once people started to suspect us. People would become suspicious after a short time if we weren't looking for husbands and spent all of our time together. I was also concerned about bringing my son with me because I didn't want him to know about my relationship but I didn’t want to leave him behind.
My Family
My family is very well known in Freetown particularly amongst the [Name] tribe which is [one] tribe in Freetown.
My father is [Mr D]. He is on the Executive of Elders of [the tribal] mosque. It is the biggest mosque for the [Name] tribe in Freetown. [Details deleted].
My father inherited this role because of his family's long association with the mosque. To take on the role, he also had to have a long association with the mosque himself which he has had since childhood. My father is therefore very well known in Freetown and particularly amongst our [tribal] community. He is seen as a very senior religious leader.
Coming to Australia
I have worked as [an occupation 1] for [Employer] since I finished University. My job was to try to facilitate [services] to new areas. My employer asked me to go to [an Event] in [City, Australia] in October 2016 held by [Organisation]. It was my first time travelling. I already had a passport because I knew that in my role I would be likely to have to travel at some point, even to other African countries.
I left my son with my parents as I was only meant to be away for 2 weeks.
I arrived in Australia on [date] October and on Monday 10 October [Ms C] called me while I was in [City, Australia]. She was not using her own phone and said words to the effect:
"They are looking for us. They are trying to kill us. They know we are lesbians. They saw pictures of us on what's app". She was very distressed. I said words to the effect:
"How did they get the photos?" but [Ms C] didn't answer, she was very upset. The phone went dead. I tried to call back the number she had called from but the phone was turned off. I don't know where she was or where she was going. I have not heard from her since. I have tried to contact her since several times but her phone is always off.
[Ms C] and I had taken some pictures of ourselves in private. Some were intimate and clearly indicated we were in a sexual relationship. These photos were on [Ms C]'s phone. I assume these were the photos [Ms C] was talking about and do not know how those pictures became public.
A few hours later, after I kept trying to call [Ms C], I called my brother. He was very angry and said words to the effect:
"This is a very disgraceful act why have you done this to your family, they have photos of you and [Ms C]."
I then called my mum who said words to the effect:
"You have killed me. The youths came to our house looking for you."
The youths didn't know I was out of town, they thought my parents were hiding me. My mum was crying.
In Sierra Leone there are groups of young people who take issues into their hands, like a vigilante group. A group like that in my neighbourhood said to my parents that they don't want lesbians in our community. They are afraid for their children and most are religious Muslims or Christians and don't want lesbians or gays in their community.
The police provide no protection for people if actions are taken against them by this group. The police would not do anything if the group inflicted harm upon me or my family, because of my sexuality.
After the [Event] in [City, Australia] ended I flew to Sydney as this was part of my original plan. Sometime between the [event] and arriving in Sydney I lost a small bag I was using to carry my money and phone. I therefore lost all my contacts. While I know [Ms C]'s phone number and my parents' and siblings' numbers, I cannot call [Ms C]'s relatives to try to find her as I don't remember their numbers.
I was speaking to my mother 3-4 times a week but since about beginning of November I can only speak about once a week as I don't have enough money.
My father has disowned me. As I have said he is a very senior member of the mosque and feels my relationship has shamed him in front of the entire community and his colleagues. He says to my mum that if he sees me he will kill me. He says I have ceased to be his daughter.
My mum had sent my son to stay with a friend of mine for several weeks because my father did not want my son there due to how my father feels about me.
My son is now back home with my mother. While he was staying with my friend, he didn't go to school in Freetown as it was too far away. He needed to be enrolled in the local school but my friend told my mother she was too busy to take my son to and from school so my mother decided to go and get him back to live with her. I was afraid about how my father would react upon my son's return but my mother has not said anything about that and I don't want to ask. I speak to my son about once a week and he is back at school in Freetown. When I speak to him he always cries and asks when I will be coming home.
My siblings are also angry with me. I used to have to call them to make sure my son is ok when he was with my friend but now I do not speak to them.
My mum is also angry and sad but she doesn't want anything bad to happen to me and tells me to stay away from Sierra Leone
When I speak to my mum each week, she says that the situation has not calmed down very much and the youth vigilante group is still looking for me.
Also on the departmental file were the following:
Referral to [Organisation 2] dated 7 November 2017 for assessment due to depression, and the [Organisation 2] summaries themselves dated 5 July 2018, 6 June 2018, 10 April 2018 and 20 December 2017, 17 November 2017, 30 August 2017, 25 May 2017,
Various blogs/online sites/newspaper articles the following of which identified the applicant by name:
·     [Title] dated [October 2016], in [News source] which depicts the applicant kissing another woman and reads in part:
[Deleted].
·     [Title], dated [October] 2016. That states the following:
[Deleted].
·     [Title] dated [Oct] 2016
·     [Title] [dated] December 2016
Letter from [Organisation 3] stating the applicant had been a client since 20 October 2016 and that the applicant attended a LGBTQI support group which was a joint initiative between [Organisation 3], [Organisation 2] for people who had disclosed they identified as being LGBTIQ.
Letter from [Group] stating [Ms E] met the applicant in 2017 at a support group for LGBTIQ people seeking asylum run by [Organisation 3], that the applicant was an active member of the [Group] and had participated in many meetings and was also active in the online group often sharing useful information with other women.
Submissions from [Lawyers] dated 24 August 2018 that state the applicant’s claims were credible however the applicant’s narrative must be considered in light of her cultural background and she did not find it easy to discuss her sexuality and her history. The submissions also state the following:
We note that the article in [News source] gives a partially incorrect name for her husband, using her son’s middle name for her husband’s middle name. It also refers to her having a daughter. The applicant does not officially have a daughter but took on the care of a little [girl], after the child’s parents died during the Ebola outbreak in Sierra Leone. The applicant believes whoever reported to the press assumed [the girl] was her child because she lived with the applicant.
It is submitted that the applicant’s response in the interview that no one knew of her relationship with [Ms C] after she had provided an article with a photo taken by a third party when is understandable considering in context. The applicant gave this response when being questioned regarding the risk her sexuality posed to her safety. It is therefore understandable that she was only considering those who might harm her when asked who else knew fo the relationship with [Ms C]. She did not consider that her partner’s lesbian friends knowing of their relationship were the point of the question, these were not people whose knowledge of her relationship posed any threat.
Further submissions from [Lawyers] dated 8 January 2019
The delegate refused to grant the visa and the applicant applied for review.
To the Tribunal the applicant submitted the following statement dated 27 July 2024:
Background
I provided a statement with my original protection visa application. Its dated 3 April 2017 but still true and accurate.
I am single and living alone in a granny flat. I pay $290 rent per week for my place. I work on a part-time basis [in] [NSW]. I work around 66 hours per fortnight but I get additional shifts. I am [an occupation 2].
When I arrived in Australia [Organisation 3] helped me with my protection application. My case officer suggesting I join their LGBTQI+ support group. I receive their emails and prior to 2018 I was attending the catchups. Prior to covid I stopped attending. It was hard for me to fit in, and I wasn't interested in the activities they organised like attending pubs. I am a [Age]-year-old Muslim woman. Most of the group consists of younger people. It was hard to relate and find common ground. I last attended a meeting around February 2024.
Living in Australia in a safe country has given me time to consider and explore my sexuality and I identify as a Lesbian. However, it's hard to make connections and meet people. The Sierra Leonean community in Sydney are not welcoming or accepting. I have distanced myself from them by not attending any functions or maintaining relationships. There is still a level of secrecy and I am a very private person.
Coming to Australia
I arrived in Australia in October 2016. Before arriving, I worked as [an occupation 1] in a [company]. My job was to facilitate [services] to new areas. The job [occupation 1] had a different meaning back in Serre Leone than Australia.
I arrived in Australia for [Event] about [Work] called [Event name] in [City, Australia] [October 2016]. I travelled alone representing the organisation.
My employer filled out the visa application. They paid for the trip and the intention was for me to stay in [City, Australia] in a hotel. The employer paid for one week's accommodation and gave me an allowance to cover the second week accommodation. I arrived in Australia with 1 suitcase and around $USD1500 in cash. I was the main carer for my [son]. I left him with my parents in Freetown. I was never intending to stay in Australia otherwise I would have tried to bring my son.
From memory I didn't check the visa application or even see it before my employer lodged it. Some of the information they used on the application was from my employee paperwork like the fact I was engaged. I was engaged around [year] this is the time I finished University and started working. I got married after my son was born in [Year].
A lot has changed since my family found out about the relationship, I had with [Ms C] in October 2016. My parents split up after that. My Father refused to look after my son while my Mum refused to stop caring for him. I maintained contact with my Mum until she passed away on the January 2021. I was in regular contact with my Mum before she passed. I sent money to her. I saw my mums whatapp profile photo changed to rest in peace grandma. I called my mums phone and my sister [Ms G] picked up the call and told me my mum passed away. I had some contact with my sister after that about the burial because they wanted me to contribute money. The contact with my sister ended after the sacrifice in May 2021.
Since my Mum's passing my son has had a very unstable life. My Father who is old now and my siblings (1 sister and [brothers]) all refuse to accept or look after him. He is excluded from the family. His father is in [Country 1], and they don't have a relationship.
Shortly after the passing of my Mum my son was living with the neighbour. I was sending money to support him and his schooling. Then that ended and now he is living with a person called [Ms H]. He has moved around 3 times. He has no support base.
I speak with my son regularly. He is now [Age] years old. He understands why I am in Australia and is resenting me. He blames me that his life is hard and that he has no parents or family. He has mentioned a few times that he saw his uncles in town. They have been aggressive and rude towards him. They have threatened me, and they told him to pass the message onto me. He is also against me being being gay. He is embarrassed and ashamed that I his mother is like that.
Returning Back to Sierra Leone
I have now been in Australia since 2016. It's been 7 years. However, I am still very afraid for my life if I am forced to return back. My Father is elderly, so I don't fear him, but my brothers are angry and I am worried what they are capable of.
I believe if I return my brothers will kill me. I have brought shame onto the family and even after 7 years they are still making threats to my son. There is no way I could be safe.
I am unsure now after 7 years what my ex husband or his family are capable of. If I was too return, I would still be worried about them.
If I moved to another part of Sierra Leone, it would only be a matter of time before my family finds out. I come from a big family, and they are very involved with each other's lives. I couldn't live in Guinea as I don't speak French and its full of Sierra Leonie people.
News Paper Articles
I provided the newspaper articles to the Department in good faith.
My Mum provided the articles to [name deleted]. I met him in [Suburb 2], and he gave them too me.
I wasn't in Sierra Leonie when they were published. I was shocked when I saw them. A lot of the information was incorrect about me.
Those newspapers exist and the articles looked genuine to me.

The applicant appeared before the Tribunal on 1 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The applicant was represented in relation to the review.
The applicant stated she came to Australia [in] October 2016. Prior to that she lived up until she came to Australia with her parents, son, her [brothers] and extended family including her father’s sister and cousin. Her son was currently living with his friend’s mother, [Ms H]. Prior to that her son lived with the applicant’s mother from when the applicant left Sierra Leone in 2016 up until when her mother passed away. They first lived together at [name Street] and later moved elsewhere.
When asked if the applicant was currently close to anyone in Sierra Leone, she stated only her son and no one else. When asked if she had ever been close with any one living in Sierra Leone she stated no. When asked about her siblings, she stated after they found out about her sexuality in 2016 from the pictures of her with another woman they hardly spoke. When again asked if she had been close with anyone else in Sierra Leone, she stated she did not have any close relationships with anyone, and by that she meant someone she could talk to frequently or on a daily basis. When asked if she had ever had a relationship like that, she stated she had a relationship like that with her mother but no one else.
The applicant stated her protection visa application forms were completed with the help of [an Organisation 3] volunteer who wrote down her answers in English. She had not read her visa application but knew what was in it because the volunteer asked the questions. The same volunteer assisted her with her statement which she saw at the time but did not have a copy. The applicant stated she read part of her statement which was correct and the solicitor asked her questions which she answered.
The applicant stated the last time she talked to her siblings was when the incident happened. She also talked to her sister when her mother was sick and passed away in 2021. When asked why she talked to her siblings after the incident happened, she stated they talked about what happened to her but did not talk about anything else. The Tribunal put to her in her first statement she stated she talked to them to make sure her son who was staying with a friend was ok. She agreed. The Tribunal put to her earlier she said that after she came to Australia her son remained with her mother. The Tribunal also put to her she told the Department her siblings turned their back on her and her son. She stated they turned their back before August 2017 and were not checking on her son. When asked if she had any relationship with her siblings after 2017, she stated she only spoke to her sister when her mother was sick in 2020. Her mother died in 2021.
The Tribunal put to her information suggested she was sending money to her siblings in 2018. She stated she sent money to her sister for her mother. She did not send money to her brother. The Tribunal (incorrectly) put to her it had evidence she sent money to [one brother]. She disagreed and said she sent money to [someone with the same first name] who was her son’s tutor.
The applicant stated she was engaged in [Year], married in [Year] and divorced in 2015. Since then, she had been in a relationship with her partner, [Ms C]. When asked what she meant by partner, she said they had an intimate relationship and were lesbians, and that their relationship was shortly after she and her husband separated. She also stated [Ms C] was her best friend before she was divorced and by best friend, she meant they shared secrets, hung out, went to restaurants, to her business place, to the beach and to weddings.
The Tribunal put to her it had earlier asked if she was close to anyone in Sierra Leone and she said no. She said she was not thinking about friendship but family. When asked why she thought that given the Tribunal had not mentioned family, she stated she did have friends and colleagues and relationships but did not think in that direction. The Tribunal put to her she had not mentioned [Ms C] at that stage and she stated she thought the Tribunal was talking about after she came to Australia.
The applicant stated the last time she talked to [Ms C] was in October 2016 but she had not heard from her since because they had discovered their relationship.
When asked what sorts of things she did with [Ms C] when she was in Sierra Leone and when they were in an intimate relationship, she stated they would stay at each other’s houses. They also went out together on weekends and met friends and went to the beach, restaurants and other places where young people went. When asked if anything happened to her on those outings, she stated [Ms C] introduced her to two friends who were also lesbians and they went out and took photos. She also stated people sometimes suspected they were in a relationship and this occurred frequently in 2016, at times when she was alone and when they were together. The Tribunal asked why they had trouble if they went to the same places together as friends as they did when they were in an intimate relationship. The applicant stated they were staying in each other’s houses and when they were friends that was not happening. When asked if she had problems with her family before the newspaper article, she stated her only problem with her family was because of her divorce and not her relationship with [Ms C]. When asked if her family did not suspect they were in an intimate relationship then why did she have problems going out in 2016, she stated she had problems with the community who suspected they were in a relationship, they were threatened once or twice a week but sometimes this also happened when she was going to work. When it was put to her she told the Department she did not go out much socially and only went to dinner, she said they went out on the weekends.
When asked if she told anyone about her relationship with [Ms C] when she was in Sierra Leone, she stated no but [Ms C] introduced her to two lesbian friends and she thought they knew about her relationship with [Ms C] because it was like a safe space and they all stepped out together. The Tribunal put to her when the Department asked her this, she said no one knew and then the Department put to her someone must have known to have taken the photo. She stated at that stage she was not in her right mind and did not understand most of the questions.
The Tribunal put to her the Department stated her tourist visa said she was engaged. She stated her employer completed her tourist visa application.
When asked who [Mr K] was, she stated he was her cousin. When asked why she recorded his name as her emergency contact on her Australian entry card, she stated she did not remember that.
The Tribunal asked how she explored her sexuality in Australia. She stated she knew more about her sexuality but was not in a relationship. She stated she knew more about what she was looking for in a partner, knew her rights as a lesbian and back home she had to create a friendship before a relationship like the one between [Ms C] and herself could happen. She stated in Sierra Leone she could not identify as a lesbian but in Australia she could tell people without judgement and told a colleague at work, a [colleague] and she was also in the [Organisation 3] lesbian group which she joined when she came to Australia. She stated they went out, told their stories and had dinner once a fortnight but after covid, everything stopped. She stated she went to events that were put on through the help of [Organisation 3]. Outside those meetings, they went to restaurants but when asked how often, she said not much and with covid she stopped doing things with this group but received their emails. She also stated later, younger people who were not her age group went. When asked why she could not participate with this group online, she stated there was no online activities, just information. The Tribunal put to her [Ms E]’s statement said she was active online. She stated that was before covid. The Tribunal put to her people in Australia became active online during covid. She stated she did not have any activity online.
When the applicant was asked if she had done anything to locate [Ms C], she stated she asked her mother to find out where she was. Her mother sent people to [Ms C]’s hometown but she was not there. She also went to the Red Cross but since [Ms C] was in hiding, she did not want to endanger her so did not pursue that. She also rang her number, but her phone was off. She also said she searched for her in Guinea but nothing else. The Tribunal said she earlier said two people knew about her and [Ms C] and asked if she contacted them. When asked what make her think [Ms C] was in hiding, she said people were looking for her on 10 October. The Tribunal put to her that if [Ms C] had gone missing, she did not seem to have done much to locate her. She said she called her parents, and checked with her friends.
The applicant stated Islamic teaching stated her relationship was not acceptable in the sight of God. When asked how she lived with those two ideas, she stated she had not done anything wrong, and only God could judge her.
The applicant stated her mother sent the newspapers articles. When asked why, she said she wanted to show the applicant what she had done to her family. When put to her it needed to think about whether her documents were real or fraudulent and that in Sierra Leone there were fraudulent documents, she stated she did not know about that.
The applicant said everything she said was the truth. The Tribunal put to her that her tourist visa application said she was engaged and her entry card had identified [Mr K] as her emergency contact. She said that was information her employers gave because she had not updated her profile and [Mr K] was family and her cousin.
The applicant stated she could not return to Sierra Leone because they would not accept her as a lesbian.
The Tribunal put to her it needed to think about whether it accepted what she was saying was true or not.
The Tribunal subsequently wrote to the applicant as follows:
[Mr K]
Your incoming passenger card completed when you were entering Australia lists [Mr K] as your emergency contact.
This information is relevant to the review because the Tribunal may find that inconsistent with your answers to the Tribunal at hearing on 1 August 2024 which did not disclose you were close to [Mr K] and you said you were only currently close with your son in Sierra Leone and had never been close with anyone living in Sierra Leone but then said you had been close with your mother and no one else.
Your tourist visa
Your tourist visa application states your relationship status is engaged.
This is relevant because the Tribunal may find your tourist visa application evidence of the stated facts therein and you are not credible. If the Tribunal finds this, then subject to your comments it would affirm the decision under review.
Departmental interview
At departmental interview on 17 August 2018, it is orally recorded the following conversation occurred:
Before you left Sierra Leone who was aware of your relationship?
Everybody was suspicious.
Did anybody know? Did either of you tell anyone?
I didn’t tell anyone.
Did your partner tell anyone?
No, she didn’t.
This is relevant because the Tribunal may find this answer inconsistent with what you told the Tribunal at hearing on 1 August 2024 which was that [Ms C] introduced you to two lesbian friends and you thought they knew about your relationship with [Ms C] because you stepped out together. If the Tribunal finds this then subject to your comments, it would affirm the decision under review.
The Tribunal received the following response from the applicant:
[Mr K]
I didn't remember completing the incoming passenger card until I was shown the card at the AAT hearing.
[Mr K] is a family member, and we grew up together. We lived in the same house, and he is in the same age group as my older [sister].
When we were young [Mr K]'s mother brought him to our home and he was raised with us as our older brother. We called him "brother" instead of "cousin".
Growing up [Mr K] was the oldest male in our house after my father. I have younger brothers but no older brothers. He was respected and considered as one of the heads of our family. This is why I think I put his details down.
My Tourist Visa
When I was employed as [an occupation 1] with [Employer] I had to complete an employee form with my personal information. At the time of completing the form I was engaged and probably ticked the box indicating that.
After my marital status changed, I didn't update it with my employer. There was no need, and I wasn't required to update my details with my employer.
My employer completed all the paperwork including the visa application for Australia. I never saw the application or checked it. I relied on them. I believe that the visa application was completed based on my employee form.
Departmental Interview
During the Departmental interview I accept that I answered no when asked if my partner had told anyone. I was very stressed, as the process was new to me, and by the end of the interview, I wasn't myself-I was just scared. I was also struggling with my mental health, which made it particularly hard to go through the interview that day.
I was uncomfortable with authorities from my experiences in Sierra Leone. I saw what happen to LGBTI+ community and how they were treated. This added to my stress on the day.
[Ms C] has always been a lesbian and was well connected to the underground lesbian community in Freetown. She had other partners and relationships in the past. She had lesbian friends with whom she was open about her sexual orientation. I wasn't connected to this community because I was new, but she introduced me to two friends.
The protection visa process has been very difficult and stressful for me. It has cost me a lot: the relationship with my family overseas and the ability to attend my mother's funeral or even say goodbye when she was sick. She was the only one who truly stood by me and took care of my son, which makes it especially painful.
Additionally, my son has been left without a mother and without proper carer since my Mother died. He has been bullied and ostracized by family members because of my sexuality, and he is starting to resent me for what he's going through. His life is becoming increasingly difficult as he grows older because people know what his mother has done and who his mother is.
I've placed a heavy burden on my son and he has been disowned by my family. Now, I'm in Australia without a community, as the Sierra Leonean community has not been welcoming. There's no space for me as a gay woman in that community. I've also tried to make friends through the [Organisation 3] group, but that has been particularly difficult due to my religion, age, and the fact that their activities are not suited to me.
I've worked hard and am contributing as [an Occupation 2]. I'm doing good work, but I feel quite isolated. I can't imagine having to return to Sierra Leone if this visa is refused. I'm deeply concerned that if I do return, it won't be long before my brothers find and come after me. Coming from a conservative Muslim background my sexuality has brought a lot of shame, and it's not something that is easily forgotten or buried. It's a persistent shame with my family, and they have not forgiven me.
I acknowledge that there have been some inconsistencies with the evidence and advice provided. However, I have gone through a lot, and I am still enduring difficulties. I am isolated here. Although I have friends and have built a life, it is incredibly challenging. I want the Tribunal to consider these factors when deciding whether I am entitled to this protection visa.
COUNTRY INFORMATION
Document fraud
The December 2020 DFAT thematic report on the Economic Community of West African States (ECOWAS), which includes Sierra Leone as a member state, states that ‘corruption is highly prevalent across the ECOWAS region, and can manifest in relation to obtaining all forms of identification document’.
DFAT assessed that ‘systems of government administration lack adequate financial, human and material resources and capacity to ensure document integrity and prevent corruption. DFAT assesses that, although degrees of severity vary across ECOWAS member states, generalised corruption is common and documentation is commonly and easily obtained with little to no assessment of entitlement. DFAT notes Guinea is reported to be the most extreme case in this regard. DFAT also assesses there is a well-established history of individuals across ECOWAS using fraudulent (counterfeit or altered) documents and fraudulently obtained genuine documents to obtain visas’.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Preliminary issue
Section 438 Certificate

As a preliminary matter, the Tribunal notes that there is a certificate purportedly issued under paragraph 438 (1)(a) of the Migration Act relating to the Department's file [Reference]. The certificate stated that the disclosure of the information to which the certificate related would be contrary to the public interest because the information was given to the Minister or to an officer of the Department in confidence.
The Tribunal considers this document irrelevant to its assessment of the protection visa application and has not taken it into account.
The Tribunal also notes there was a certificate purportedly issued under section 473GB of the Migration Act 1958. The certificate stated the disclosure of the information to which the certificate related would be contrary to the public interest because the document contained information, where the release of such information would impact the effective operation of the Department.
The Tribunal considers this document irrelevant to its assessment of whether the applicant is a refugee or meets complimentary protection criterion and has not taken it into account.
Substantive issue
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Sierra Leone and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Sierra Leone, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded the decision under review should be affirmed.
In her protection visa application, the applicant stated her sexuality became public in October 2016, that after her divorce she began a relationship with [Ms C], that they were constantly together, that when they went out, they did not do anything that would indicate they were in a sexual relationship however people, mostly young men and women in the area questioned and suspected them. She also stated after she arrived in Australia, [Ms C] called her and said they were trying to kill them because they knew they were lesbians and saw pictures of them on whats app. She stated a few hours after that call, she kept trying to call [Ms C] but then called her brother who was very angry. She also stated her father disowned her, her mother was crying and sent her son to stay with the applicant’s friend for several weeks but was now back home with her mother.
The Tribunal finds the applicant’s evidence in relation to her claims to be unconvincing. Firstly, the applicant’s tourist visa application lodged on 30 August 2016 stated her relationship status was ‘engaged’. The applicant stated her employer completed the paperwork based on paperwork that said she was engaged and that had not been updated after her marriage in 2012 because she hadn’t been required to update those details.
It remains curious why any employment form would ask if the applicant was engaged. The Tribunal has also considered other evidence such as the applicant’s incoming passenger card which listed [Mr K] as her emergency contact even though, according to her written claims she was allegedly in a relationship with [Ms C] at that time and spoke to her when she got to [City, Australia]. When asked at hearing who was [Mr K] and why he was her emergency contact, she initially stated he was her cousin and she did not remember identifying his name as her emergency contact. She then said he was family. After hearing, she said they lived in the same house and growing up, [Mr K] was the oldest male in their house after her father, that he was respected and considered as one of the family heads and that is why she recorded his details. While the Tribunal has considered this, the applicant failed at hearing, when specifically asked, to identify [Mr K] as someone she was close to in Sierra Leone and claimed instead to only be close to her mother and no one else. She even failed when initially asked at hearing to identify she was allegedly in a close relationship with [Ms C]. When this was put to her at hearing, she stated she answered the question thinking about family and not friendship even though the Tribunal did not preface its question about close relationships by mentioning family. She also said she answered the question thinking about after she came to Australia however the Tribunal rejects that explanation since it specifically asked her if she had ever been close with anyone living in Sierra Leone and further asked if she ever had a close relationship similar to her close relationship with her mother (which according to her meant she could talk to her frequently or on a daily basis) to which she said no.
Leaving the applicant’s claimed relationship with [Ms C] aside, the Tribunal has difficulty accepting that even if her employer completed her tourist visa application and knew the applicant was engaged in 2008 they would proceed to use dated information to lodge a 2016 overseas visa application on her behalf without first consulting her. Again, the Tribunal has difficulty accepting the applicant would also list [Mr K] as her emergency contact even though, according to her written claims she was allegedly in a relationship with [Ms C] at that time, did not identify at hearing she was close to [Mr K] and when specifically asked, only said she was close to her mother. The Tribunal does not consider it unreasonable to assume that if the applicant was in a relationship with [Ms C] she would have listed her as her emergency contact or when specifically asked, would have identified her as someone she was close to. Again, the Tribunal does not consider it unreasonable to consider she would have identified [Mr K] at hearing as someone she was close to especially given she included him as her emergency contact in preference to [Ms C] and her mother.
After hearing, the applicant stated [Mr K] was a family member, they grew up together, lived in the same house, she called him "brother" instead of "cousin" and that because he was respected and considered as one of the heads of the family that was why she thought she put his details down however her spontaneous evidence at hearing did not suggest any of that and the Tribunal considers it to be of recent invention.
Overall, the applicant’s evidence about her alleged relationship with [Ms C] remains unconvincing. Not only did the applicant fail to identify [Ms C] as someone she was allegedly close to at hearing, but at departmental interview on 17 August 2018 when asked in the context of a third-party photograph of the couple kissing who was aware of her relationship with [Ms C] before she left Sierra Leone, she said everybody was suspicious but neither she nor [Ms C] told anyone. The Tribunal finds the applicant’s response at departmental interview failed to explain how a photo showing the applicant and [Ms C] kissing could have been taken when no one allegedly knew about their relationship. At hearing, the applicant changed her answer to the question who was aware of her relationship with [Ms C] and stated [Ms C] introduced her to two lesbian friends who she thought knew because they all stepped out together. When it was put to her that was inconsistent with her earlier evidence, she said at that time, she was not in the right state of mind and she did not understand most of the questions.
The Tribunal has listened to the Departmental interview and is satisfied the interview flowed in a way consistent with someone who understood the questions overall. The Tribunal also finds that a fair reading of the exchange between the Department and the applicant around questions about who was aware of the applicant’s relationship suggests she did understand the question ‘did anyone know?’
Later and in writing the applicant said at departmental interview she was stressed, scared and struggling with her mental health, however, if that was the case it remains unclear why she was unable to correctly answer questions about who knew about her relationship but was able to provide the Department with presumably more stressful information about her sexuality. While the applicant’s then adviser submitted in a letter dated 24 August 2018 that the applicant’s response in the interview that no one knew of her relationship with [Ms C] was understandable considering the applicant gave this response when being questioned regarding the risk her sexuality posed and it was therefore understandable she was only considering those who might harm her when asked who else knew of the relationship with [Ms C], that explanation was not offered by the applicant to the Tribunal, the Department did not preface its broad questions about who was aware of her relationship before she left Sierra Leone in the manner submitted and the Tribunal rejects the submission that a fair reading of the exchange between the Department and the applicant somehow suggests the applicant assumed the question only referred to those people whose knowledge of her relationship posed a threat.
The Tribunal considers the applicant’s explanations as to why she gave inconsistent answers in relation to who was aware of her relationship are a poor attempt to explain how it was someone took a photo of her kissing [Ms C] when no one allegedly knew about their relationship. Similarly, the Tribunal considers the applicant’s explanations as to why her tourist visa said she was engaged and why she identified [Mr K] as her emergency contact when she entered Australia as poor attempts to paper over that earlier evidence.
In addition, while the applicant initially stated at hearing the last time she spoke to her siblings was when the incident happened and she did not talk to them about anything else, her protection visa application dated 27 October 2016 states she spoke to her older sister [Ms G] and her elder brother about three times a week. Her first statement also said she talked to her siblings to make sure her son who was staying with a friend was ok but told the Tribunal at hearing her son remained with her mother after the applicant came to Australia. Given the alleged ostracization of her by her family including her siblings after the incident and her claims that her brothers were angry and if she returned they would kill her, the Tribunal finds it difficult to understand why the applicant’s evidence changed not only in relation to when she last talked to her siblings, but why she did so. It also leads the Tribunal to conclude she is not talking about things that have occurred but is making up her evidence as she goes along.
For all the reasons above, the Tribunal finds the applicant is an unreliable witness and does not accept she was in a lesbian relationship with [Ms C]. Neither does it accept they were harassed, threatened nor subjected to public scrutiny. Neither does it accept that [Ms C] has disappeared. In reaching these conclusions, the Tribunal has considered the newspaper article that mentions the applicant by name and if genuine, would support the applicant’s claims however the way the applicant said she obtained the document and the document itself remains curious. The applicant said the document, the blogs and online article were sent by her mother who wanted to send proof of what the applicant had done to her family however the Tribunal is somewhat bewildered as to why the applicant’s mother would allegedly need to send any let alone four pieces of information to do that. In addition, the newspaper article dated [October] 2016 is poorly written, grammatically incorrect, contains factual errors including (according to the applicant’s first adviser) the incorrect name of the applicant’s husband. It also provides a somewhat strange concoction of fact and fiction, providing details such as the applicant’s address, the date of her wedding and her divorce and then statements such as:
[The applicant] came from a noble and respected family and for whatever reason she got involve an such a practice she is not fit to live” he stated, noting that [the applicant] before her traveling was peacefully living with then without an iota of suspicion that she was in such a barbaric and disgraceful act.
The Tribunal finds the quality of this article varies to the rest of the articles and advertisements said to have been from the same newspaper except for one article on page 3 entitled ‘[Title]’ which also reads poorly.
The Tribunal’s overall assessment of the multitude of strange occurrences in the newspaper article together with country information that suggests corruption is present at all levels in Sierra Leone including the private sector suggests to the Tribunal the article is a fraudulent (counterfeit or altered) document and is not genuine. The other writing dated [date] October 2016, [date] October 2016 and the online article dated [date] February 2016 largely paraphrase in one way or another the newspaper article. The Tribunal considers these to be also fabricated and does not accept they are genuine.
It follows the Tribunal does not accept that the applicant was questioned by others about her alleged relationship with [Ms C], nor that when she came to Australia, photos were published that were then shared on whats app that led to [Ms C]’s disappearance nor to the applicant being hunted nor that she nor her son were threatened and ostracised by her family and community.
Activities in Australia.
The applicant stated she engaged in some activities with the LBBTQI community in Australia who she met through [Organisation] however the Tribunal finds the evidence is inconsistent in relation to exactly what the applicant did, that is at hearing she stated she told a [colleague] and joined the LGBTQI group when she came to Australia, went to some events and to restaurants but when Covid hit, stopped doing things with the group and that there were no activities online. This contradicts the written statement of [Ms E] who stated the applicant was active in the online group and often shared useful information with other women. When this was raised at hearing, the applicant stated she participated online before covid, however, and as put to the applicant at hearing, this remains somewhat curious given it was at that very point many Australians became active online. Given the conflicting evidence, the Tribunal is prepared to accept the applicant has engaged in some past activities with the LGBTQI community in Australia however that engagement is dated and was on a limited basis only. In addition, given its earlier findings the Tribunal does not accept she was in a lesbian relationship in Sierra Leone, the Tribunal does not accept she has participated in this group because she is genuine. Further, given her dated and limited attendance, neither does the Tribunal accept anyone will know or even if they know, will form an impression she is a genuine lesbian or perceive her to be a lesbian now or in the reasonably foreseeable future.
Given the applicant’s overall lack of credibility, neither does the Tribunal accept the applicant has told a work or [colleague] she is a lesbian.
In reaching these conclusions, the Tribunal has considered the various early reports ranging from the referral to [Organisation 2] dated 7 November 2017 for assessment due to depression, and the [Organisation 2] summaries themselves dated 25 May 2017, 30 August 2017, 17 November 2017, 20 December 2017, 10 April 2018, 6 June 2018, and 5 July 2018 that speak to the applicant’s psychological state. The Tribunal accepts the reports are evidence of the applicant’s psychological condition, however, the various writer’s conclusions or observations about the link between her psychological condition and the applicant’s sexuality or past or future events in Sierra Leone are based on what the applicant has told them about her sexuality and those events, and in light of all of the above, the Tribunal does not accept the reports are proof the claimed events or the applicant’s sexuality are the cause of her mood and/or depression. Therefore, in this regard, the Tribunal does not give these reports any weight.
In reaching all of these conclusions, the Tribunal has also considered whether the above reports meant that the applicant’s mental health has affected her ability to participate throughout the entire visa application process including at Departmental interview. However, having reviewed the applicant’s extensive statements which have been detailed and precise, having read her adviser’s extensive submissions, and having listened to not only the Departmental interview where the applicant was supported by her adviser, but also the Tribunal hearing where the applicant was also supported by her adviser, the Tribunal has formed the view that the applicant, along with her representative were not only able, but did actively and fully participate in the entire application visa process.
For the reasons given above, the Tribunal does not accept that the applicant is a lesbian or that if the applicant returns to Sierra Leone, that her family including her ex-husband or community will kill her. It follows the Tribunal is not satisfied the applicant has a well-founded fear of persecution, now or in the reasonably foreseeable future, if she returns to Sierra Leone.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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 has rejected all of the applicant’s claims. The Tribunal also finds that there is no real risk the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act, in the future. Therefore the Tribunal does not accept 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 she will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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).
There is no suggestion 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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Angela Cranston
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 4158

6 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice