1915344 (Refugee) - [2022] AATA 4971

1915344 (Refugee) [2022] AATA 4971 (5 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sophie De Rohan (MARN: 0801852)
CASE NUMBER:  1915344
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Alison Murphy
DATE:5 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 05 December 2022 at 11:28am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – particular social group – women in Sierra Leone – older widow and fatherless young unmarried woman – past harm from female genital mutilation/cutting (FGM/C) – fear of harm from brother-in-law/uncle, forced marriage, gender-based violence, societal discrimination, customary law and repeat of FGM/C after corrective surgery in Australia – capacity to subsist – physical and mental health – country information – FMG/C legal and prevalent, and customary child marriage and polygamy widespread – effective state protection not available and treaty right to enter and reside in third countries limited in practice – passports expired and no international health certificates held – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(c)(v), (5), 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU [2013] FCAFC 91
SZQRM v MIAC [2013] FCCA 772; [2013] FCA 1297
V856/00A v MIMA (2001) 114 FCR 408
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 June 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Sierra Leone, applied for the visas on 20 December 2017. The delegate refused to grant the visas on the basis that they were not satisfied the applicants were owed protection by Australia.
The applicants appeared before the Tribunal on 30 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], daughter of the first applicant and sister of the second applicant.
The applicants were represented in relation to the review.
ISSUES WITH INTERPRETING
[The primary applicant] speaks only the [Dialect 1] dialect of the [Language 1]. [The secondary applicant] speaks English and [Dialect 1/Language 1]. Due to a lack of interpreters in [Language 1] and a complete absence of an available interpreter who speaks [Dialect 1], it was not possible to secure the services of a suitable interpreter at either the Departmental interview or the Tribunal hearing.
Prior to the Departmental interview, the Department corresponded with the applicant’s (former) representative about the lack of available [Language 1] interpreters and enquired whether [the first applicant] spoke…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1915344 (Refugee)

Details

AGLC: 1915344 (Refugee) [2022] AATA 4971
Case: [2022] AATA 4971
Decision Date: 5 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa claims of two applicants, nationals of Sierra Leone. The applicants asserted a well-founded fear of persecution and significant harm if returned to Sierra Leone, primarily due to their gender, age, and marital status, and past experiences of Female Genital Mutilation/Cutting (FGM/C). They also claimed a fear of forced marriage, gender-based violence, societal discrimination, and a repeat of FGM/C following corrective surgery in Australia.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa, specifically whether they were refugees within the meaning of the Migration Act 1958 or whether Australia had complementary protection obligations towards them due to a real risk of suffering significant harm upon removal. This involved assessing the credibility of their claims, the availability of effective state protection in Sierra Leone, and whether they could reasonably relocate within Sierra Leone to avoid harm.

The Tribunal applied the principles of refugee law and complementary protection, considering country information regarding the prevalence of FGM/C, customary child marriage, and polygamy in Sierra Leone, as well as the limited availability of effective state protection. It found that the applicants were nationals of Sierra Leone and had experienced past harm, including FGM/C. The Tribunal concluded that the applicants satisfied the criterion for a protection visa under section 36(2)(a) of the Migration Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy section 36(2)(a) of the Migration Act, indicating that Australia had protection obligations towards them.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There is no dispute that the applicants are nationals of Sierra Leone. The Departmental file contains copies of their passports from the Republic of Sierra Leone, both now expired. The applicants have at all times stated that they are citizens of Sierra Leone and they have been accepted as such by the Department. The Tribunal finds they are citizens of Sierra Leone and has assessed their claims against that country as their country of nationality and the receiving country.The applicants’ personal background [The first applicant] is a [age]-year-old female born in [Town 1], Sierra Leone. [The second applicant] is her [teenage] daughter, also born in [Town 1]. The witness [Ms A] is [the first applicant]’s child and [the second applicant]’s sister. [Ms A] was adopted into another family as a young child and moved to [Country 1] at the age of 8 (in approximately [year]). She came to Australia on a global humanitarian (Subclass 202) visa in 2007 with her former partner. She had no contact with her birth family from the time of her adoption until after her arrival in Australia. [The first applicant]’s husband [Mr B] died in [year]. Prior to his death she helped him work in the farming sector. They had [number] children, of whom [number] are still living. [Ms A] is the eldest and [the second applicant] is the youngest of those children. [The second applicant] gave evidence that she attended school in [Town 1] until the death of her father when she was aged about 9 or 10. After her uncle [Mr C] assumed the position of head of the family, and he stopped her attending school. [The second applicant] attends school in Australia and is currently in Year [Number]. [The first applicant]’s [other] living children remain living in Sierra Leone. At hearing, [the second applicant] and [Ms A] gave evidence that they had moved to another town to escape their uncle and aunt and were living with a friend of [Ms A]. [Ms A] sends money for their ongoing financial support when she can. The delegate’s decision indicates that [the first applicant] and [the second applicant] arrived in Australia as holders of sponsored family visitor visas [in] December 2017. [Ms A] gave evidence that when her mother told her about the difficulties they were experiencing in Sierra Leone following the death of their husband and father, she wanted to help them by sponsoring them to come to Australia so that they could claim protection.Claims for protection The applicants have consistently claimed that if returned to Sierra Leone, they face a well‑founded fear of persecution on the basis of their membership of particular social groups related to their gender, age and marital status. In particular it is asserted that in the past, they have both been subjected to serious harm in the form of Female Genital Mutilation/Cutting (FGM/C) and that this harm has been inflicted on them for the essential and significant reason of their gender. It is claimed that if they were to return to Sierra Leone, [the second applicant] would again be subjected to FGM/C given the corrective surgery she has had in Australia to mitigate the effects of the procedure she underwent in Sierra Leone. It is claimed that she would also be at risk of gender-based harm including forced marriage and other forms of sexual and gender‑based violence given her profile as a young unmarried woman who has transgressed societal norms by refusing a marriage proposal, resisting male authority and having FGM/C ‘corrected’ in Australia. It is also claimed that if returned to Sierra Leone, [the second applicant] will be forced into marriage to a much older man in the village named [Mr D] to whom her uncle [Mr C] has arranged her marriage.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The issue in this case is whether either of the applicants is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Country of nationality There is no dispute that the applicants are nationals of Sierra Leone. The Departmental file contains copies of their passports from the Republic of Sierra Leone, both now expired. The applicants have at all times stated that they are citizens of Sierra Leone and they have been accepted as such by the Department. The Tribunal finds they are citizens of Sierra Leone and has assessed their claims against that country as their country of nationality and the receiving country.The applicants’ personal background [The first applicant] is a [age]-year-old female born in [Town 1], Sierra Leone. [The second applicant] is her [teenage] daughter, also born in [Town 1]. The witness [Ms A] is [the first applicant]’s child and [the second applicant]’s sister. [Ms A] was adopted into another family as a young child and moved to [Country 1] at the age of 8 (in approximately [year]). She came to Australia on a global humanitarian (Subclass 202) visa in 2007 with her former partner. She had no contact with her birth family from the time of her adoption until after her arrival in Australia. [The first applicant]’s husband [Mr B] died in [year]. Prior to his death she helped him work in the farming sector. They had [number] children, of whom [number] are still living. [Ms A] is the eldest and [the second applicant] is the youngest of those children. [The second applicant] gave evidence that she attended school in [Town 1] until the death of her father when she was aged about 9 or 10. After her uncle [Mr C] assumed the position of head of the family, and he stopped her attending school. [The second applicant] attends school in Australia and is currently in Year [Number]. [The first applicant]’s [other] living children remain living in Sierra Leone. At hearing, [the second applicant] and [Ms A] gave evidence that they had moved to another town to escape their uncle and aunt and were living with a friend of [Ms A]. [Ms A] sends money for their ongoing financial support when she can. The delegate’s decision indicates that [the first applicant] and [the second applicant] arrived in Australia as holders of sponsored family visitor visas [in] December 2017. [Ms A] gave evidence that when her mother told her about the difficulties they were experiencing in Sierra Leone following the death of their husband and father, she wanted to help them by sponsoring them to come to Australia so that they could claim protection.Claims for protection

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).decision The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.Alison MurphyMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The issue in this case is whether either of the applicants is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Country of nationality There is no dispute that the applicants are nationals of Sierra Leone. The Departmental file contains copies of their passports from the Republic of Sierra Leone, both now expired. The applicants have at all times stated that they are citizens of Sierra Leone and they have been accepted as such by the Department. The Tribunal finds they are citizens of Sierra Leone and has assessed their claims against that country as their country of nationality and the receiving country.The applicants’ personal background [The first applicant] is a [age]-year-old female born in [Town 1], Sierra Leone. [The second applicant] is her [teenage] daughter, also born in [Town 1]. The witness [Ms A] is [the first applicant]’s child and [the second applicant]’s sister. [Ms A] was adopted into another family as a young child and moved to [Country 1] at the age of 8 (in approximately [year]). She came to Australia on a global humanitarian (Subclass 202) visa in 2007 with her former partner. She had no contact with her birth family from the time of her adoption until after her arrival in Australia. [The first applicant]’s husband [Mr B] died in [year]. Prior to his death she helped him work in the farming sector. They had [number] children, of whom [number] are still living. [Ms A] is the eldest and [the second applicant] is the youngest of those children. [The second applicant] gave evidence that she attended school in [Town 1] until the death of her father when she was aged about 9 or 10. After her uncle [Mr C] assumed the position of head of the family, and he stopped her attending school. [The second applicant] attends school in Australia and is currently in Year [Number].