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 any other language. The Department was advised that there was no other suitable language in which the interview could be conducted.
The delegate’s decision records that due to the lack of [Language 1] interpreters in Victoria, an external telephone interpreter from interstate was booked for the Departmental interview on 11 February 2019. However the delegate notes in the decision record that [the first applicant] appeared confused about the purpose of the interview, that she was not engaged and did not respond to the questions asked of her. The applicant’s (former) representative indicated that he had communicated only with [the first applicant]’s daughter because he could not communicate with [the first applicant] directly. Further, it became apparent that the interpreter sourced by the Department spoke [Dialect 2] of [Language 1], while [the first applicant] speaks [Dialect 1]. The delegate’s decision records that the interview was suspended because of the language difficulties and not rescheduled, rather written questions were asked and responded to in writing.
The Tribunal experienced the same difficulties as the Department in sourcing an appropriate interpreter. The applicant’s (current) representative suggested that the parties would consent to proceeding with an unaccredited interpreter, including one sourced from overseas, but they did request the interpreter be female due to the nature of the claims raised by the applicant. The representative advised that she communicated with [the first applicant] through her daughter [the second applicant].
Ultimately none of the six interpreting agencies contacted by the Tribunal were able to provide a [Dialect 1/Language 1] interpreter of any gender, accredited or otherwise, either in person or by telephone. The Tribunal’s Interpreter Policy sets out that in circumstances where the AAT is unable to source an accredited interpreter, the Tribunal may utilise a suitable person to interpret at hearing.
It has not been possible in this case to identify a suitable person to carry out the role of the interpreter at the Tribunal hearing. The parties and their representative were not able to identify anyone in the community who is fluent in [Dialect 1/Language 1] and could interpret at the hearing. While [the second applicant] (and to some extent [Ms A]) is able to communicate with her mother, [the second applicant] is herself a party to these proceedings and the AAT will not use interpreters who are related to or have a close personal relationship with a party. Most importantly she is a young person (who turned [age] [number] weeks before the Tribunal hearing) who has a significant trauma history that forms part of the claims in this proceeding and it is inappropriate that she be asked to interpret her mother’s recounting of that trauma history to the Tribunal. [Ms A] is not fluent in [Dialect 1/Language 1] as she was adopted into another family at a young age and grew up in a third country.
With the consent of the parties, the Tribunal determined that the hearing should proceed in English to take evidence from [the second applicant] and [Ms A] with an opportunity for [the first applicant] to provide any further evidence or submissions in writing after the hearing.
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
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
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.
It is claimed that [the first applicant] would also be at risk of gender-based harm as an older, widowed woman who has transgressed societal norms by refusing a marriage proposal for her child and resisting male authority.
The delegate cited country information about the prevalence of FGM/C in Sierra Leone, indicating that FGM/C is deeply entrenched in Sierra Leone and is perceived by many as being a necessary step towards womanhood. She cited the most recent available data at that time as published by the World Health Organisation indicating that in 2013, 88% of women and girls in Sierra Leone had been subjected to FGM.
The delegate recorded some concerns about the credibility of their claims regarding [the second applicant]’s experience of FGM/C, primarily because country information indicated its prevalence had temporarily declined in 2014 during the country’s Ebola outbreak. However the delegate ultimately accepted that both applicants had undergone FGM/C, but noted that the assessment of Australia’s protection obligations is forward looking. She concluded that as the applicants had already been subjected to this procedure, there was no likelihood that they would again be subjected to it in the future.
In relation to the claims that [the second applicant] would be subjected to forced or coerced marriage if returned to Sierra Leone, the delegate did not accept the applicants’ particular claims as discussed below, nor did she accept the applicants had any fear of harm on this basis.
Assessment of claims
Notwithstanding the reservations expressed by the delegate as to whether [the second applicant] underwent FGM/C as claimed, the medical evidence before the Tribunal puts that issue beyond doubt. The Tribunal accepts that it was arranged by her father’s sister in 2015, without the permission of her mother, following the death of [the second applicant]’s father in [year]. The procedure was performed twice, because it was not done ‘properly’ on the first occasion. [The second applicant] was approximately 10 years old at the time.
There is extensive Australian medical evidence before the Tribunal as to the physical and mental effects of FGM/C on [the second applicant] as well as the surgical procedure she has had in Australia to mitigate its most severe consequences. It is unnecessarily intrusive to recount the details of the applicant’s medical conditions here, but the Tribunal records that it accepts the contents of the medical reports before it. In very broad terms, that medical evidence indicates that she has experienced significant ongoing physical health issues as a result of the FGM/C and underwent deinfibulation surgery in Australia in 2022 to mitigate its effects. She also experiences serious mental health issues related to that event for which she receives treatment from a psychologist and psychiatrist.
Country information cited in the delegate’s decision indicates that the law in Sierra Leone does not prohibit FGM/C being perpetrated against women and girls and that it is extremely prevalent across the country. More recent country information confirms this is still the case and that in 2019, 83% of women between the age of 15 and 49 had reportedly undergone some form of FGM/C.[1]
[1] US Department of State Human Rights Report 2021 at SIERRA LEONE 2021 HUMAN RIGHTS REPORT (state.gov)
The UNHCR’s Guidance Note on Refugee Claims Relating to Female Genital Mutilation establishes that a girl or woman seeking asylum because she has been compelled to undergo or is likely to be subjected to FGM can qualify for refugee status under the 1951 Convention relating to the Status of Refugees. The UNHCR considers FGM to be a form of gender‑based violence that inflicts severe harm, both mental and physical, and amounts to persecution.[2]
[2] UNHCR Guidance Note on Refugee Claims Relating to Female Genital Mutilation May 2009 at Microsoft Word – Note on FGM May09.doc (refworld.org)
The Guidance Note cautions that all forms of FGM/C are considered harmful, although the consequences tend to be more severe the more extensive the procedure. It reports that ‘almost all those who are subjected to FGM experience extreme pain and bleeding and other health complications include shock, psychological trauma, infections, urine retention, damage to the urethra and anus, and even death’. Importantly the Guidance Note cautions that the consequences of FGM do not stop with the initial procedure, rather the girl or woman is permanently mutilated and can suffer other severe long-term physical and mental consequences.[3]
[3] Ibid at paragraph 5
Importantly the UNHCR Guidance Note emphasises that FGM/C is a continuing form of harm and should not be characterised as a one-off act that cannot be repeated on the same girl or woman. Rather, the permanent and irreversible nature of FGM supports a finding that a woman or girl who has already undergone the practice before she seeks asylum may still have a well-founded fear of future persecution. For example, that same girl or woman may be subjected to another form of FGM/C or suffer particularly serious long‑term consequences of the initial procedure.[4]
[4] Ibid at paragraph 14
This is particularly relevant to [the second applicant] because of her fears that should she be returned to Sierra Leone, she will again be forced into FGM/C to ‘undo’ the deinfibulation surgery she has undergone in Australia. She fears that would happen because there is no future for girls except to marry and any future husband would not accept her unless she had the procedure again. The Tribunal accepts that the nature of the deinfibulation surgery is such that it would be readily apparent to any future partner. This, together with the extremely high prevalence of FGM/C in Sierra Leone, causes the Tribunal to accept that there is a real chance that [the second applicant] will again be forced to undergo FGM/C by a future partner or family members seeking to arrange her marriage.
As to the essential and significant reason for the FGM/C, it is widely recognised that FGM/C is performed on girls and women ‘because they are female, to assert power over them and to control their sexuality’ and that it ‘forms part of a wider pattern of discrimination against girls and women in a given society’.[5]
[5] Ibid at paragraph 22

FGM/C is not the only form of harm [the second applicant] faces in Sierra Leone for reasons of her gender. Women across Sierra Leone face widespread societal discrimination, with their rights largely contingent on customary law. The US State Department reported in 2021 that under customary law, women’s status in society is equal to that of minors and they are frequently perceived to be the property of their husbands and to be inherited on his death with his other property.[6] [The second applicant]’s experience of ending her formal education at the age of 10 is the norm among girls living in rural areas. The rates of school completion for children in Sierra Leone are heavily influenced by gender, residence (urban or rural) and household wealth, with the result that only 5% of the poorest rural girls complete secondary education in comparison to 68% of the wealthiest urban boys.[7]
[6] US Department of State Human Rights Report 2021 at SIERRA LEONE 2021 HUMAN RIGHTS REPORT (state.gov)
[7] UNESCO Republic of Sierra Leone: Education sector analysis: assessing the enabling environment for gender equality – UNESCO Digital Library
As noted above, [the first applicant] claims she fled Sierra Leone with [the second applicant] after her husband died and his brother [Mr C] assumed the role of head of the household. It is claimed that [Mr C] arranged [the second applicant]’s marriage to a much older local ‘big man’, [Mr D], who already has two wives, and [the second applicant] will have no choice but to submit to this marriage. While [the first applicant] and her husband did not believe in child marriage, [the first applicant] was powerless to oppose her brother-in-law’s wishes after the death of her husband. [The second applicant] was 11 at the time these events are said to have taken place.
While the delegate considered the applicants’ claims about forced marriage were not credible, those claims are entirely consistent the country information available to the Tribunal. The US State Department reports that despite the legal minimum age of marriage being set at 18, 13% of girls in Sierra Leone were married by age 15 and 39% by age 18. Girls most vulnerable to child or early marriage include those from poor, rural areas including the Northern Province where the applicants come from.[8]
[8] US Department of State Human Rights Report 2021 at SIERRA LEONE 2021 HUMAN RIGHTS REPORT (state.gov)
Other sources note that the patriarchal nature of Sierra Leonean society creates pressure for girls to marry young and the age-based prohibition of child marriage is a relatively new concept. Rather, the primary decisions in customary marriages, which represent the large majority of marriages in Sierra Leone, are made by the parents of the bride and other men in her life:
Both in the context of marriage and in society more generally, a young girl’s wishes are typically subordinated to those of her parents and the men in her life, which virtually precludes her from resisting, much less preventing, her marriage as a child.[9]
[9] ‘Before Their Time: Challenges to Implementing the Prohibition Against Child Marriage in Sierra Leone’ Allard K. Lowenstein International Human Rights Clinic Yale Law School, Plan United Kingdom, Plan Sierra Leone, January 2013 at before_their_time_report.pdf (yale.edu) at page 13–15
Further, polygamy is widely accepted in Sierra Leone, and men with wealth or power, such as chiefs or village elders, often have multiple wives:
As a result, parents frequently agree to have their daughters marry older men with multiple wives, leaving their daughters with little power or autonomy in their marriages.[10]
[10] Ibid at 15
Given the consistent statements of the applicants and [Ms A] and the country information cited above, the Tribunal accepts their account of the events following the death of their husband and father. In particular the Tribunal accepts that their brother-in-law and uncle [Mr C] assumed the role of head of the family and prevented [the second applicant] from continuing her education. The Tribunal accepts he arranged her marriage to [Mr D] against her wishes and those of her mother and that [Ms A] and [the first applicant] arranged her travel to Australia to prevent [the second applicant]’s forced marriage.
Five years have since passed since the applicants entered Australia and it is unclear whether that particular marriage would be pursued by [Mr C] or [Mr D]. However the Tribunal accepts that should [the second applicant] return to Sierra Leone, there remains a real chance she would be forced or coerced into entering a marriage to which she is opposed whether that be to [Mr D] or another person identified by her uncle or extended family members. In making that assessment, the Tribunal notes that the rights of women in Sierra Leone are largely contingent on customary law, particularly in matters of marriage, divorce and inheritance, and their rights are routinely inferior to those of men. As noted above, in 2021 the US State Department reported that 39% of girls in Sierra Leone were married by the age of 18 and that number is higher in poor, rural areas including Northern Province. Requiring [the second applicant] to modify her behaviour so as to enter into or remain in a marriage to which she is opposed is impermissible pursuant to s 5J(3)(c)(v).
For all of the above reasons, the Tribunal finds that [the second applicant] faces a real chance of harm if returned to Sierra Leone, now or in the foreseeable future. That harm includes but is not limited to FGM/C and forced or coerced marriage and constitutes serious harm for the purposes of s 5J(5). It follows that the Tribunal accepts that the applicant meets the requirements of s 5J(1)(b).
The Tribunal considers that [the first applicant] also faces a well-founded fear of persecution for reasons of her membership of the same particular social group. While her risk factors are not the same as those of [the second applicant] because of the differences in their age and life stage, the Tribunal is satisfied that the harm she fears also constitutes serious harm that will be inflicted upon her for the essential and significant reason of her gender.
In particular the Tribunal accepts that [the first applicant] is at risk of harm and mistreatment from her brother-in-law [Mr C] who has assumed the role of head of the household since [the first applicant]’s husband [Mr B] died in [year]. The Tribunal considers the applicants’ evidence to this effect to be consistent with the US State Department’s advice that women are frequently perceived to be the property of their husbands and liable to be inherited on his death with his other property.[11]
[11] US Department of State Human Rights Report 2021 at SIERRA LEONE 2021 HUMAN RIGHTS REPORT (state.gov)
Further the Tribunal accepts that [the first applicant] has been without an income since the death of her husband in [year]. The Tribunal accepts that [Mr C]’s move to take over her deceased husband’s farming business was made possible because of the inferior rights held by women under Sierra Leone’s laws around inheritance. For the remainder of the time [the first applicant] was in Sierra Leone, she was reliant on her brother‑in‑law and sister‑in‑law to financially provide for her and her children, and since refusing to give permission for the marriage of [the second applicant] she can no longer rely on their support. The Tribunal accepts that [Mr C]’s ability to harm and control [the first applicant]’s life has its genesis in their respective genders.
[The first applicant] has also been subjected to FGM/C, and for the reasons set out above, the Tribunal has accepted this is a continuing harm. She too has a range of physical and mental health issues, although it is again apparent from the available medical evidence that language difficulties have restricted her ability to communicate with her doctors and therefore limited the information available to the Tribunal.
The Tribunal considers that if she were to return to Sierra Leone, there is a real chance [the first applicant] would face direct physical harm from her brother-in-law [Mr C]. She would be denied the capacity to earn a livelihood of any kind, given that her brother-in-law has taken over her husband’s farming business. She cannot return to the home she shared with her husband and children because of her fear of harm from her brother-in-law. She does not speak any language apart from [Dialect 1] of [Language 1] and has never attended school or worked outside of the family’s subsistence farming business. She has no source of income or support and her [children] are living with a friend of [Ms A] and being supported by remittances from her in Australia. The Tribunal accepts that the family’s financial circumstances are precarious and that [Ms A]’s ability to continue supporting her birth family in Sierra Leone is constrained by her responsibilities to her own children here in Australia.
The Tribunal is satisfied that the harm feared by both applicants will be directed at them for the essential and significant reason their membership of the particular social group ‘women in Sierra Leone’ for the purposes of s 5J(1)(a). The Tribunal considers that the group of ‘women in Sierra Leone’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution.
The country information referred to above indicates that the law in Sierra Leone does not prohibit FGM/C being perpetrated against women and girls and that it is extremely prevalent across the country. While the formal law of Sierra Leone provides for the same legal status for men and women, customary law applies in all areas of Sierra Leone outside of Freetown. Judges are either unaware of formal law or choose to ignore it as consequence of which women’s rights are contingent on customary law where their rights and status are routinely inferior to those of men and equal to that of a minor.[12] In such circumstances, the Tribunal accepts that effective state protection is not available to the applicants and the harm they fear extends across all areas of Sierra Leone for the purposes of s 5J(1)(c).
[12] US Department of State Human Rights Report 2021 at SIERRA LEONE 2021 HUMAN RIGHTS REPORT (state.gov)
For these reasons, the Tribunal finds that each of the applicants meets the definition of a refugee. Therefore they are persons in respect of whom Australia has protection obligations and they satisfy the criterion set out in s 36(2)(a).
Right to enter and reside in a third country
Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.
Section 36(3) of the Act has the effect that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[13]
[13] Sections 36(4)–(5A)
This is relevant to the current review because Sierra Leone is one of the partner states of the Economic Community of West African States (ECOWAS) established by the ECOWAS Treaty signed in 1975. A revised treaty signed in 1993 further strengthened intra‑regional economic and political integration and regional unity across national and linguistic borders.[14]
[14] East African Community website at East African Community (eac.int)
ECOWAS consists of an association of 15 partner states with a combined population estimated at 391 million. The 15 partner states are the Anglophone states of Sierra Leone, The Gambia, Ghana, Liberia and Nigeria; the Francophone states of Benin, Burkina Faso, Cote d’Ivoire, Guinea, Mali, Niger, Senegal and Togo; and the Lusophone states of Cabo Verde and Guinea Bissau. ECOWAS has a mixed religious population and comprises hundreds of ethnic and language groups.[15] DFAT reports that:
3.2 The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[16]
[15] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020 at 2.2–2.4
[16] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020 at 3.2
The ECOWAS Treaty confers the status of ECOWAS community citizenship on the citizens of ECOWAS member states, affording all those in possession of valid travel documents and international health certificates the right to enter any ECOWAS member state for up to 90 days without any prior or administrative or security-based immigration requirements. All ECOWAS member states have reportedly implemented the first phase of the ECOWAS framework in relation to the Right of Entry, although DFAT reports that immigration authorities can refuse entry in some circumstances (if, for example, the person is a prohibited immigrant, an undesirable person or without visible means of support).[17]
[17] Ibid at 3.14
Article 4 of the 1979 Protocol Relating to Free Movement of Persons, Resident and Establishment provides that notwithstanding the provisions allowing ECOWAS citizens holding valid travel documents and an international health certificate free entry into member states, member states reserve the right to refuse admission to ECOWAS citizens who are inadmissible immigrants under the laws of the member state.[18] Commentators report this provision provides broad scope for member states to undermine the purpose of the Protocol using restrictive domestic inadmissibility laws.[19]
[18] A/P 1/5/79
[19] UNHCR Research Paper No 150 Promoting integration through mobility: free movement and the ECOWAS Protocol December 2007
The Australian courts have held that the term ‘right’ should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.[20] The right must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise.[21]
[20] MIMAC v SZRHU [2013] FCAFC 91
[21] V856/00A v MIMA (2001) 114 FCR 408
In this case, the applicants’ passports issued by the Republic of Sierra Leone have expired. Their entry to ECOWAS member states will also require an international health certificate which they do not hold. DFAT reports that it is generally quicker, cheaper and easier for ECOWAS community citizens to pay a bribe to enter other member states than obtain an ECOWAS certificate. While ECOWAS is currently reviewing documentation requirements and plans to remove the health certificate requirement, DFAT is not aware of the planned timeframe for implementation of the reforms or the likely uptake by member states.[22]
[22] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020
As well, the applicants would be entering ECOWAS countries as two woman travelling alone without any visible means of support. As noted above, DFAT reports that this is a circumstance in which immigration authorities can refuse entry and that discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region, often grounded in cultural traditions and formalised by law. FGM/C is widespread in the ECOWAS region and sources report police in some ECOWAS countries routinely return to their families women and girls who attempt to flee their community to avoid FGM/C.[23] In such circumstances, the Tribunal accepts that the applicants are vulnerable to being refused admission to other ECOWAS countries.
[23] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020 at 2.16
Even if the applicants were able to enter an ECOWAS member state, the right to which s 36(3) refers is not just the right to enter, but also a right to reside. While a temporary right to reside will suffice to satisfy the legislative criteria, the Australian courts have held that a right to reside should confer privileges ordinarily associated with residency. One of the rights considered relevant in this assessment was the right to work; the court in that case also considered it relevant that the country extending the temporary right to enter and reside (in that case, the UK) referred to it as the ‘right of residence’.[24]
[24] SZQRM v MIAC [2013] FCCA 772 at [114]–[117] upheld in SZQRM v MIBP [2013] FCA 1297
ECOWAS community residents have the right to reside in and become established in ECOWAS member states but must apply for and obtain a residence permit or work permit just like non‑ECOWAS residents. The grant of such permits is not guaranteed and may be refused on public order, public security or public health grounds.[25]
[25] DFAT DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020 at 3.3
For all of the above reasons, I am not satisfied that either applicant has a current right to enter and reside in other ECOWAS countries within the meaning of s 36(3). Therefore they are not excluded from Australia’s protection obligations by the operation of s 36(3).
CONCLUSIONS
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 Murphy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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