2006445 (Refugee)

This matter concerned an appeal by a mother and her two teenage daughters, who are citizens of Guinea, against a decision of the Department of Immigration and Border Protection regarding their protection visa applications. The applicants claimed they feared persecution in Guinea due to the mother's concern that her daughters would be subjected to female genital mutilation (FGM) if they returned. The mother herself had undergone FGM at a young age and was facing pressure from her own mother and female relatives to ensure her daughters also underwent the practice. The applicants also raised concerns about the mother's mental health and the father's work travel.

The primary legal issue before the court was whether the applicants met the criteria for a protection visa, specifically whether they could establish a well-founded fear of persecution for a reason within the meaning of the *Migration Act 1958* (Cth). This involved determining if gender-based discrimination and violence, including FGM, constituted persecution, whether effective state protection was available in Guinea, and if the applicants had any non-compellable rights to enter and reside in another country that would preclude Australia from having protection obligations. The court also had to consider the country information regarding the prevalence and acceptance of FGM in Guinea, the medical and societal consequences of undergoing or refusing FGM, and the political, economic, and social instability in the region.

The court found that the country information indicated FGM was widespread and culturally accepted in Guinea, and that societal pressure to conform was significant. It also noted that effective state protection against FGM was not readily available. The court considered the applicants' claims of fear of persecution based on gender and the potential for serious harm, including severe physical and psychological consequences. The court also examined the limited practical availability of treaty rights to enter neighbouring countries and the general instability in the region. Ultimately, the court determined that the decision under review should be remitted for reconsideration.