2006445 (Refugee)
[2024] AATA 4410
•24 September 2024
2006445 (Refugee) [2024] AATA 4410 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Jesheka Jeyaneshan
CASE NUMBER: 2006445
COUNTRY OF REFERENCE: Republic of Guinea
MEMBER:Gregory Hanson
DATE:24 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)Applicant 2 and Applicant 3 satisfy s 36(2)(a) of the Migration Act 1958 (Cth); and
(ii)Applicant 1 satisfies s 36(2)(b)(i) of the Migration Act 1958 (Cth) on the basis of being a member of the same family unit as Applicant 2 and Applicant 3.
Statement made on 24 September 2024 at 3:39pm
CATCHWORDS
REFUGEE – protection visa – Guinea – mother and two teenaged daughters – cultural female genital mutilation – mother underwent at young age, and now pressured by her mother and female relatives to return daughters to home country to undergo – mother’s mental health and father’s travel for work – consent to decision without hearing – mother as member of family unit – country information – widespread prevalence and acceptance, medical consequences of undergoing and societal consequences of refusing – gender-based discrimination and violence – effective state protection not available – treaty right to enter and reside in neighbouring countries limited in practice – political, economic and social instability – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), s 36(2)(a), (b)(ii), 418(3), 425(2)(b)
Migration Regulations 1994 (Cth), Schedule 2CASES
1512488 (Refugee) [2019] AATA 6798
1515415 (Refugee) [2017] AATA 3010
1930909 (Refugee) [2022] AATA 3346Any 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 a combined application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant [the first applicant] (Applicant 1), [the second applicant] (Applicant 2) and [the third applicant] (Applicant 3) protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Applicant 1, Applicant 2 and Applicant 3 (the applicants) claim to be citizens of the Republic of Guinea (Guinea). They lodged a combined application for protection visas on 27 May 2016 with the Department of Home Affairs (the Department), as it is now known.
On 30 March 2020, a delegate refused to grant each of the applicants a protection visa. In doing so, the delegate found for s 36(3) of the Act that Applicant 1 had a right to enter and reside in [Country 1], and further, they were not satisfied Applicant 1’s explanation met the threshold in ss 36(4), 36(5) and 36(5A) of the Act. Following this, the delegate found Applicant 1 is not a person in respect of who Australia has protection obligations. The delegate then found that, having refused to grant Applicant 1 a protection visa, Applicant 2 and Applicant 3 did not does not satisfy ss 36(2)(b) or 36(2)(c) of the Act as they were not a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application and who is a person in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa).
On 31 March 2020, the applicants lodged a combined application with the Tribunal for merits review of the delegate’s decisions in respect of them.
The applicants were represented for the review by WLW Migration Lawyers.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a dependent child.
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
These provisions operate to mean that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
CLAIMS AND EVIDENCE
Before the Department
On 27 May 2016, the applicants lodged their combined application for protection visas with the Department and appointed [Ms A] of [Migration lawyers] as their authorised recipient for s 494D(1) of the Act and representative.
The material provided to the Department for the purposes of the protection visa application included the following:
a.Protection visa application forms (Forms 866B and 866C) for the applicants.
b.Personal Particulars for assessment including Character Assessment forms (Form 80) for each of the applicants.
c.Certified copies of the following documents:
i.A document purporting to be a birth certificate issued by the Guinean authorities in respect of Applicant 1 with English translation, recording them to have been born in Kankan, Guinea, on [Date].
ii.A document purporting to be a birth certificate issued by the Guinean authorities in respect of Applicant 2 with English translation, recording them to have been born in Conakry, Guinea, on [Date].
iii.An English translation of published reasons of a Guinean judicial officer for a court order in lieu of a birth certificate for Applicant 3 with English translation, recording them to have been born in Conakry, Guinea, on [Date].
iv.A document purporting to be a marriage certificate between Applicant 1 and her husband/father of Applicant 2 and Applicant 3 issued by the Guinean authorities, without English translation.
v.The biodata page of a passport purporting to have been issued to Applicant 2 by the Guinean authorities in Conakry, Guinea, [in] 2018.
vi.The biodata page and other selected pages of a passport purporting to have been issued to Applicant 3 by the Guinean authorities in Conakry, Guinea, [in] 2018.
vii.The biodata page of a passport purporting to have been issued to Applicant 1 by the Guinean authorities [in] 2016.
viii.The biodata page of a passport purporting to have been issued to Applicant 1 by the Guinean authorities [in] 2016.
ix.The biodata page of a passport purporting to have been issued to Applicant 1’s husband (Applicant 2 and Applicant 3’s father) by the Guinean authorities [in] 2012.
x.An undated statement from Applicant 1 (2016 Applicant 1 Statement).
xi.An undated statement purporting to be from Applicant 1’s cousin also containing excerpts from media reports (2016 Cousin Statement).
xii.Images described as being of scarring on Applicant 1’s sister’s body.
d.An uncertified copy of an employment contract between Applicant 1’s husband and [Employer 1, Country 1] dated 5 August 2013.
e.A certified copy of correspondence from [Dr B] of [Family Practice] in [Suburb], New South Wales, addressed to ‘whomever it may concern’ dated 6 May 2016 advising, among other things, Applicant 1 is a patient of [Family Practice] and that she “is under significant pressure from her family in Guinea to take her daughters back to undergo cultural genital mutilation” (2016 GP Letter).
In her 2016 Applicant 1 Statement, Applicant 1 relevantly claimed as follows:
Female genital mutilations in Guinea in the Kpèlè Commmunity
In January 2016, I went to Conakry to visit my family after spending two years in Australia. During the first week of my visit everything was going well, but at the end of the second week, one day in the morning of January [Day]2016, when I had just barely woken up, my mother accompanied by two of her friends called me into her room. When my mother called me with her friends, she requested/ordered me to send my two daughters back home for their excision/circumcision at the end of this year 2016. Indeed, I came to know that her two girlfriends are representatives of women circumcisers for our ethnic group based in Conakry.
I note that my husband's work contract will end by 31st January 2017 and therefore we will all have to return to Guinea after 3 years of living in Australia in order for our parents to see their grandchildren and daughters. In fact, for my mother this will be a good opportunity for my daughters to undergo the excision/circumcision rituals because she has that kind of influence over me as a mother. My first daughter will turn [Age] in November 2016 and the second will be [Age] years old in October 2016 which according to my mother is the ideal age for the two girls to go for their excision/circumcision. After she said this and because my mother was with her friends and because of fear, I did not want to disobey or refuse her instructions in front of her friends, so I was obliged to just consent and she was very happy because according to her all her other grand children and nieces of the same age as my daughters have already been for excision/circumcision except my daughters.
After all the many bad things I have experienced, because I was a victim of this excision/circumcision at the age of 7 and because of the severe pain, health danger, discrimination and bodily torture my daughters will suffer and as well the discrimination, dejection and physical and psychological harm and torture that I as their mother will face for not submitting them for this evil act called circumcision , I have decided to do everything within my reach to prevent my daughters from being victims of this inhuman crime. The only alternative open to me to prevent them (my two daughters) from suffering the same way as I did suffer is to seek for a protection in Australia with my daughters until they grow up or until they grow to adulthood.
If my kids are not protected in Australia and have to return to Guinea, they could be kidnapped for the purpose of forcefully carrying out the circumcision operation on them and this may be accompanied by serious harm, torture and serious health risks on them. On my part as their mother, If I am not given protection in Australia and have to return to Guinea I will face inhuman or dehumanizing treatment, harm, torture and persecution from the communities. The authorities and the police or law enforcement agencies will not be able to protect me.
Also I and my daughters will not be able to relocate to any other part of Guinea because this traditional practice is carried out in every part of Guinea and even the whole of West Africa and the government cant stop it because they see it as deep rooted tradition that no one can escape from it. Also the country borders are open and anyone can cross over find us in other places.
How is the practice in our ethnic group?
The excision/circumcision operations are generally organized by different communities both for reasons of honour and pride therefore a social obligation. I will explain how this happened to me when I was 7 years old.
One day on the eve of the festivities of New Year [Year], we were eleven (11) in number, my sisters, my cousins and I, were very excited because of the celebration of the coming New Year. Our grandmother, aunts were all present. In the morning when we had just finished breakfast our grandmother and aunty told us that before the party they wanted to take us to a special place to have fun. Being very young we were very excited and curious to see this place because as children, we trusted our parents. We could never imagine that our parents could harm us. Getting to this place, the girls and I were gathered all together in one room. All our attention was to have fun and go back home. We were really surprised and fearful, to find at this place women that we have never seen before. Gathered all together in one room, each of us was excised/circumcised individually in another place next to the room where we were staying.
Each time, the screams of the girls who are already undergoing excision operation frightened us. But we still did not know what was going on in that room and none of us could escape. Then when my turn came, I was immobilized/bonded by several women who overpowered me, our aunty and our grandmother, and this is how I was excised/circumcised without even anaesthetics before the excision/circumcision operation nor antibiotics after the operation.
THE HARM, TORTURE AND HEALTH RISKS.
I cannot find words to describe the pain I felt. It was so painful that it was like if one snapped or cut a finger. After this operation, they made us to sit on a mat to give us traditional drinks treatment called concoction. All the time we spent until the wound healed, we did not take any modern treatment. All treatments were based on traditional medicines which were very unsafe.
One can imagine the very high risk of contamination of infectious diseases because the same blade was used for excision/circumcision of several girls. As a result of this I suffered a lot especially when urinating. I was forced to hold my urine every time I have to urinate. However, my aunty was forcing me to urinate even though I felt a lot of pain.
The first three days after the excision I was under severe pains. In order to console me, my mother, my aunty and our grandmother would say, "we all passed through this practice so it is an obligation for you to go through this in order to become a real women". "In fact according to our tradition if a girl is not circumcised, she is not worthy to marry a man, and no man will accept her in marriage so I should not cry or even show any sign of pain despite all the pain I was feeling".
PERSONAL EXPERIENCE OF PAIN AND HARM
As a teenager like many other girls, I have severe abdominal pains for a long time now. I always have very painful periods or menstrual periods as a result of this operation, I have had frequent bleedings and pain from the back to the feet.
According to our traditions, excision/circumcision is a mandatory practice which every girl must undergo; because if you refuse this practice in the community this means:
·Disgrace to the whole family;
·Disobedience to ancestral traditions;
And as consequences of this disobedience:
·The direct parents (mother, father) of the girl will be marginalized in the community, as they will be frowned upon by other families,
·The community will go through mystical means to curse the girl and her parents to compromise their future just as revenge for their refusal
·I am removed from Australia back to Guinea, and if I refuse to submit my two daughters for this circumcision myself and my two daughters will be tortured, persecuted or even kidnapped for forceful circumcision.
·This is most likely to happen because of the underlying customary idea or belief that girls who have not undergone FGM will never be considered as real warner among other women in the community, they will always be marginalized and insulted or discriminated against. All these are what myself and my daughters will face/suffer in Guinea if we are removed from Australia back to Guinea. And the people that will do this are our community members, elders and parents.
The immediate consequences on girls who have undergone FGM:
All forms of female circumcision are detrimental to women's health: these actions include immediate risks (pain, bleeding) that can cause shock and result in death. Example: In November [Year], I went to [my village] at that time my first daughter was only two years, out of the twenty-five girls who went for the excision ritual there were three cases of death before the end of the ritual. Then when such incidents happen generally the mother of the victim is accused of adultery, because according to tradition only true children of the family can go for circumcision and come back healthy.
In many cases children die regularly, but the women in charge of the excision operation always manage to return the child to the parents before her death. In all cases, when a girl died of excision; the reason will be discussed after and they will say that her mother is adulterous. Later on they will then try posthumously to find her real father, and begins family stories and in the end these women doing the excision will not be accused of anything wrong.
The consequences at mutilated any time of the life of the girl, the girl or woman mutilated
·Difficult births: a mutilated woman is threatened far more often than another tear of the perineum; she and her unborn child are in danger of death.
That is my case during my deliveries for my two children in November [Year] for my first daughter and in October [Year] for my second daughter.
·Very painful intercourse; I rarely have sex with my husband because I feel pain during sex and I have no feeling and I cannot have any orgasm.
Psychological consequences:
In our community, FGM is a serious threat to the mental balance of girls. Indeed, throughout the process leading to the operation, the child goes through several psychological shocks. We know that the first person in whom the child puts her trust is her mother. But if she betrays that trust in a tragic way this will permanently leave psychological mark on the child, and that was my case, you can imagine the ways we were taken to the excision/circumcision area. We were all thinking to go with our parents to have fun and come back home and we ended up being victims of this tragic operation that I will never forget in my entire life.
The second shock occurs when the first victim is brutalized by adults with an army, pushing a screech, under the influence of pain (the operation is performed without anaesthetics).This sight, experience or scene creates panic among us, and each of us was waiting for her turn. We remained there helpless, believing we will come out not alive. These images haunted me for a long time even after the operation.
It is well known that severe pain can leave deep psychological wounds. It seems logical that such pain in such a delicate part, complex and vital, experienced by girls or growing adolescents, causes significant psychological problems. The operation itself is terribly frightening to the extent that girls are forcibly kept alive and cut without anaesthetics.
The psychological aspects of behaviour of circumcised women vis-a-vis sex is an important subject of study. The big question is whether many circumcised women reach orgasm in their sexual relationships. And as answer to this I answer no, for now, I cannot reach the orgasm, I often do not even want to have sex with my husband because I don't have any feeling having sex and usually sexual intercourse is painful. All these evils are linked to genital mutilation I have suffered in my youth.
Health consequences:
Such operations are performed in unsanitized conditions with unsterilized instruments and by medically unqualified persons. There is no anaesthetics and the girl or woman suffers greatly, which can put her into shock.
The wounds of the vulva can become infected and if they are not well treated, healing will be delayed and septicaemia (blood poisoning) can be installed.
To conclude, I state that I and my two daughters will be tortured, harmed, persecuted and even kidnapped for forceful circumcision if we are removed from Australia to Guinea and as I know all these consequences of the FGM because I was victim when I was 7 years old, if I send my daughters to Guinea and they undergo this excision/circumcision operation, when they grow up they will accuse me of not protecting them and ask why I have allowed them to go through such a pain.
On my part I am currently undergoing treatment and psychologists counselling for depression because of the terrible fear of harm if we return to Guinea and forcefully subjected to submit to this torture and inhuman treatment on both myself and my two young girls. In this regard I have enclosed the letter/report from the psychologist.
[…]
On 3 March 2020 Applicant 1 attended a protection visa interview with a delegate assisted by her representative and an interpreter in the French and English languages. At the interview Applicant 1 provided further information in relation to her claims for herself and on behalf of Applicant 2 and Applicant 3. On that occasion the Department made copies of the following identity documents:
a.Applicant 1’s Victorian probationary living license.
b.Applicant 1’s national identity card issued to her by the Guinean authorities.
c.Duplicates of the above-referred images described as being of scarring on Applicant 1's sister's body.
On 30 March 2020, the delegate made decisions to refuse to grant the applicants protection visas.
Before the Tribunal
On 31 March 2020, the applicants lodged a combined application with the Tribunal for merits review of the delegate’s decisions in respect of them. In doing so, the applicant provided to the Tribunal a copy of the delegate’s protection visa decision record dated 30 March 2020 and appointed [Ms A] as their authorised recipient for s 441G(1) of the Act and representative.
On 15 May 2020, the applicants appointed a legal practitioner at WLW Migration Lawyers as their authorised recipient and legal representative. On 2 November 2020, the applicants appointed [Ms C] of WLW Migration Lawyers as their authorised recipient and legal representative.
By correspondence dated 3 February 2023, [Ms C] provided the following material to the Tribunal in support of the applicants’ claims:
a.Written submissions dated 3 February 2023 (2023 Submissions).
b.A statutory declaration prepared by Applicant 1 dated ‘December 2022’’ (2022 Applicant 1 Statement).
c.A duplicate copy of the 2016 GP Letter.
d.Documents relating to Applicant 1 husband’s (Applicant 2 and Applicant 3’s father’s) employment.
e.A compilation of country information.
In her 2022 Applicant 1 Statement, Applicant 1 relevantly claimed as follows:
[…]
My ability to protect my daughters from Female Genital Mutilation ('FGM')
3. I cannot protect my daughters from FGM in Guinea because it is a cultural process. My older daughter is [Age] years old, and my younger daughter is [Age] - they are still unaware about the threat of FGM if they were to return to Guinea.
4. I went back to Guinea in 2016 for 2 weeks and then returned to Australia. It was during this trip that my mother suggested that my daughters undertake FGM and told me that she wants my daughters to get FGM. I applied for protection in July 2016 because I didn't have any option and tried to figure out what decision to take. I made an excuse at the time that I will talk to my husband, and we will need to plan for the future. I am still in touch with mother, and she is aware of my feelings towards FGM. She tries to convince me to get the FGM done and recently told me that others in the community had it done, and she wishes my daughters to get this done as well.
5. My sister died at the end of 2020, and my mother really wanted me to go back. I didn't know what reason I could not come, and I had to tell her that I could not come back due to the fear of FGM. She was upset by this as doesn't believe FGM to harmful and believes that I have been brainwashed since I have left Guinea.
6. It is true that I have a good relationship with my mother, but in her eyes, she believes that FGM is the best thing for my daughters. Therefore, if I were forced to return to Guinea, she would force FGM upon my daughters. Even though I have tried to explain my views to her, she does not understand because it happened to her, and it happened to me, so she believes it is best for it to happen to my daughters. I believe that my daughters would be kidnapped by mother, aunties and family members and FGM would be undertaken on them.
7. My daughter would be circumcised against their will. I have experienced a lot of problems in my married life because of the FGM that was performed. I ended up having no sexual desire at all. I have had counselling regarding my issues in around 2017. I have provided details regarding this in my previous statement to the Department.
8. Everyone in my family and society believes in it, and I am not in a position to stop this from happening. I do not believe that this will be stopped. I don't have any power to stop FGM as it is something that has been happening for year and years. Families and the community do FGM because they believe that this is considered good to be circumcised. There are so many NGOs trying to stop this, but nothing happens. Some people do it in the hospitals and mostly the cultural elders do it. All of my siblings including me have had FGM done.
9. The family and community would stop me from interfering -they would take my daughters from me, and they would say it's forbidden to stop them from being taken. I would be isolated and not included in anything cultural, there would be harm to my kids in terms of getting FGM. They would organise and take the kids without me noticing. My mother and aunties will be able to take my daughters from me, especially as my aunty is someone who performs FGM.
10. If you try to oppose people, they do harm to you either by witchcraft, and if I try to stop them, they would harm me and my daughters. Being against FGM is not something that is spoken about - they can come for you in the middle of the night when everyone is sleeping, and they will come for my daughter.
11. Even if girls get married, the cultural practice is that FGM should happen to them because that is what the belief is. If girls haven't gotten it done when they are younger, they will have FGM on them after marriage. As a mother I cannot protect iny daughters - it is cultural, and it is something that has to happen. This is something I have gone through, and I do not want my daughters to go through this. From an African perspective, anything mental health is nothing and it is not spoken about. It is not just the FGM that would happen to my daughters, but the significant mental health issues that would occur afterwards - I know this is real because I am still going through it.
12. My father passed away in August 2020, my younger sister passed away at the end of 2016 (while giving birth), my cousin passed away in January 2019, and my other sister passed away in January 2020. If I did not fear harm of the FGM happening in Guinea I would have definitely gone back to Guinea for their funerals. Sometimes I really regret this, but my daughter's safety is more important to me. My mother-in-law also has cancer, and she fears that she will never see her grandchildren. I haven't seen my husband for three years - If I didn't want the best thing for my kids: I would not stay here.
13. At the moment I am in Australia and my mother cannot pressure me to get FGM done. If I am forced to return to Guinea, I believe that the situation with my mother will get worse and she can easily take my daughters against my will because it is a cultural accepted procedure, and no one will listen to me. My husband is also against FGM, but it is cultural forbidden for men to get involved so it will be me alone who will be trying to save my daughters. If he does get involved, it would actually be riskier for him as he would be harmed.
Relocation in Guinea and Other African Countries
14. I cannot relocate to another area in Guinea and away from a Tribal network. They would also find me as well easily. It happens in all quarters in Guinea -when FGM happened to me I wasn't even living in my home area, it happened elsewhere. Because it happens within the family, even if you are travelling, they will come and take you. Even if I go to another area in Guinea, my family will find me - the family dynamics is quite different in Guinea, it's not like my husband and my daughters and me will live alone, you will always a family member living you. If was forced to return to Guinea the only place I can go is where my mother is, as I cannot subsist or survive in another area without tribal and family support- it is too dangerous to go back where my mother is.
15. My husband is no longer in [Country 1] and has started a new job with [Employer 2] in [Country 2] - he travels from one country to another as he works on a contract basis. My husband works in the crisis countries, and he is unable to take the family along with him. If I were to go back, I would be returning to Guinea. My husband is now in central Africa and travels a lot for work and spends 6 months.in every place that he goes to. My daughters and I do not have a right to return to [Country 1].
16. I have been [Countries 1 and 3-5], I have not been to any other African nations. I am aware of the ECOWAS treaty and believe that I cannot go to any of these countries. You need to have something there, and the reason we were able to go to [Country 1] was because we were considered expats. Further, FGM occurs in the neighbouring countries to Guinea as well, therefore it will possible that FGM may happen to them there as well.
17. I do not believe I will be able to subsist on my own with my daughters in any of the ECOWAS countries -you have to know someone in these countries in order to subsist. Having to go to any other country would have a significant mental effect on my daughters as they have been here since 2014.
State Protection
18. I do not believe that the government can protect my daughters from FGM done. This is because it is considered a normal practice in Guinea. I recently read a case where a little girl went for a holiday to see her grandmother and had FGM done on her and died, and her mother couldn't do anything. It was only when the little girl died that the government looked to arrest the person that did it.
19. As stated above, if you are against FGM too much, they can perform some African magic and you end up dying mysteriously. They question you about why you want to fight things that have existed for years and years.
20. There is a lot of corruption in Guinea as well- FGM is also happening hospital in Guinea as well which shows you that they are all corrupt.
My Mental Health
21. I started understanding the mental effects FGM after I got married, this is when the triggers occurred. I have been married for [Number] years and have been dealing with the issues for [Number] years, since [Year]. We left Guinea in 2009, then moved to [Country 1] for a couple of years, and then I came to Australia.
22. While I was in Guinea and [Country 1], I understood a little about the mental effects however there was no one to speak with. I could only speak with my husband who has always been supportive. I started seeing a psychologist after 2016 after I came back from Guinea and my mother had pressured me a lot to have FGM done on my daughters. I saw a psychologist 5-6 times.
23. There are also a lot of physical implications of FGM, and I do not have any sexual desire. The main reason they get this done on girls as they believe it makes you stay with only one man, and it makes you become a 'complete woman'.
24. This is something I want to protect my daughters from as it is not a good feeling, and I don't want them to go through it.
[…]
In her 2023 Submissions, [Ms C] contentions included, among other things:
a.The applicants have a well-founded fear of persecution in Guinea for reason of their membership of the following particular social groups as follows:
i.women who are at risk of FGM/C (all applicants); and
ii.a woman who has experienced and is against FGM/C (Applicant 1).
b.The delegate failed to consider the specified harm that Applicant 1 was advancing in her claims regarding being someone who would not have her daughters circumcised.
c.The applicants do not know anyone that they might look for protection from the danger of victimisation, harassment or serious abuse because of their gender and the dangers of FGM/C in Guinea.
d.Applicant 1 has provided evidence in her most recent statutory declaration that her mother now knows of her beliefs and sentiments towards the FGM/C procedure being performed on her daughters and did not agree with Applicant 1’s beliefs in this regard. The Applicant’s mother expressed her views and her wishes for FGM/C to be performed on Applicant 1’s daughters. Accordingly, in light of the following country information, should Applicant 1 and her daughters be forced to return to Guinea and placed into an environment where Applicant 1’s mother and community resides, this puts them at a higher risk of the Applicant’s mother and other community members exerting pressure on, or forcefully having FGM performed on the daughters.
e.They further refer the Tribunal to the UNHCR approach which supports Applicant 1’s contention regarding the psychological harm she has endured as a result of FGM: “[d]epending on the individual circumstances of her case and the particular practices of her community, she may fear that she could be subjected to another form of FGM and/or suffer particularly serious long-term consequences of the initial procedure. In other words, there is no requirement that the future persecution feared should take an identical form to the one previously endured, as long is it can be linked to a Convention ground.”
f.Country information also suggests that FGM can be performed again in Guinea, and that FGM is not a one-off past experience that cannot potentially be repeated on the same girl or woman (citing: UN High Commissioner for Refugees (UNHCR), Guidance Note on Refugee Claims relating to Female Genital Mutilation, May 2009, p 8-9). Whilst the Applicant does not fear FGM being performed again on her, this country information is important to note with respect to the general prevalence of FGM occurring in Guinea.
g.In light of the referred reporting by numerous reputable organisations, we submit that effective state protection for the applicants is not available.
h.Given the prevalence of FGM/C across all regions of Guinea, it is submitted that the applicants cannot safely relocate within Guinea to avoid harm of FGM/C. It is submitted that relocation here is an impugned factor due to the influence that the Applicant 1’s family and the wider community will have on their decision to subject her daughters to FGM/C, regardless of where they reside in Guinea and regardless of Applicant 1 and her husband’s strong opposition to the practise.
i.The applicants would not be able to relocate to any area safely in Guinea, on the basis that they would be at risk of harm throughout Guinea, their capacity to subsist will be severely compromised and they would experience significant hardship in resettling elsewhere in Guinea. Family and community member influence and pressure, which could cause condemnation and persecution, would be such that it would be difficult for Applicant 1 to resist the pressure of their community to circumcise her daughters.
j.The refusal to undergo FGM/C is likely to result in Applicant 1 and her daughters being ostracised, denied marriage opportunities from within the community, excluded from society, stigmatised, outcast and even threatened and harassed. The country information referred supports the contention that women and girls in Guinea a face a high risk of societal discrimination and violence, and risk of having FGM/C performed. Women who are economically disadvantaged, culturally or geographically isolated are particularly vulnerable, and lack access to support services.
k.The applicants continue to be at the risk of harm in neighbouring countries in Africa as well due to the high prevalence of cross-border FGM/C.
l.Resonating and supporting the Applicant’s claims of not having the right to enter and reside in an ECOWAS country, we refer to the Tribunal’s comments in 1930909 (Refugee) [2022] AATA 3346 (8 August 2022). The Tribunal found that the applicant in 1930909 did not have an existing right to enter and reside in ECOWAS countries due to her not having a valid passport, the uncertainty of obtaining an ECOWAS travel certificate, and the border closures between ECOWAS states.
m.The Department’s December 2020 DFAT Thematic Report – ECOWAS report also supports the contention that the applicants do not have a right to enter and reside in ECOWAS neighbouring states.
n.They also refer the Tribunal to its comments in 1512488 (Refugee) [2019] AATA 6798 (16 September 2019) and the country information noted in the decision, where extensive explanations and conclusions have been provided in regard to the applicant’s inability to reside permanently or seek protection in any ECOWAS member country.
o.In the alternative, if the Tribunal forms the view that Applicant 1 does not satisfy the criteria under s 36(3) of the Act, Applicant 1 meets the criteria as set out in section 36(4)-(5) of the Act. Applicant 1 has put forward claims regarding fear of harm of FGM if she is to return to Guinea, and on this basis, she believes her daughters will be at risk of harm in any neighbouring countries which FGM practices are prevalent, including the ECOWAS member states.
p.The Department’s December 2020 DFAT Thematic Report – ECOWAS report supports the contention that FGM/C is highly prevalent across the ECOWAS region.
q.In light of the above, in particular with respect the prevalence of FGM in ECOWAS countries, gender based violence against women and the treatment of asylum seekers by EAC countries as noted in 1930909 (Refugee) [2022] AATA 3346 (8 August 2022) and 1515415 (Refugee) [2017] AATA 3010 (14 December 2017), the AAT Guidelines on Third Country Protection, it is submitted that Applicant 1 and her daughters would be harmed in these countries. To this effect, the Applicant and her daughters are not excluded under section 36(3) of the Act.
On 20 September 2023, the applicants appointed a different legal practitioner at WLW Migration Lawyers as their authorised recipient and legal representative.
On 2 May 2024, the applicants appointed Ms Jess Jeyaneshan (Ms Jeyaneshan) of WLW Migration Lawyers as their authorised recipient and legal representative.
On 27 August 2024, Ms Jeyaneshan provided the following further material to the Tribunal in support of the applicant’s claims:
a.Uncertified copies of clinical notes purporting to have been prepared by Clinical Psychologist, [Dr D] in respect of her consultations with Applicant 1 on: 23/07/2024; 10/07/2024; 04/03/2024; 12/02/2024; and 15/03/2023 ([Dr D] Clinic Notes).
b.Correspondence dated 15 March 2023 from [Dr D] to [Dr E] (2023 [Dr D] Letter) advising, among other things:
[…]
[The applicant]'s scores on the DASS 21 indicated she is suffering from Extremely Severe Depression (16/21), with co-morbid Extremely Severe Anxiety (15/21) and Stress (17/21.) She reports she has been experiencing the above conditions for at least 4 years. These are now impacting on her ability to cope with day-to-day tasks, including managing her household and carrying out employment.
She is open to commencing anti-depressant medication and has made an appointment to see you this week to discuss.
[…]
c.Correspondence dated 6 August 2024 from [Dr D] to the Department of Home Affairs (2024 [Dr D] Letter) advising, among other things (A:
[…]
[The applicant]s psychological and emotional presentation indicates she is suffering from extremely severe major depressive disorder with co-morbid extremely severe anxiety and stress due to the current situation; she has been prescribed anti-depressants.
[…]
During my time with [the applicant], I have observed her genuine distress and I have grave concerns that her mental health will significantly deteriorate if this situation cannot be resolved in the near future.
[…]
By correspondence dated 25 September 2024, Ms Jeyaneshan consented on Applicant 1’s behalf for the purposes of s 425(2)(b) of the Act, to the Tribunal deciding her review without the Tribunal inviting her to appear before the Tribunal at a hearing, conditional on the Tribunal finding that she is a member of the same family unit of Applicant 2 and Applicant 3, and the Tribunal finding Applicant 2 and Applicant 3 meet s 36(2)(a) in their own right.
No other information has been received from the applicants.
Country information
Background
In 1958, Guinea achieved independence from France and Sekou Toure became Guinea’s first post-independence president.[1] Toure established a dictatorial regime and ruled until his death in 1984, after which General Lansana Conte staged a coup and seized the government.[2] He too established an authoritarian regime and manipulated presidential elections until his death in 2008, when Captain Moussa Dadis Camara led a military coup, seized power, and suspended the constitution.[3] In 2009, Camara was wounded in an assassination attempt and was exiled to Burkina Faso.[4]
[1] United States Government, Central Intelligence Agency (CIA), The World Factbook, Guinea, available at: Ibid.
[3] Ibid.
[4] Ibid.
In 2010 and 2013 respectively, the country held its first free and fair presidential and legislative elections.[5] Alpha Conde won the 2010 and 2015 presidential elections, and his first cabinet was the first all-civilian government in Guinean history.[6] Conde won a third term in 2020 after a constitutional change to term limits.[7] In 2021, Col Mamady Doumbouya led a successful military coup, establishing the National Committee for Reconciliation and Development (CNRD), suspending the constitution, and dissolving the government and the legislature.[8] Col Doumbouya was sworn in as transition president and appointed Mohamed Beavogui as transition prime minister.[9]
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
The National Transition Council (CNT), which acts as the legislative body for the transition, was formed in 2022 and consists of appointed members representing a broad swath of Guinean society.[10] On 27 September 2021, the Transitional Charter came into effect which superseded the constitution until a new constitution is promulgated.[11]
[10] Ibid.
[11] Ibid.
The United States Department of State (USDOS) advises in its most recent Country Report on Human Rights Practices for Guinea, firstly, there were no significant changes in the human rights situation in Guinea during 2023, and secondly, significant human rights issues included credible reports of: “arbitrary or unlawful killings, including extrajudicial killings; torture or cruel, inhuman, or degrading treatment or punishment by the government; […] restrictions on freedom of movement and residence within the territory of a state and on the right to leave the country; […] serious government corruption; extensive gender-based violence including female genital mutilation/cutting; trafficking in persons; […]”.[12]
Sexual and gender based violence
[12] United States Government, Department of State, 2023 Country Reports on Human Rights Practices: Guinea (USDOS 2023 Report), EXECUTIVE SUMMARY, available at:
The Republic of Guinea ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[13] in 1982, and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)[14] in 2012.[15] Amnesty International reports that Guinea has adopted certain legal provisions and national policies and strategies relating to the issue of women's rights in general and sexual and gender-based violence, but despite those efforts to strengthen the legal framework, the effective implementation of those measures and reforms remains weak due to the lack of institutional mechanisms, functional operational tools and the lack of awareness and involvement of the population.[16] And this is due in part to the challenges associated with the coexistence of the legal system with discriminatory traditional and religious customs and practices.[17]
[13] Convention on the Elimination of all Forms of Discrimination against Women, adopted 18 September 1979, entered into force 3 December 1981.
[14] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa | African Union.
[15] Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p13, available at:
[16] Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p13, available at: Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p13, available at: >
Amnesty International reports that sexual violence is a significant issue in Guinea.[18] Both the UN Human Rights Committee and the Committee on Economic, Social, and Cultural Rights expressed deep concern in their 2018 and 2020 concluding observations on the state reports, respectively, regarding the widespread nature of sexual violence.[19] USDOS reports that in 2023 girls between ages 11 and 15 were most vulnerable to sexual assault, including rape, and represented more than half of all rape survivors.[20]
[18] Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p7, available at: United Nations Human Rights Committee, Concluding observations on the Third Periodic Report of Guinea, 26 October 2018, available at: United Nations Committee on Economic, Social and Cultural Rights, Concluding observations on the initial report of Guinea, 6 March 2020, available at:
[20] USDOS 2023 Report, at Section 6. Discrimination and Societal Abuses, Children, Sexual Exploitation of Children.
The World Bank reports that young women aged 15 to 24 and women aged 25 to 34 face the highest risk of experiencing physical gender-based violence (60.9 percent and 69.7 percent, respectively).[21] And that nearly 29.3 percent of women have experienced at least one form of sexual violence since the age of 15, with the share higher in urban (35.4 percent) than in rural (25.8 percent) areas.[22] Amnesty International similarly reported in 2022 that a survey conducted in 2016 by the Ministry of Social Action concluded that nearly 29.3% of women have suffered sexual violence at least once since the age of 15; nearly 20% have been victims of rape at least once since the age of 15 in several regions; and almost 30% have been victims of marital rape at least once since the age of 15 in some regions.[23]
[23] Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p8, available at: citing: Ministry of Social Action, Women’s Promotion and Childhood, “National Survey on Gender-Based Violence in Guinea”, March 2017, available at:
Amnesty International reported in 2022 that in 2021, the forensic medicine service of the Ignace Deen University Hospital Centre (CHU) in Conakry received 638 rape victims.[24] In their Country of Origin Compilation for Guinea dated 21 December 2023, the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD) cites a public health information source quoting Professor Hassan Bah, head of the department for forensic medicine of the Ignace Deen hospital in Conakry, as saying that sexual assaults account for about 30 percent of forensic consultations, which – as he notes – is a very high figure compared to other forms of gender-based violence such as physical, domestic, and intra-family violence. And in terms of frequency and the severity of the injuries, sexual assaults are in first place, and 70 percent of victims that are received for treatment are under the age of 12.[25]
[24] Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p8, available at: Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), 'Guinea: COI Compilation', 21 December 2023, at p39, 20231229142503.
Amnesty International reported in December 2021 that due to the stigma associated with rape, it is often not reported nor are complaints filed. And that rape cases are often “handled through mediation and out-of-court settlements between the victims or their families and the alleged perpetrators or their families”.[26] That same report also refers to rape victims and their families sometimes being forced to move to another area to escape the stigmatisation and social isolation they are facing by their community.[27] Academic research also indicates victim survivors of rape sometimes also fear discrimination by their own families.[28]
[27] Amnesty International: ‘Guinea: Horrific cases of rape and murder of girls must urge authorities to strengthen their efforts to prevent and combat sexual violence’, 15 December 2021, at p43, available at: Balde, Mamadou Dioulde et al.: Perception of Women on Gender-Based Violence in Guinea: A Qualitative Study. In: International Journal of Women’s Health and Wellness, Volume 8, Issue 1, 20 February 2022, at pp4-5, available at:
In addition to the “socio-cultural constraints”[29], other factors that restrict victims’ access to help include the requirement for a forensic certificate to file a complaint, the lack of specialised doctors, and costs related to medical examinations and legal fees.[30] Studies indicated citizens also were reluctant to report crimes because they feared police would ask the survivor to pay for the investigation.[31]
Female Genital Mutilation/Cutting
[29] Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p33, available at:
[30] Amnesty International, Shame Must Change Sides: Ensuring Rights and Justice for Victims of Sexual Violence in Guinea, 27 September 2022, at p9, available at:
[31] USDOS 2023 Report, at Section 6. Discrimination and Societal Abuses, Women, Rape and Domestic Violence.
The United Nations Children's Fund (UNICEF) reported in 2024 that Guinea has he second highest prevalence of Female Genital Mutilation/Cutting (FGM/C) in Africa with 95% of all girls and women aged 15 to 49 years having been subjected to it.[32] UNICEF further reported in 2024:
a.30 years ago the percentage girls and women aged 15 to 49 years who had been subjected to FGM/C was around 99%, (compared to the current proportion of 95%) indicating a decline to present day of only around 4%.[33]
b.24% of girls and women in Guinea aged 15 to 49 years who have undergone FGM/C think the practice should stop, while 31% of boys and men aged 15 to 49 years who live in a household with at least one person who has undergone FGM/C think the practice should stop.[34]
c.The projected percentage of adolescent girls aged 15 to 19 years who have undergone female genital mutilation in 2030 is 88%.[35]
[32] 'Female Genital Mutilation: A global concern', United Nations Children's Fund (UNICEF), 07 March 2024, at p4, 20240312164327.
[33] 'Female Genital Mutilation: A global concern', United Nations Children's Fund (UNICEF), 07 March 2024, at p13, 20240312164327.
[34] 'Female Genital Mutilation: A global concern', United Nations Children's Fund (UNICEF), 07 March 2024, at p10, 20240312164327.
[35] 'Female Genital Mutilation: A global concern', United Nations Children's Fund (UNICEF), 07 March 2024, at p14, 20240312164327.
Research further indicates its prevalence in urban areas (94.8%) is comparable to rural areas (94.3%), with the capital of Conakry showing a prevalence of 95.6%, and that it is practiced widely by all ethnic groups in Guinea.[36] Credible sources report this prevalence is a contributor to the high morbidity and mortality among females in Guinea.[37]
[36] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.3-4, 20230120101354.
UNICEF previously reported that Guinea is estimated to have the second highest prevalence of FGM/C in the world behind Somalia.[38] The World Bank reports that the rates of FGM/C have only slightly decreased since 1999.[39]
[39] World Bank (The): Unlocking Women’s and Girls’ Potential - The Status of Women and Girls Relative to Men and Boys in Guinea, 9 May 2023, p. 35, available at:
The African Women’s Development and Communication Network (FEMNET), a pan-African feminist network, notes that FGM/C is practised by all ethnic, religious, and social groups across the country.[40] FEMNET also reports that about 80 percent of women who had undergone FGM/C were cut by a traditional cutter called “Zowo”.[41] Some sources also point to a shift away from traditional cutting to medicalised FGM/C, performed by medical professionals and according to FGM/C Research Initiative ‘28 Too Many’, the percentage of women and girls who underwent medical FGM/C increased from 9 percent in 1999 to 17 percent in 2018, and as of 2018, 35 percent of girls aged 0 to 14 experienced medical FGM/C.[42]. The World Bank assesses that awareness campaigns and the penalization of FGM/C have likely contributed to the increasing medicalisation of FGM/C.[43]
The World Bank assesses FGM/C to be widely accepted by society in Guinea, thereby increasing the pressure to undergo the practice.[44] In this regard, 28 Too Many reports that the continuing the practice of FGM/C is explained by respect for customs, social recognition, religion[45], while ACCORD cites sources indicating it to derive from a continued control over female sexuality.[46] The leader of the Young Girls Leaders Club of Guinea (Le Club des jeunes filles leaders de Guinée (CJFLG)) has been quoted by media outlets in this context as follows:
There are several reasons why genital mutilation is carried out. That could be for cultural reasons or tradition – some people say that their grandparents did it, people think they should do it. There could be economic reasons because it is a source of revenue for the people who carry it out. It can be related to ideas of dignity and honour. It’s also related to the desire of a patriarchal society to control the sexuality of a growing girl.
Some people think that it will limit the risk of teen pregnancies. Some people think that husbands don’t like women who aren’t mutilated…People always find a way to justify their behaviour.[47]
[44] The World Bank: Unlocking Women’s and Girls’ Potential - The Status of Women and Girls Relative to Men and Boys in Guinea, 9 May 2023, at p35, available at:[45] 28 Too Many: FGM in Guinea. Short Report, September 2021, at p2, available at:[46] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), 'Guinea: COI Compilation', 21 December 2023, at p43, 20231229142503.
[47] France24: Video documents female genital mutilation camp in Guinea, 27 July 2023
According to FEMNET, FGM/C is also strongly linked to a girl’s prospect of marriage as it is often a prerequisite, and there is a strong link between FGM and marriageability, including because FGM/C is believed to control female sexual behaviour and ensure women’s virginity by reducing their sexual desire, preserve virginity, marital faithfulness and prevent promiscuity.[48] And that girls and women will usually be under strong social pressure, including pressure from their peers and risk victimisation and stigma if they refuse to undergo the procedure.[49] FEMNET also reports that non-excision of girls is considered dishonourable in Guinean society and that such social pressure leads girls to request excision for fear of being excluded or forced to remain unmarried if they do not undergo the practice.[50]
[49] Ibid.
[50] Ibid.
Academic research indicates the primary reason for why FGM/C is so prevalent in Guinea is due to respect for ancestral customs, followed by the objective of restraining women’s sexuality (before and during marriage), the purpose of which is to safeguard the family’s honour.[51] And that the “positive attributes” of FGM/C therefore seem to be combined with its traditional nature, as the practice appears, for many people, to be deeply rooted and internalized.[52] Moreover, submission to the sociocultural norm of cutting girls is reinforced by social pressure, as well as by stigmatization and ostracism in cases of non-compliance, and in such context.[53] That source opines that for these reasons it is virtually impossible to escape the practice without suffering negative social consequences.[54]
[51] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.3, 20230120101354.
[52] Ibid.
[53] Ibid.
[54] Ibid.
A Response to Information Request (RIR) published by the Immigration and Refugee Board of Canada in 2018 regarding FGM/C in Guinea[55] advises as follows:
a.The Office of the United Nations High Commissioner for Human Rights (OHCHR) reported in 2016 (2016 UN report) that, according to young Guineans interviewed about FGM/C, the consequences of not being excised include social stigmatization, denial of the right to speak, prohibition from taking part in customary ceremonies, [translation] “disrespect, mockery, insults and hurtful remarks,” and the alienation of women’s groups or associations. According to the same source, [translation] “in every Guinean community, to say that a woman is not excised is dishonourable and a grave insult”. [56]
b.In a telephone interview with the Research Directorate, Dr. Alpha Amadou Bano Barry (Dr. Barry), Scientific Director of the Laboratory of Socio-Anthropological Analysis of Guinea (Laboratoire d'analyse socio-anthropologique de Guinée, LASAG) at the General University Lansana Conte of Sonfonia-Conakry (Université Général Lansana Conté de Sonfonia-Conakry, UGLC SC), noted that in statistical studies on the prevalence of FGM in Guinea, many women who have not been excised still report that they have been.
c.The 2016 UN report explains that parents who are aware of the adverse effects of FGM continue the practice due to social pressure (2016 UN report at p18). Based on information obtained in 2005, the same source states that [translation] “the non-excision of girls is considered dishonourable for many families—this dishonour is perceived as more harmful than the health risks” (2016 UN report at p18). The same source reports that, because of social pressure, Guinean girls themselves say that they want to be excised (2016 UN report at p18). Similarly, to show the prevalence of FGM in Guinea, Dr. Barry mentioned the case of two non-excised girls who, after being ridiculed at school, asked their mothers to have them excised.
d.According to Dr. Barry, a family deciding not to excise one of its daughters will not tell anyone for fear of being socially stigmatised. The same source reported that in most communities, girls are excised between the ages of 9 and 15, and it is therefore impossible for a girl to refuse.
e.According to the study conducted by Dr. Barry, local NGOs identify and educate non-excised girls in Upper Guinea and Guinea’s Forest Region. According to the same source, the highest proportion of respondents believes that girls identified as non-excised are mocked and rejected by the people around them and those who are aware of their situation, leading to their [translation] “eventual excision”. With respect to girls identified as non-excised, the same source states the following: “[translation] [f]or all respondents, identifying non-excised girls and protecting them could be an appropriate and effective strategy if the families themselves replaced NGO facilitators. But this scenario would require another set of dynamics that is still a long way off.”
f.In the telephone interview, Dr. Barry stated that it is becoming more common for families who refuse to excise their daughters to pretend to do so. According to the same source, the families then take the girls to the community health centre where they are [translation] “slightly injured” as a pretence for excision. Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
[55] Research Directorate, Immigration and Refugee Board of Canada, Guinea: The practice of female genital mutilation (FGM), particularly among the Peul [Peuhl, Fulani] and in Conakry; the possibility of refusing excision and the consequences for parents and children if there is a refusal; state protection available (2016-January 2018), 8 January 2018, GIN106039.FE, available at:
[56] Office of the High Commissioner for Human Rights (OHCHR), Rapport sur les droits humains et la pratique des mutilations génitales féminines/excision en Guinée, April 2016, at p19.
Country information sources indicate that those who oppose FGM (including by publicly advocating against the practice or by refusing to allow their family members to undergo the practice) face social pressure, stigmatisation and ostracism.[57]
[57] Immigration and Refugee Board of Canada, ‘Guinea: The practice of female genital mutilation (FGM), particularly among the Peul [Peuhl, Fulani] and in Conakry; the possibility of refusing excision and the consequences for parents and children if there is a refusal; state protection available (2016-January 2018)’, 8 January 2018, 20230120101128; ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.7, 20230120101354; ‘Involving the health sector in the prevention and care of female genital mutilation: results from formative research in Guinea’, Reproductive Health, Vol. 19, 8 July 2022, 20230120102502.
Academic research published in 2020 presented a study investigating the treatment of people who oppose FGM in Guinea. All of the respondents in the study did not allow their daughters to experience FGM: some were publicly advocating against FGM; others did not hide or advertise their beliefs; and some pretended to have their daughters cut to avoid negative social repercussions.[58] That research indicated that families who “do not conceal their status, but do not advertise their decision either […] remain relatively invisible to the rest of the population”.[59] However, some respondents in the study stated that once it was known that their daughters were not going to undergo FGM/C, the mother and grandmother were criticised and rejected as they were “living in a social environment that was highly hostile to those who dare not conform to the FGM tradition”.[60] In some circumstances, parents said they ‘must protect their daughters from certain family members—commonly paternal aunts and grandmothers—who could potentially “steal” their children to have them cut behind their backs’.[61] According to that publication, “most interviewees […] stated they experience no significant problem relating to the pro-FGM social pressure”.[62]
[58] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.7, 20230120101354.
[59] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.3, 20230120101354.
[60] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.9, 20230120101354.
[61] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.8, 20230120101354.
[62] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.11, 20230120101354.
Amnesty International reports that a national strategy to promote an end of female genital mutilation was adopted in 2019[63]. UNICEF also reports that in December 2021, the transitional government committed to an end to gender-based violence (GBV), including FGM/C and other forms of violence against women and children[64]
[63] Amnesty International, “Shame must change sides: Ensuring Rights and Justice for victims of sexual violences in Guinea, 27 September 2022, at p13, available at:[64] United Nations Children’s Fund (UNICEF) & United Nations Population Fund (UNFPA): Delivering and Sustaining in the New Normal. 2021 Country Profiles. 2021 Annual Report and Overall Phase III Performance and Analysis, 26 September 2022, at p15, available at:
USDOS reports Guinea law specifies imprisonment of 5 to 20 years and a fine if a victim of FGM/C was severely injured or died; if the victim died within 40 days of the procedure the penalty prescribed up to life in prison or death.[65] And that the law provides for imprisonment of three months to two years and fines for perpetrators who did not inflict severe injury or death.[66] USDOS reported that these laws were not effectively nor regularly enforced in 2023. USDOS also reports that, although the Transition Charter does not explicitly prohibit FGM/C, it grants individuals the right to their physical integrity, and prior to 2021, the constitution and laws prohibited FGM/C.[67]
[65] Ibid.
[66] Ibid.
[67] USDOS 2023 Report, at Section 6. Discrimination and Societal Abuses, Female Genital Mutilation/Cutting (FGM/C).
USDOS reports that during 2023, the government implemented actions to combat FGM/C as follows:
a.In January, 37 agents from integrated services (justice, police, gendarmerie, and health) received training focused on the prevention and the provision of medical, legal, judicial, and psychosocial care related to gender-based violence and FGM/C.
b.In March, members of the National Transition Council, the transitional legislative body, sought training from UNICEF training to address the problem of FGM/C when drafting the new constitution.
c.Between January and July, 105 communities from the regions of N’Zérékoré, Mamou, Labé, and Faranah publicly committed to abandoning FGM/C and child marriages within their communities. These commitments were accompanied by post-declaration monitoring mechanisms.
d.On September 4, the government officially launched a platform to centralize national data on FGM/C.[68]
[68] Ibid.
According to 28 Too Many, there has been legislation prohibiting FGM/C in Guinea since 1965.[69] In respect of legal protections ACCORD, relevantly advises:
a.Currently, Article 258 of the Penal Code of 2016 (Law No. 2016/059/AN) prohibits all forms of FGM/C, and Article 259 stipulates that anyone who by traditional or modern methods practises, promotes or participates in FGM/C is guilty of deliberate violence against the person being excised and punishable with up to 2 years (under some circumstances up to 5 years) of imprisonment or a fine, or both.
b.Parents or other persons who allow or promote FGM/C are subject to the same punishment as those who perform it. The maximum penalty is always applied when FGM is performed in a public or private health facility and promoted by a medical or paramedical professional (Law No. 2016/059/AN, 26 October 2016, Articles 258, 259).
c.The Children’s Code of December 2019 (Law No. 2019/0059/AN), promulgated by the President in March 2020, refers to FGM/C in Articles 774 to 781, the prohibition of FGM/C is stipulated in Article 775 (Law No. 2019/0059/AN, 30 December 2019, promulgated 11 March 2020).[70]
[69] 28 Too Many: FGM in Guinea. Short Report, September 2021, at p3, available at:[70] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), 'Guinea: COI Compilation', 21 December 2023, at p42, 20231229142503.
ACCORD further reports that, despite the above, sources report that the Guinean authorities report that FGM/C practice continues and is rarely prosecuted.[71]
ECOWAS
[71] Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), 'Guinea: COI Compilation', 21 December 2023, at p42, 20231229142503.
The Department of Foreign Affairs and Trade (DFAT) reports that the Economic Community of West African States (ECOWAS) is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. [72] The signing of the Economic Community of West African States (ECOWAS) Treaty (ECOWAS Treaty) in Lagos on 29 May 1975 represented a desire among West African states to better regulate migration and promote regional economic integration.[73]
[72] Department of Foreign Affairs and Trade, DFAT Thematic Report - Economic Community of West African States (ECOWAS), 03 December 2020 (DFAT ECOWAS Report), at [2.1], 20201203123827.
[73] DFAT ECOWAS Report, at [3.1]. Member states signed a revised treaty in Cotonou in July 1993 that aimed to strengthen further intra-regional economic and political integration and regional unity across national and linguistic borders.
Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. Morocco formally applied to join ECOWAS in February 2017 but had not been accepted as at 3 December 2020.[74]
[74] DFAT ECOWAS Report, at [2.1].
In 1979, the heads of state adopted the Protocol to the Treaty Relating to Free movement of Persons, the Right of Residence and Establishment, and it entered into force in 1980 (The Protocol).[75] Sources report that The Protocol envisaged that the right of entry, residence and establishment would be accomplished within fifteen years, in phases of five years each, with the first phase of visa-free entry for 90 days to come into force immediately.[76]
[75] Protocol A/P.1/5/79 Relating to Free Movement of Persons, the Right of Residence, and Establishment.
[76] UN High Commissioner for Refugees (UNHCR) International Organization for Migration (IOM), Bronwen Manby, Nationality, Migration and Statelessness in West Africa: A study for UNHCR and IOM, June 2015, at p81.
The ECOWAS Authority (the meeting of heads of state and government) has adopted several supplementary protocols to the original protocol, including those relating to: a code of conduct for implementation in 1985[77]; the right of residence in 1986[78]; and the right of establishment in 1990[79]. There are also several decisions by the ECOWAS Authority: on travel certificates[80], on residence cards[81], and on harmonised immigration and emigration forms.[82] In 2000, ECOWAS Authority decided to adopt a common format passport.[83] However, 8 member states (7 francophone and one lusophone: Benin, Burkina Faso, Côte d'Ivoire, Guinea-Bissau, Mali, Niger, Sénégal and Togo) of the West African Economic and Monetary Union (UEMOA), have separate agreements on freedom of movement, allowing travel and residence based only on a national identity card rather than a passport.[84]
[77] Supplementary Protocol A/SP.1/7/85 on the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment.
[78] Supplementary Protocol A/SP/.1/7/86 on the Second Phase (Right of Residence) of the Protocol on Free Movement of Persons, the Right of Residence and Establishment.
[79] Supplementary Protocol A/SP.2/5/90 on the Implementation of the Third Phase (Right of Establishment) of the Protocol on Free Movement of Persons, Right of Residence and Establishment.
[80] Decision A/DEC.2/7/85 of the Authority of the Heads of State and Government of ECOWAS relating to the Establishment of ECOWAS Travel Certificates for Member States.
[81] Decision A/DEC.2/5/90 establishing a Residence Card in ECOWAS Member States.
[82] Decision C/DEC.3/12/92 on the Introduction of a Harmonised Immigration and Emigration Form in ECOWAS Member States. All these texts are reproduced in An ECOWAS Compendium on Free Movement, Right of Residence and Establishment, March 1999.
[83] Decision C/DEC.1/5/2000 on the adoption of an ECOWAS Passport.
[84] Traité de l’Union Monetaire Ouest Africaine, 1984, revised 2007, and associated directives; see also: UN High Commissioner for Refugees (UNHCR) International Organization for Migration (IOM), Bronwen Manby, Nationality, Migration and Statelessness in West Africa: A study for UNHCR and IOM, June 2015, at p82.
DFAT reports that ECOWAS consists of three distinct linguistic blocs, emanating from the region’s colonial past, with the Anglophone region comprising of The Gambia, Ghana, Liberia, Nigeria and Sierra Leone; and the Francophone region consisting of Benin, Burkina Faso, Cote d’Ivoire, Guinea, Mali, Niger, Senegal and Togo; while the smaller Lusophone region consists of Cabo Verde and Guinea Bissau.[85] DFAT assesses that these linguistic divisions and differences between the political cultures of the Anglophone and Francophone blocs, in particular, reportedly contribute to occasionally challenging ECOWAS membership dynamics.[86] And the linguistic divide is reflected in the existence of two economic sub-groups within ECOWAS: all Francophone countries bar Guinea are members of UEMOA, which also includes Guinea-Bissau and which is a customs and currency union for countries using the West African franc; while Guinea and the five Anglophone countries make up the West African Monetary Union, which plans to introduce a separate common currency.[87]
[85] DFAT ECOWAS Report, at [2.2].
[86] DFAT ECOWAS Report, at [2.2].
[87] DFAT ECOWAS Report, at [2.2].
Media outlets report that in July 2024 military junta leaders of Niger, Mali and Burkina Faso ruled out returning their nations to ECOWAS, and that this division could further jeopardise efforts to undo coups and curb violence spreading across the region.[88] Analysts advised there is deep division in ECOWAS, which had emerged as the top political authority for its 15 member states before the unprecedented decision of these three countries to withdraw their membership.[89]
[88] 'Military leaders of Niger, Mali and Burkina Faso rule out returning to the ECOWAS regional bloc', Chinedu Asadu and Dalatou Mamane, Associated Press (AP), 07 July 2024, 20240710132754.
[89] 'Military leaders of Niger, Mali and Burkina Faso rule out returning to the ECOWAS regional bloc', Chinedu Asadu and Dalatou Mamane, Associated Press (AP), 07 July 2024, 20240710132754.
The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment.[90] These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment[91] and its Supplementary Protocols, commonly referred to as the Free Movement Protocol.[92] All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region, and ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.[93]
[90] DFAT ECOWAS Report, at [3.2].
[91] Economic Community of West African States (ECOWAS), Protocol Relating to Free Movement of Persons, Residence and Establishment, 29 May 1979.
[92] DFAT ECOWAS Report, at [3.2].
[93] DFAT ECOWAS Report, at [3.2].
DFAT reports that the ECOWAS Treaty confers the status of ECOWAS community citizenship on the citizens of ECOWAS member states.[94] And the Right of Entry affords all ECOWAS community citizens in possession of valid travel documents and international health certificates the right to stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements.[95] DFAT advises that, in accordance with the Right of Residence, ECOWAS community citizens have the right to settle or establish in another member state other than their state of origin, ‘and to have access to economic activities, to carry out these activities as well as to set up and manage enterprises, and in particular companies, under the same conditions as defined by the legislation of the host Member State for its own nationals’.[96]
[94] DFAT ECOWAS Report, at [3.3].
[95] DFAT ECOWAS Report, at [3.3].
[96] DFAT ECOWAS Report, at [3.3].
DFAT reports that ECOWAS community citizens wishing to utilise the Right of Residence must apply and obtain a residence permit or work permit just like non-ECOWAS immigrants.[97] And that the granting of Right of Residence to ECOWAS community citizens is not guaranteed — refusal is possible on public order, public security or public health grounds.[98] The Right of Establishment affords all community citizens the right to access economic activities and to hold employment, including pursuit of the liberal professions, throughout all ECOWAS member states, however, refusal is, again, possible on grounds of public order, public security or public health.[99]
[97] DFAT ECOWAS Report, at [3.3].
[98] DFAT ECOWAS Report, at [3.3].
[99] DFAT ECOWAS Report, at [3.3].
DFAT reports that Article 2(1) of the Protocol Relating to the Definition of a Community Citizen[100] (the Community Citizen Protocol) states that community citizenship can be lost on the following grounds: permanent settlement in a state outside the Community; voluntary acquisition of the nationality of a state outside the Community; a de facto acquisition of the nationality of a state outside the Community; loss of one's nationality of country of origin; and on express request.[101] Academic commentators have stated that the meaning of the Community Citizen Protocol, including the content of ECOWAS citizenship and the actions required of Member States, is, very hard to understand.[102] And highlighted that there is also a critical lack of definition of some aspects: for example, in section 2(1)(c), there is no explanation of what “de facto acquisition of the nationality of a State” might mean.[103]
[100] Protocol A/P.3/5/82 Relating to the Definition of Community Citizen.
[101] DFAT ECOWAS Report, at [3.11].
[102] UN High Commissioner for Refugees (UNHCR) International Organization for Migration (IOM), Bronwen Manby, Nationality, Migration and Statelessness in West Africa: A study for UNHCR and IOM, June 2015, at p83.
[103] UN High Commissioner for Refugees (UNHCR) International Organization for Migration (IOM), Bronwen Manby, Nationality, Migration and Statelessness in West Africa: A study for UNHCR and IOM, June 2015, at p84.
DFAT assesses the security situation remains unstable across many ECOWAS member states, which contributes to displacement and population movements.[104] DFAT assesses inequalities in development levels between ECOWAS member states and lack of opportunities to improve quality of life – coupled with political, social and economic instability – drive population mobility across and beyond the ECOWAS region in search of improved livelihood opportunities.[105]
[104] DFAT ECOWAS Report, at [2.12].
[105] DFAT ECOWAS Report, at [2.12].
DFAT reports that human rights observers report discrimination, marginalisation and abuse of women and girls is highly prevalent across the ECOWAS region, often grounded in cultural traditions and formalised by law.[106] FGM/C of women and girls, viewed as a traditional practice performed to promote chastity and increase a girl’s marriageability, is widespread in the ECOWAS region, particularly in Nigeria.[107]
[106] DFAT ECOWAS Report, at [2.16].
[107] DFAT ECOWAS Report, at [2.16].
DFAT reports that all ECOWAS member states have implemented the first phase of the ECOWAS framework for regional integration in relation to the Right of Entry.[108] And, in principle, this means community citizens in possession of valid travel documents and international health certificates can stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements (i.e. without a visa).[109]
[108] DFAT ECOWAS Report, at [3.14].
[109] DFAT ECOWAS Report, at [3.14].
DFAT assesses that while all member states have ratified the Free Movement Protocol, and gradual efforts to progress the ECOWAS protocols at the national level across member states are ongoing, implementation challenges persist.[110] And while there has been some success with adoption of the Right of Entry, only the first phase of the ECOWAS framework for regional integration (visa-free entry for 90 days) has been implemented by all member states.[111]
[110] DFAT ECOWAS Report, at [3.4].
[111] DFAT ECOWAS Report, at [3.4].
109. The Tribunal also finds based on the material before it that there is not real chance, being a risk that is “not remote or insubstantial”[228] or “not a far-fetched possibility”[229], that Applicant 1 would experience serious harm now or in the reasonably foreseeable future in Guinea for reasons relating to her opposition to Applicant 2 and Applicant 3 being subject to FGM/C or her opinions in opposition to FGM/C more generally, or for any other reason.
110. While the Tribunal accepts there is a more than remote risk that she would suffer face social pressure, stigmatisation and ostracism as a consequence of her opposition to Applicant 2 and Applicant 3 being subject to FGM/C, the Tribunal does not accept that in her particular circumstances not limited to her mental health conditions (that the Tribunal accepts would make her more psychologically vulnerable to harm) that harm would individually or cumulatively amount to serious harm for the purposes of s 5J(4)(b), or that she would face harm of any other kind.
111. Following this, the Tribunal finds on material before it there is not a real chance Applicant 1 would be persecuted on return to Guinea now or in the reasonably foreseeable future, and that their fear of persecution in Guinea is not well-founded.
Complementary protection criterion
[218] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.7, 20230120101354.
[219] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.3, 20230120101354.
[220] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.9, 20230120101354.
[221] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.8, 20230120101354.
[222] ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Doucet, MH, Delamou, A, Manet, H, and Groleau, D, Reproductive Health, Vol. 17, 2020, p.11, 20230120101354.
[223] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.
[224] As it applied to protection visa applications lodged prior to 16 December 2014: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014). This amendment commenced on 18 April 2015 and apply to protection visa applications made on or after 16 December 2014: table items 14 and 22 of s 2 and item 28 of sch 5 and Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation dated 16 April 2015 (F2015L00543).
[225] SZBQJ v Minister for Immigration and Citizenship [2005] FCA 143 at [11]; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 at [23].
[226] MZYPB vMinister for Immigration and Citizenship [2012] FMCA 226 at [13] (where the Court rejected the applicant’s argument that s 91R(2)(d) only required him to demonstrate a threat to his capacity to subsist).
[227] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd edition, 2014) at p182.
[228] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Toohey J at 406-7.
[229] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per McHugh J at 428-9.
Having concluded that Applicant 1 does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A) of the Act. Under this provision, a person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are individually defined in s 5(1).
114. As above, the Tribunal accepts there is a more than remote risk that Applicant 1 would face social pressure, stigmatisation and ostracism as a consequence of her opposition to Applicant 2 and Applicant 3 being subject to FGM/C. However, the Tribunal has found there is not real chance, or alternatively a real risk[230], she would face harm of any other kind now or in the reasonably foreseeable future in Guinea. Having regard to the exhaustive definition of significant harm in s 36(2A), The Tribunal finds harm of this kind would not individually or cumulatively amount to significant harm, including when having regard to her particular personal circumstances not limited to her mental health conditions (that the Tribunal accepts would make her more psychologically vulnerable to harm) and the individual definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act.
[230] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]. Special leave to appeal from this judgment was refused: Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323.
115. The Tribunal finds on the totality of the evidence before it there is not a real risk Applicant 1 would suffer significant harm as a necessary and foreseeable consequence of her removal to Guinea.
Member of the same family unit
116. The definition of ‘member of the same family unit’ in s 5(1) provides that one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) further provides that member of the family unit of a person has the meaning given by the Regulations. Regulation 1.12 in Part 1 of the Regulations prescribes that a person is a member of the family unit of another person (the ‘family head’), including if the person is a child of the family head (other than a child who is engaged to be married or has a spouse or de facto partner), and that person has not turned 18.
117. As above, provided to the Department were certified copies of the following:
a.A document purporting to be a birth certificate issued by the Guinean authorities in respect of Applicant 1 with English translation, recording them to have been born in Kankan, Guinea, on [Date].
b.A document purporting to be a birth certificate issued by the Guinean authorities in respect of Applicant 2 with English translation, recording them to have been born in Conakry, Guinea, on [Date].
c.An English translation of published reasons of a Guinean judicial officer for a court order in lieu of a birth certificate for Applicant 3 with English translation, recording them to have been born in Conakry, Guinea, on [Date].
d.The biodata page of a passport purporting to have been issued to Applicant 2 by the Guinean authorities in Conakry, Guinea, [in] 2018.
e.The biodata page and other selected pages of a passport purporting to have been issued to Applicant 3 by the Guinean authorities in Conakry, Guinea, [in] 2018.
f.The biodata page of a passport purporting to have been issued to Applicant 1 by the Guinean authorities [in] 2016.
118. On the basis of the material before it, the Tribunal finds that Applicant 1 is the biological mother of Applicant 2 and Applicant 3, and that Applicant 2 and Applicant 3 are both aged under 18.
119. Following the above, the Tribunal finds Applicant 1 is a member of the same family unit of both Applicant 2 and Applicant 3.
Concluding findings
120. For the reasons given above, the Tribunal is satisfied Applicant 2 and Applicant 3 are persons in respect of whom Australia has protection obligations and they both satisfy the criterion set out in s 36(2)(a).
121. The Tribunal is not satisfied that Applicant 1 is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that Applicant 1 is the parent of, and member of the same family unit as, Applicant 2 and Applicant 3 who are her children and aged under 18. Following this, it follows that Applicant 1 will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
122. The Tribunal remits the matter for reconsideration with the following directions:
a.Applicant 2 and Applicant 3 satisfy s 36(2)(a) of the Act; and
b.Applicant 1 satisfies s 36(2)(b)(i) of the Act on the basis of being a member of the same family unit as Applicant 2 and Applicant 3.
Gregory Hanson
MemberATTACHMENT - 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.
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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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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