2303555 (Refugee) - [2025] ARTA 698

2303555 (Refugee) [2025] ARTA 698 (28 January 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Marial Lewis
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2303555

Tribunal:Senior Member J Marquard
Date:28 January 2025

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 January 2025 at 1:25pm
CATCHWORDS
REFUGEE – protection visa – Iraq – religion – secular Shi’a Muslim – imputed political opinion – past Baath Party membership – expressed views against corruption – family of Communist Party member – fear of killing – Shia militias – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
AGA16 v MIBP [2018] FCA 628
Applicant A v MIEA (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton, (1996) 40 ALD 445
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66
Okere v Mima (1988) 87 FCR 112
Randhawa v MILGEA (1994) 52 FCR 437
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Suntharajah v MIMA [2001] FCA 1391
SZFZN v MIAC [2006] FMCA 1153
SZTOX v MIBP [2015] FCAFC 77
WAGH v MIMIA (2003) 131 FCR 269
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant has sought review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 23 February 2023 to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is [an age]-year-old citizen of Guinea.
She first arrived in Australia on a Visitor FA 600 visa [in] September 2016.
She applied for the protection visa, which is the subject of this review, on 19 December 2016. She claimed to fear returning to Guinea as she had spoken out against female genital mutilation (FGM) and had been assaulted and hounded by Fulani men.
By way of background, Guinea is located in West Africa, and is bordered by Guinea-Bissau, Senegal, Mali, Cote d’Ivoire, Liberia and Sierra Leone. There are four geographic regions, corresponding with the country’s major linguistic groups. There have been a number of coup d’états which have set back the path to stable and democratic governance.[1] There is a near universal prevalence of FGM.[2]
[1] Department of Foreign Affairs and Trade, ‘Guinea Country Brief’.
[2] Immigration and Refugee Board of Canada, ‘Guinea: The practice of female genital mutilation (FGM), particularly among the Peul [Pehuli, 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) [GN106039: FE], 8 January 2018.
On 23 February 2023 a delegate of the Department of Home Affairs (the Department) refused to grant the visa on the basis that the applicant’s claims were exaggerated and embellished.
The matter is now before this Administrative Review Tribunal for review.[3]
[3] The Tribunal has jurisdiction pursuant to Division 2 of Part 7 of the Migration Act 1958 (Cth).
The applicant lodged the application for review with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding commenced in the AAT but was not finalised before 14 October 2024, such as this one, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or in relation to the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal: item 24 of Part 5 of Schedule 2 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The applicant was represented in this review by Marial Lewis of Crossover Law Group.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[4] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[4] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[5] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[6] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[7]
[5] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[6] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[7] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[8] or
[8] Section 36(2)(a) of the Act
b.qualify for complementary protection (the complementary protection criterion);[9] or
[9] Section 36(2) (aa) of the Act.
c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[10]
[10] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J (1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J (3)) although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.
The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct. (s 5J (4)). Indicative examples of serious harm are set out in s 5J (5) of the Act.
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-5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has considered the application to the Department and supporting documents (including a statement dated 16 December 2016), Departmental migration records and new evidence to this Tribunal. The Tribunal has also considered the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department[11] , and independent sources about Guinea.
[11] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).
The applicant was invited to appear before the Tribunal on 23 October 2024 to give evidence and present arguments. At the request of the representative, this date was changed to 20 November 2024. The applicant was represented at the hearing by Marial Lewis from Crossover Law who was present at the hearing. An interpreter assisted the Tribunal. The applicant confirmed that she could understand the interpreter clearly and was satisfied with the standard of interpretation.
The applicant also provided evidence in written submissions dated 13 November 2024 and a psychologist’s report from [Health Service 1] dated 13 November 2024. She also provided extracts of articles and reports about Guinea.
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[12]
[12] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS OF THIS TRIBUNAL
The Tribunal has determined that the decision under review should be remitted for reconsideration.
The reasons for this are set out below.
Nationality
For the purposes of the refugee criterion, s 5H (1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J (1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2) (aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from Guinea, issued in 2016 and valid until 2021.
The Tribunal is satisfied on the basis of her passport and testimony that the applicant is a national of Guinea, and that Guinea is the receiving country for the purposes of the legislation.
Family and background
The Tribunal accepts the information provided by the applicant about her family and background. The evidence to the Department and Tribunal, and to the independent psychologist (see the psychologist’s report discussed later in this decision), has been generally consistent.
The applicant was born in [specified year] and raised in [Town 1] in Guinea. Her father passed away when she was about [age] years old, and her mother passed away in about 2022.
Her mother told her that her father worked as a shepherd and farmer. Her mother worked in the fields doing agricultural work.
The applicant has one [sibling] who has been living in [Country 1] since 1990. She has [specified family members] living in Guinea. [Specified siblings are] married with children.
When the applicant was growing up, they lived in a village located next to [Town 1]. She did not go to school and has only learnt to read and write since she has been in Australia. They lived in poverty and from a young age she worked selling rice and other grains.
The applicant said that [one] brother went to school but not her sisters. She told the Tribunal that she had to take care of her father. This was because he was ‘crying as her mother had to go out to work’ and he told her that there was no-one to take care of him, so she and her sister stayed home to take care of him.
The applicant has [number] children: [genders specified]. She told the Tribunal that she ‘needs help’ in order to see her children. She said that she has a heavy burden and ‘really wants to see her children’. She said that her mother passed away and she is still mourning her.
Her eldest daughter, who was born in [year], is in Australia. She came to Australia five years before the applicant did, with her husband, and is an Australian permanent resident.
The applicant’s other children live in [Town 2], Guinea, although one lives in [Country 2]. After she left Guinea, the eldest daughter looked after the other children. Her children are all studying. The applicant sends them money. Their father is not working. The applicant works in [Suburb 1] in [an agency].
The youngest daughter is around [age] years old. She is going to school.
The applicant’s eldest daughter helped her travel to Australia. The applicant until recently lived with her daughter, but she is planning to move out. The circumstances of her moving out and her daughter’s admission to a mental institution are discussed later in this decision.
The applicant speaks to her children in Guinea by telephone whenever they have reception or whenever there is electricity to charge their telephones.
Forced marriage
The Tribunal accepts the evidence provided that the applicant entered a forced marriage as a child. Her testimony was persuasive and accords with country sources discussed later.
The applicant married at the age of [age range] to a man who was fourteen years her senior, arranged by her parents. She said that this was the ‘normal course of practice’ in her village. She said that now the government has forbidden child marriage. She remembers that she ‘had to listen to her mother’.
At the time she married, her husband already had another wife and children. After she was married, she moved in with her husband and the first wife, and some of his other [family] lived there too. Her own family were in the village, but she moved to Kindia where her husband lived. She visited her family from time to time. It took about five to six hours to drive to see her family, depending on the roads at the time.
Ten years later her husband married another woman, who also had children.
After the applicant married, she sometimes worked as [an occupation 1]. Asked if she had other jobs prior to coming to Australia, she said that she sold rice and sometimes she went to [Country 3] to buy clothes and sell them.
When she came to Australia she was on good terms with her husband. She said that she had no choice. He had many wives and children and was only focused on the last wife he had. She is in contact with him occasionally.
The applicant spoke in a resigned fashion about the circumstances of her marriage, explaining it was part of their culture. The Tribunal accepts the applicant’s testimony as it accords with country sources. Guinea has one of the highest rates of child marriage in the world.[13]
[13] World Bank, ‘Priority for Guinea: Improving the status of Women and Girls’, 9 May 2023.
Mental health
A report from [Health Service 1] dated 13 November 2024 states that the applicant saw a psychologist for 13 sessions in 2024. According to the report, the applicant presented with symptoms of major depressive disorder (chronic) and generalised anxiety.
The Tribunal asked the applicant about her mental health issues and how she was feeling on the day of the hearing. She said that she was ‘concerned and afraid’.
The Tribunal accepts the information in the medical report about the applicant’s mental health conditions. The psychologist saw the applicant for 13 sessions and has provided a detailed report.
Given the medical report and the applicant’s background, the Tribunal took a trauma-informed approach to the hearing.[14]
[14] Equality before the Law Benchbook, <Section 12 - Trauma-informed courts> - approach includes providing information on process and non-invasive questioning.
Claims about female genital mutilation (FGM)
The Tribunal has considered whether the applicant underwent FGM and campaigned against FGM which led to assaults and harassment by the Fulani, as claimed in her application.
Being subject to FGM
The Tribunal is satisfied that the applicant underwent FGM when she was a young girl, based on her testimony about the traditional values in her village, country sources and her recollections of the pain and suffering.
The Tribunal is satisfied that the applicant grew up in a village with traditional patriarchal values, and in this environment, it is reasonable to assume that she was forced to undergo the FGM procedure. The applicant is a member of the Fulani tribe. She said in her statement accompanying her application that the Fulani are traditional pastoralists, and they are focused on keeping large herds of cattle that signify wealth and power. She said that the strength of a man is measured by the number of cows he has and the number of wives and children he has.
The applicant also claimed that she did not have the chance to go to school and was ‘basically raised up for the purpose of being married off, as dictated by the culture of the Fulani people’. The applicant has said that she was circumcised, and so were all the women in her family.
Independent information confirms that in Guinea, 97 percent of women and girls aged 15 to 49 have undergone some form of FGM.[15] Guinea has one of the highest rates of child marriage in the world.[16] These reports support her claims. She told the Tribunal that despite many years of trying to prevent her [youngest] daughter from being circumcised, she found out that the procedure had been conducted on her, demonstrating the prevalence in her community.
[15] United Nations Population Fund, ‘Female Genital Mutilation Dashboard (FGM) – Guinea’,
[16] World Bank, ‘Priority for Guinea: Improving the status of Women and Girls’, 9 May 2023.
The applicant was also able to recall the pain and suffering of the procedure. She said that on the day it happened she had gone to help her eldest sister babysit her [children] in Kindia. On that day she was ‘handed’ to an elder woman who took her to have the procedure. She was about [age] years old at the time. (In her statement she said that she was [age]. The Tribunal gives no weight to this discrepancy, given the passage of time and her lack of education).
The applicant recalled that she had ‘horrible pain’ for two years and that she’ lost her childhood as a result of the pain’, and this was in order to prepare her for early marriage when she turned 13. She said that she lost a lot of blood and passed out several times.

The Tribunal is satisfied based on her persuasive recollections of the trauma of the procedure, values in her village, as well as the independent sources about the prevalence of FGM in Guinea, that the applicant was subject to FGM as a child.
Speaking out against FGM
The Tribunal is also satisfied that the applicant spoke out against FGM, which resulted in attacks from the community. The reasons for this are as follows.
Firstly, she is clearly sad and angry that women in Guinea are forced to undergo FGM. She has been motivated by the trauma she experienced, which has been described above. She also described to the psychologist the trauma of being circumcised as a young girl by an old woman in the village with a knife, describing the loss of blood and how she was very sick. She discussed persuasively how her suffering led to a realisation that she should speak out.
Secondly, she is the mother of [number] daughters who were forced to undergo FGM, and this has caused her significant distress. She said that [number] of her daughters were ‘handed by her elder sister and her husband’s elder sister’ to the women who conducted the procedure. She said that she was not consulted. She said that the girls were away for about a week as they were kept at a special place to heal. She said that knowing her daughters were forced into circumcision made her ‘suffer a lot’ and seeing the pain they have gone through had been the most traumatic experience of her life.
Thirdly, while one may question why she did not stop the women from taking her daughters for circumcision if she was opposed, the Tribunal accepts that in her community it was difficult for women to prevent circumcision. As referred to earlier, in Guinea, 97 percent of women and girls have undergone some form of FGM.[17] She lived in a traditional village. When asked if she could have tried to stop the sisters from taking her daughters, she said that ‘back home even if you do not agree you cannot express yourself, and even if you do, it could go wrong’. Her descriptions about the traditional, patriarchal values in her village suggest that it would have been difficult to prevent her daughters from undergoing the procedures.
[17] United Nations Population Fund, ‘Female Genital Mutilation Dashboard (FGM) – Guinea’,
Fourthly, she has been able to explain why she decided to express her opposition to FGM and how they went about it. She told the Tribunal that ‘later, when the government decided to disagree and I realised circumcision was not required by religion, I realised girls were suffering for nothing’. She said that in the end she decided that she had the right to have a voice. She said that about seven friends decided to speak out because they knew it ‘was not good’. They talked to other women about it, even though they encountered hostility. The applicant told the Tribunal that they had meetings in the village organised by her and a friend. There was an organisation where ‘everyone put in money’ and ‘every two weeks they would take the money’. The aim of the organisation was the prevention of FGM. They met in the market and set a date. When they held a meeting, they then invited other women to come. She said there would be more than 10 women and they would take advantage of this and talk.
She said that she decided to speak out before her youngest was circumcised to try and stop it from happening. She said in her statement accompanying her application that the last circumcision was to be conducted on her three-year-old. She said that ‘this was the most painful thing that would strike my heart’. She said that on [a day in] December 2016 she had to stand for her daughter and other young children and say no to FGM. She said that she managed to speak to many mothers, and they all agreed to stand strong to the word ‘no’. She later clarified that the date of this circumcision was December 2015 not December 2016.
She told the Tribunal that she spoke out every time they tried to forcibly circumcise her daughter. She said that for six years they asked her when her daughter would be circumcised, and she refused to let her go. This was persuasive evidence as it is understandable that a mother would want to prevent her daughter suffering harm once she felt that she could have a say.
Fifthly, she was able to articulate how other Guineans also came to the realisation that FGM was morally wrong. She said that her younger sisters ‘started to understand’. They heard about how women had gone to Europe and sought reparations. She said that her husband, although he said that the matter concerned women and not men, acknowledged that if not required by the religion, FGM should cease. She said that many people in the village of [Town 1 variant] were beginning to ‘say no to FGM’ but this landed the women in trouble.
For all these reasons, the Tribunal is satisfied that the applicant spoke out against the practice of FGM in her community, along with other women.
Attacks by members of the community
The applicant made claims in her application and at the hearing that she was attacked by members of her community for speaking out against FGM. She also provided documents to the Department, which she said had been obtained by her daughter in Australia. At the Tribunal hearing she said that she only learnt to read in Australia and is very forgetful, and her daughter prepared her application.
The evidence, while consistent in parts, was inconsistent in other aspects. The Tribunal should not accept evidence uncritically (Randhawa v MILGEA (1994) 52 FCR 437) and the inconsistencies caused the Tribunal to question whether the attacks took place.
Notwithstanding the conflicting evidence, the Tribunal accepts the applicant’s evidence that she was attacked by members of her community. The inconsistencies are described below, along with the reasons the Tribunal has accepted that the applicant was attacked.
She said in her statement accompanying her application that on the evening of [a day in] February 2016, a group of five men stormed her house and forcefully grabbed her out of the home. Her family pleaded for her, but the men were too strong and said that she had been caught indoctrinating the women against cultural practices. She was paraded on the village square about 1 km from her house. She was forced to face a court of elders. She told them that she was standing for innocent women and children, and she called on them to refrain from FGM. She said that she could barely complete what she wanted to say, and they dragged her into a hut and lashed her with [rope] on her body. That night she was meant to be killed. Early in the morning she managed to sneak out and used a bush track to walk to her sister about 7 kms away. Her sister managed to hide her for two weeks. She then went to services for help.
Her evidence to the Tribunal about the incidents of harm was different. She told the Tribunal at the hearing that members of the community ‘attacked them and beat them down’. She said that this happened to her twice.
On the first occasion, members of the community came to her house at night-time and asked her why she was speaking out against FGM, which they told her had been part of their culture for a long time. She said that they beat her, and she fought back. She said that the elders ‘settled them down’ after speaking to them. She said that she could not remember the date or how many people came to the house.
She told the Tribunal at the hearing, that on the second occasion, members of the community came to her house and told her she was telling lies and FGM was going to ‘keep happening’. She said that this time the elders did not intervene, and they ended up reporting the matter to the police. The police called the perpetrators and asked them why they beat them.
She told the Tribunal that on other occasions they were threatened as well.
She was asked at the Tribunal hearing if there was an incident which led to her deciding to leave the country. She said that after she came to Australia, people from her village called her and told her that one of the women who had spoken out against FGM had been killed. She was asked why she went to Canakry. She said that the principal reason that she went there was for schools as she heard schools were better. She said when she was in Canakry some members of the community came and threatened her and this led to her leaving the country. She decided to go to Australia when they came to Canakry to threaten her, and as her daughter had applied for a visa for her to visit.
The Tribunal asked the applicant why her evidence to the Department about the harm she suffered was different to the information provided to the Tribunal. For example, she did not mention to the Tribunal that she had been paraded before elders, or that she was then taken to a hut and lashed with a [rope], and that she was meant to be killed, but she escaped on a bush track and went to her sister’s place. The Tribunal explained that these discrepancies caused the Tribunal to question whether the incidents of harm took place at all. She answered that she fought with the men, and the community members beat her down, and they used a [rope], which she had forgotten to mention.
The Tribunal asked her why she had not told the Tribunal that she was paraded outside and faced a court of elders. She said that she had told the Tribunal that elders had ‘settled the issue’ which she said meant that she had faced elders, which she had earlier described as being paraded.
She was asked why she did not say she snuck out on a bush track and hid there. She said that it did happen. She said that at the time she was afraid they would hurt her again and she escaped.
After considering all this evidence, including the inconsistent aspects, the Tribunal has on balance accepted that the applicant was beaten by community members for speaking out against FGM. The reasons for this follow.
Firstly, the Tribunal has accepted that the applicant suffered greatly when she underwent FGM and was deeply distressed when [number] of her daughters were forced into FGM. The Tribunal accepts that this motivated her and others to speak out against FGM despite FGM being prevalent and ingrained in the community.
Secondly, the Tribunal notes that although her evidence about the incidents of harm has been inconsistent, she has repeatedly said that on one occasion she was beaten up in her home. The Tribunal accepts that this took place. Further, she did tell a third party, the psychologist, about being ‘severely beaten up by a group of people in her community who supported female circumcision’ in 2016. The psychologist noted in her report that this information only came to light ‘as sessions proceeded’. She also told the psychologist that she was opposed to FGM and expressed her views openly together with her close friend in her community which led to her being beaten with wooden sticks and requiring medical attention. She also told the psychologist that she reported it to the police. The Tribunal accepts that there was an incident in her home in which she was beaten up, given that she has repeated this evidence to an independent source. The Tribunal also accepts that she was taken before elders. Although she did not mention this to the Tribunal until prompted, she did say that elders ‘settled’ the issue, indicating that elders were involved. The Tribunal accepts that she did escape on a bush track. Although she did not say this spontaneously to the Tribunal, when prompted she said it did happen. The Tribunal notes that the applicant has very little education and this is certain to have impacted on the way she presented her evidence. Her evidence was guarded, and she responded with very limited and disorganised content, which can sometimes be an indicator of psychological vulnerability.[18]
[18] United Nations High Commission for Refugees, ‘Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process’, November 2017.
Thirdly, the Tribunal has taken into consideration not only the lack of education of the applicant (including illiteracy when she first arrived in Australia) but other factors which may have impacted on her presentation of evidence.
In submissions to the Tribunal, reference was made to the decision of the former AAT in 2013426 (Refugee) [2024] AATA 2410 (13 February 2024) at [93] and the credibility principles enunciated in that decision. The Tribunal accepts, as set out in that decision, that in assessing credibility the Tribunal should be mindful of the special considerations which impact on asylum seekers[19]. As referred to in that decision, research has concluded that memory is not fixed, that it is selective and fragmentary,[20] and it may be impaired by emotion, and affected by information a person receives after encoding an event.[21]
[19] Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76.
[20] Prof U Ecker, ‘Memory: Misconceptions, University of Western Australia, Australian Academy of Law, ‘Memory, Misconceptions, Mechanisms, Fallibility’.
[21] Prof U Ecker, ‘Memory: Misconceptions, University of Western Australia, Australian Academy of Law, ‘Memory, Misconceptions, Mechanisms, Fallibility’.
The Tribunal is mindful of the many traumatic experiences this applicant has undergone and the fact that the migration process creates uncertainties which also may impact on her presentation of evidence. The Tribunal notes that the report from the psychologist indicates that she has anxiety and depression. The UNHCR Guidance on Vulnerable Applicants states that there can be variations in details of a narrative, as memory is reconstructive. Memories for traumatic events have been shown to have wider variation over time, than recollection of significant non-traumatic events. Some aspects may be suppressed and subsequently retrieved, and sequence may be forgotten.[22] A want of detail where detailed knowledge may be expected may have psychological explanations. For example. severe depression can cause a tendency to recall events in general terms only, with an associated poverty of specific contextual information that one might expect to be present.[23]
[22] United Nations High Commission for Refugees, ‘Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process’, November 2017.
[23] United Nations High Commission for Refugees, ‘Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process’, November 2017.
The Tribunal is conscious that decision-makers have unreasonable expectations of memory, and that inconsistencies in testimony should not be used ‘mechanically’.[24] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[25] Madeline Holland in a paper on Narrative and Credibility in the United States’ Political Asylum Applications argues that the stories of asylum seekers are evaluated for their truthfulness ‘on the basis of criteria that align with Western literary standards of veracity’. That is, ‘Western literary standards shape our understanding of what a “true story” should sound like’.[26]
[24] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511,< Hunter Dowd, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
[26] M Holland, ‘Stories for Asylum: Narrative and Credibility in the United States’ Political Asylum Application’, Refuge: Canada’s Journal on Refugees, 10 December 2018.

The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. The Tribunal has considered the evidence in its entirety and not in isolated parts, an approach supported in a number of cases including Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997).

Furthermore, in Guo Wei Rong and Pan Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[27] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ There may for example, be instances where applicants have lied or exaggerated about one aspect of the evidence.

[27](1996) 40 ALD 445

A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

In this case, the applicant’s daughter prepared her application. The Tribunal is unable to take evidence from the daughter, for reasons discussed later, but it is possible that aspects of the application were embellished. The Tribunal does not accept that the applicant was attacked on the way to Canakry or that her sister hid her for two weeks. When asked why she went to Canakry by the Tribunal she said that she went to find better schools. She did not mention being in hiding. She has also not given direct evidence about an attack in a vehicle. This evidence was contained in a document, which has been disregarded, discussed further below. The Tribunal has taken into consideration in assessment of her evidence the traumas the applicant has experienced, the uncertainty of her visa application, her mental health issues and the fact that she experienced domestic violence a few days prior to the Tribunal hearing. The Tribunal accepts her evidence that she was attacked in her home for standing up against FGM, notwithstanding that not all aspects of her evidence have been accepted.

Thirdly, as mentioned, the Tribunal accepts that the police documents were obtained by the applicant’s daughter. The Tribunal is unable to find out how and why she obtained these documents, and therefore the Tribunal has disregarded these documents, notwithstanding they contain some information which supports the applicant’s claims, and some information which is inconsistent, and therefore undermines her claims. This is explained below.

The first document provided by the applicant was headed ‘Convocation’ for the purpose of a police investigation naming the applicant inviting her to go to the [named] Police Station of [Town 1] on [a day in] March 2016. The Convocation was issued by the [Official A] of [Town 1].

The second document provided by the applicant to the Department was a ‘Protection Notice’ from the [Official A] of [Town 1] dated [in] March 2016. The Notice stated:

‘..the [Official A] of [Town 1] requests that all persons of good faith lend assistance to the (applicant)..
(The applicant) is a very well-known person in the District of [District 1] and is also known in her capacity as a female leader in the [named] community.
On the night of [a day in] March 2016 (the applicant) was the victim of an attack perpetrated by persons unknown wearing balaclavas as her family were travelling to the neighbouring village.
(the applicant) was accused by the community of promoting the abolition of female gential mutilation. She suffered bodily harm and physical mistreatment..
The community is attached to this practice and it is ready to tolerate everything escept the degradation of culture. .
We are concerned with (The applicant) situation as her safety is threatened.’

At the Tribunal hearing the applicant was asked why this document referred to a different set of circumstances and date, than that described by her in her application. Specifically in her application she said that she was targeted on the evening of [a day in] February 2016, but the document refers to [the day in] March 2016.

100. Furthermore, as referred to earlier in this decision, in the application she said that a group of five men stormed her house and forcefully grabbed her out of the home and paraded her on the village square where she was forced to face a court of elders. She said that she told the elders that she was standing for innocent women and children, and she called on them to refrain from FGM. She said that she could barely complete what she wanted to say, and they dragged her into a hut and lashed her with [rope] on her body. That night she was meant to be killed, however, early in the morning she managed to sneak out and used a bush track to walk to her sister about 7 kms away. Her sister managed to hide her for two weeks. She then went to services for help.
101. In this protection notice by contrast, it was reported the incident took place as her family were travelling to a neighbouring village (not in her house) in March 2016. In her oral evidence to the Tribunal, she also said that she was attacked in her house.
102. She was asked at the Tribunal hearing why the police description was different to that in the application. She responded that she does not know about it, and she did not go to school. It was submitted that her daughter had submitted these documents. The Tribunal asked for a statement of the daughter to be provided.
103. On 9 December 2024 the applicant’s representative provided submissions. She noted that the applicant had said at the Tribunal hearing that she was moving out of her daughter’s house. She said that following the hearing, the applicant had reluctantly shared information with her, that there was a domestic violence incident with her daughter, and her daughter had asked her to move out. Police were involved, her daughter was taken to the mental health ward at [Hospital 1], and she was given emergency accommodation. An Apprehended Domestic Violence Order was issued on [a day in] November 2024 for a period of two years, which includes not approaching the applicant or contacting her in any way. A copy was provided to the Tribunal. A letter from [Agency 1] dated 9 December 2024 reported that the applicant had recently asked for help finding short term accommodation, due to the AVO.
104. A support letter was provided from a Domestic Violence Specialist Worker at [Agency 2]. She said that the applicant engaged with their services after they received a referral from NSW Police. Police had applied for an Apprehended Violence Order to protect the applicant from her daughter. On [a day in] November 2024 the daughter was transferred to a mental health ward at [Hospital 1]. The applicant wished to vary the conditions of the order to permit her to visit her daughter.
105. It was claimed that for these reasons the applicant was unable to provide a statement from the daughter in relation to the documents. The Tribunal accepts that she cannot get a statement from her daughter in light of her evidence and the corroborative material.
106. The representative submitted that there were two incidents of harm. One took place in February 2016 when men came to the applicant’s house, and another took place in March 2016 when the applicant was travelling to another village.
107. The Tribunal accepts that there was an incident of harm in the applicant’s house, as discussed earlier, but has disregarded the evidence of the harm while travelling to another village, as the applicant has not provided this evidence directly and has been unable to provide a statement from her daughter.
Contacts with NGO and photographs
108. The applicant also provided a copy of a letter from [Agency 3] (translation, ‘[name]’) dated 12 March 2016. The document stated:
We are concerned by the situation of women in most of our Fula communities in the villages of [District 1] and [Village 1] where untold suffering is inflicted on women because of our customary practices. These practices not only harm the women but they are a gross violation of the basic rights of these women and affect their normal biological functions in our normal societies. (The applicant) was attacked by unknown assailants because of her activities to raise awareness for women about the dangers associated with female genital mutilation to which many young women are exposed.. currently (The applicant) is afraid to return to her village of [District 1] where she lived and grew up’.

109. She told the Department that she had not approached any NGO. This caused the delegate of the Department to question the authenticity of the [Agency 3] document. She was asked about this by the Tribunal, and she said that she had approached them, but right at the time she was departing. She told the Tribunal that [Agency 3] do not agree with FGM. She said that she had wanted them to support them, so her friend had spoken to them.
110. The Tribunal disregards the letter from [Agency 3] for the reasons set out earlier. The Tribunal accepts that her friend approached [Agency 3], as this was evidence adduced at the Tribunal hearing.
111. The applicant also provided some photographs. Without the evidence of the daughter to explain these photographs, they have not been given any weight.
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
112. 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.[28]
[28] Section 5H (1) of the Act.
113. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
114. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for one of the stated reasons?
115. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A (2) of the Convention.
116. The Tribunal is satisfied that the applicant fears being persecuted for reasons of her membership of particular social group of women (discussed further below). She expressed this fear in her hearing with the Tribunal and clearly fears being attacked again, as she has suffered harm in the past and fears similar harm in the future.
Is the persecution for one of the reasons set out in the legislation?
117. The persecution feared must be for one or more of the reasons mentioned in s.5J(1)(a) of the Act. These reasons are race, religion, nationality, membership of a particular social group or political opinion.
Is the applicant a member of a particular social group?
118. Section 5L of the Act defines ‘particular social group’ as follows:
..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.

119. The Tribunal is satisfied that the applicant is a member of a particular social group of women, as there is a characteristic shared by each member (gender), including the applicant, and the characteristic is an innate or immutable characteristic which also distinguishes her from society.
120. The Tribunal is satisfied that membership of a particular social group is the essential and significant reason for the persecution[29]. In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. In determining the reasons for the harm feared, the courts have held that in matters involving individual animosity, underlying reasons must be considered.[30] In SZFZN v MIAC[31] the Court found that the Tribunal was in error when it did not look for the underlying reason for harm feared by a homosexual applicant from his father. The court accepted counsel’s submissions that:
… the Tribunal must have overlooked or misunderstood that, on the proper understanding of the Convention definition, an underlying reason for an incident of persecution could provide the Convention characterisation of its “reason”. The Tribunal must have thought that it was enough to characterise the immediate objective of the person who initiated the persecution, without taking into consideration the cause of his conduct.
[29] Section 5J (4) of the Act.
[30] See e.g., Okere v Mima (1988) 87 FCR 112.
[31] SZFZN v MIAC [2006] FMCA 1153.

121. Independent information about Guinea suggests that the society is strongly patriarchal with various practices in place which subordinate women, including forced child marriage. One report states that ‘religious and customary marriages take place in an attempt to ensure that a girl is married before there is any risk of pregnancy’.[32] Freedom House reports that although women have full political rights under the law, gender bias limits participation in practice. Freedom House reports that ‘women face pervasive societal discrimination and disadvantages in the traditional justice systems.’[33] In one academic article, the main reasons cited for supporting FGM include ‘respect for the custom handed down by their ancestors and controlling women's sexuality—before and during marriage—to favor the marriageability of girls and preserve family honour’.[34]
[32] Bransky, R, Enoch, J and Long C, “Child marriage in Sierra Leone and Guinea’, Purposeful Productions’ 30 August 2017.
[33] Freedom House, ‘Freedom in the World 2024’, < Guinea: Freedom in the World 2024 Country Report | Freedom House>.
[34] Doucet, MH, Delamou, A, Manet, H, and Groleau, D, ‘Beyond the Sociocultural Rhetoric: Female Genital Mutilation, Cultural Values and the Symbolic Capital (Honor) of Women and Their Family in Conakry, Guinea—A Focused Ethnography Among “Positive Deviants”’, Sexuality & Culture, Vol. 26, 11 May 2022.
122. The applicant also mentioned that girls were treated differently to boys when she was growing up. Girls were often unable to go to school while boys did attend. This was the case in her family. She said that girls were required to do housework, but boys were not. She also was unable to go to a doctor when needed, taking roots or leaves instead. She said that she was ‘basically raised up for the purpose of being married off as dictated by the culture of the Fulani people’.
123. The Tribunal is satisfied that the harm she will face – possible assault and other types of physical and mental ill-treatment, would be for the reasons of her membership of a particular social group of women, as the reason for the harm would be as a woman challenging the dominant patriarchal structures of FGM.
Is there a real chance of serious harm if the applicant were to return to Guinea?
124. The Tribunal has considered next whether there is a real chance that if the applicant returns to Guinea in the reasonably foreseeable future she would be persecuted. Section 5J(4)(b) of the Act provides that the persecution must involve serious harm. The Tribunal must assess whether there is a real chance of serious harm in the reasonably foreseeable future.[35]
[35] Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.
125. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b) of the Act, provides an objective element to that concept,[36] - not only must a person fear persecution, but there must also be a prospect of that fear being realised.
[36] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, < The concept of ‘real chance’, as relevant to the assessment of well- fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[37]
[37] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
127. The applicant claimed in her application that if she returns to Guinea she will be picked up by the Fulani, subjected to torture and killed. At the Tribunal hearing she again said that she is afraid to return as she fears for her life by those who do not agree with her viewpoints on FGM. She claimed that many of the women she inspired to resist FGM have disappeared. She said that while she was in Guinea one of the woman died from torture inflicted on her.
128. She said that she can be identified as Fulah wherever she goes. She said that everyone identifies with their own culture. She said that members of the Fulani are bitter and want to eliminate her.
129. The Tribunal accepts that the applicant would be identified as Fulah and would again speak out against FGM if she returns to Guinea, as she claims. It was clear from her evidence to the Tribunal that she feels passionately about the cause of eliminating FGM and that she would continue to advocate for this if she returned. She told the Tribunal at hearing that if she returned to Guinea, she would join organisations that oppose FGM, and the Tribunal accepts this evidence.
130. Those who oppose FGM face ostracism, social pressure and stigmatisation[38] but the Tribunal was unable to locate reports of violence against those who oppose FGM.[39] The Canadian Immigration and Refugee Board in 2016 cites a French-language report by the UN Office of the High Commissioner for Human Rights (OHCHR). The report states that, according to young Guineans interviewed about FGM, 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 (UN Apr. 2016, 19). According to the same source, [translation] “in every Guinean community, to say that a woman is not excised is dishonourable and a grave insult”. [40]
[38] 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) [GIN106039.FE]’, 8 January 2018; Doucet, MH, Delamou, A, Manet, H, and Groleau, D, ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Reproductive Health, Vol. 17, 2020, p.7; Reproductive Health, ‘Involving the health sector in the prevention and care of female genital mutilation: results from formative research in Guinea’, Vol. 19, 8 July 2022.
[39] Searches were conducted of CISNET, the European Country of Origin Information Network (ECOI), Refworld, and general internet searches in English.
[40] 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) [GIN106039.FE]’, 8 January 2018.
131. A 2020 article published in the Reproductive Health journal, presents a study investigating the treatment of people who oppose FGM in Guinea. 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.[41]
[41]Doucet, MH, Delamou, A, Manet, H, and Groleau, D, ‘Beyond wll: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Reproductive Health, Vol. 17, 2020.
132. The report states that families who ‘do not conceal their status, but do not advertise their decision either.. remain relatively invisible to the rest of the population’. [42] However, some respondents in the study stated that once it was known that their daughters were not going to undergo FGM, 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’. [43]
[42] Doucet, MH, Delamou, A, Manet, H, and Groleau, D, ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Reproductive Health, Vol. 17, 2020.
[43] D, Doucet, MH, Delamou, A, Manet, H, and Groleau, ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Reproductive Health, Vol. 17, 2020.
133. Notwithstanding that these reports refer to ostracism and exclusion as the outcome of protesting against FGM, the Tribunal accepts that there is a real chance of serious harm, which could include physical harm or serious psychological harm for reasons of her membership of the particular social group of women.
134. As referred to earlier, there is almost universal prevalence of FGM in Guinea, so it is likely that it is culturally entrenched. In the applicant’s community, when she spoke out against it, she was attacked by members of the community, so there is a real chance this could happen again. The 2020 study referred to a social environment that was ‘highly hostile’ to those who oppose FGM.
135. FGM is illegal in Guinea.[44] Penalties can amount to between three months and life imprisonment or the death penalty.[45] However these provisions are not effectively or regularly enforced.[46] In fact, there is a near universal prevalence of FGM,[47] and a high support for FGM in the population.[48] It is practiced among all ethnic groups with the highest being in the Peul (Fulani), which is the applicant’s group, and Malinke.[49]

[44] ‘Immigration and Refugee Board of Canada, ‘Guinea: The practice of female genital mutilation (FGM), particularly among the Peul [Pehuli, 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) [GN106039: FE]; US Department of State, 'Country Reports on Human Rights Practices for 2021 - Guinea', 12 April 2022, pp.24-25; 28 Too Many, ‘FGM in Guinea: Short Report’, September 2021.
[45] US Department of State, 'Country Reports on Human Rights Practices for 2021 - Guinea', 12 April 2022, pp.24- 25.
[46] US Department of State, 'Country Reports on Human Rights Practices for 2021 - Guinea', 12 April 2022, pp.24- 25.
[47] Immigration and Refugee Board of Canada, ‘Guinea: The practice of female genital mutilation (FGM), particularly among the Peul [Pehuli, 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) [GN106039: FE]; 8 January 2018.
[48] 28 Too Many, ‘FGM in Guinea: Short Report’, September 2021; D, Doucet, MH, Delamou, A, Manet, H, and Groleau, ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Reproductive Health, Vol. 17, 2020; United Nations Children’s Fund (UNICEF), ‘Majority of men and women oppose Female Genital Mutilation in countries w here practice persists: UNICEF figures’, 14 July 2016.
[49] D, Doucet, MH, Delamou, A, Manet, H, and Groleau, ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Reproductive Health, Vol. 17, 2020; 28 Too Many, ‘FGM in Guinea: Short Report’, September 2021 p.2.
136. According to various articles, excision practitioners are rarely subject to legal proceedings and no medical practitioners are sanctioned. FGM occurs with the full knowledge of judicial personnel including prosecutors and instructing magistrates.[50] There has been increasing involvement of the medical profession.[51] This is seen to give legitimacy to the practice.[52]
[50] Institut national de la statistique report quoted in United Nations Human Rights Office of the High Commissioner, ‘Female Genital Mutilation in Guinea on the rise – Zeid’, 25 April 2016.
[51] UNICEF, ‘Fight against FGM In Boke, Conakry and Kindia’, 13 September 2023.
[52] Reproductive Health, ‘Involving the health sector in the prevention and care of female genital mutilation: results from formative research in Guinea’, 8 July 2022.
137. According to a 2021 report by 28 Too Many,[53]almost two-thirds of the population believe FGM should continue:
Overall, 65.4% of women and 59.6% of men aged 15–49 who have heard of FGM believe that the practice should be continued. Support for the continuation of FGM is highest in rural areas and among those with low er levels of education. 55.8% of women and 64.3% of men believe that FGM is a requirement of their religion.[54]
[53] 28 Too Many is a UK-based charity advocating the abolition of FGM in Africa and worldwide. See: ww.28toomany.org/about-us/
[54] 28 Too Many, ‘FGM in Guinea: Short Report’, September 2021.

138. Other reports similarly indicate a low level of opposition to FGM. An article published in the Sexuality and Culture journal in 2022 cites 37 per cent of Guinean women having the opinion that FGM should end.[55] UNICEF reported in 2016 that 38 per cent of men and boys and 21 per cent of women and girls are against FGM in Guinea. [56] Many Guineans believe that promoting abandonment of FGM is a Western plot to eradicate Guinean culture.[57]
[55] Doucet, MH, Delamou, A, Manet, H, and Groleau, D, ‘Beyond the Sociocultural Rhetoric: Female Genital Mutilation, Cultural Values and the Symbolic Capital (Honor) of Women and Their Family in Conakry, Guinea—A Focused Ethnography Among “Positive Deviants”’, Sexuality & Culture, Vol. 26, 11 May 2022.
[56] United Nations Children’s Fund (UNICEF), ‘Majority of men and women oppose Female Genital Mutilation in countries where practice persists: UNICEF figures’, 14 July 2016.
[57] Doucet, MH, Delamou, A, Manet, H, and Groleau, D, ‘Beyond the Sociocultural Rhetoric: Female Genital Mutilation, Cultural Values and the Symbolic Capital (Honor) of Women and Their Family in Conakry, Guinea—A Focused Ethnography Among “Positive Deviants”’, Sexuality & Culture, Vol. 26, 11 May 2022.
139. A 2022 article published in the Reproductive Health journal reported that community members feel social pressure from elders and other family members and fear repercussions if their daughter failed to follow the family tradition prior to getting married. The report found that health care providers also felt pressure to maintain the tradition. ‘We found that girls who had not undergone the practice of FGM and their respective families were stigmatized by the community for non-conformity to this social norm’.[58] The article further noted that ‘girls who had not undergone FGM were not allowed to participate in village activities’. [59]
[58] Reproductive Health, Vol 19, 8, ‘Involving the health sector in the prevention and care of female genital mutilation: results from formative research in Guinea’, July 2022.
[59] Doucet, MH, Delamou, A, Manet, H, and Groleau, D, ‘Beyond will: the empowerment conditions needed to abandon female genital mutilation in Conakry (Guinea), a focused ethnography’, Reproductive Health, Vol. 17, 2020.
140. A study by the Institut national de la statisque found that non-excision is considered dishonourable and girls fear being excluded or forced to remain unmarried.[60]
[60] Institut national de la statistique report quoted in United Nations Human Rights Office of the High Commissioner, ‘Female Genital Mutilation in Guinea on the rise – Zeid’, 25 April 2016.
141. According to Freedom House, the current regime brutally represses protestors and the interim government in place rules through violence and intimidation.[61] Currently, protests are banned.[62] There is also rampant crime.[63] According to a 2016 UN report, ‘women in Guinea are subject to various forms of violence, discrimination, and injustice due to persistent socio-cultural biases. Forced and early marriages, domestic violence, and sexual violence are the most recurrent forms of violence against girls and women in the country. Other forms of discrimination occur in access to education, means of production, credit, and decision-making positions in public administration and private enterprise.’[64] Despite some legislative changes since then, reform remains weak because of ‘lack of institutional mechanisms, functional operational tools and the lack of awareness and involvement of the population’.[65]
[61] Freedom House, ‘Freedom in the World 2024’, < Guinea: Freedom in the World 2024 Country Report | Freedom House>.
[62] Amnesty International. ‘The State of the World’s Human Rights’, Guinea, 2023.
[63] Freedom House, ‘Freedom in the World 2024’, < Guinea: Freedom in the World 2024 Country Report | Freedom House>.
[64] UN Office of the High Commissioner for Human rights, ‘Report on human rights and the practice of female genital mutilation and excision in Guinea’, April 2015.
[65] Feminist generations in West Africa, ‘Activists share their views and make recommendations for the Generation Equality Forum’ in Amnesty International, ‘Guinea: shame must change sides: ensuring rights and justice for victims of sexual violence in Guinea’, 27 September 2022.
142. One of the main barriers to ending violence against women is gender-based discrimination and patriarchal prejudices against women.[66] Sources suggest that positive law is not always applied, and the vast majority of law applied is customary law.[67] Amnesty state in a 2022 report that ‘social dynamics tend to prioritize the community over the individual and to place as much if not more importance on preserving the image and cohesion of that community than on justice.[68] Authorities rarely prosecute perpetrators of rape[69]. Recourse for acts of violence is limited for women.[70] A World Bank report states that Guinea is one of the most unequal countries in the world in terms of gender.[71]
[66] Amnesty International, ‘Guinea: shame must change sides: ensuring rights and justice for victims of sexual violence in Guinea’, 27 September 2022.
[67] Amnesty International, ‘Guinea: shame must change sides: ensuring rights and justice for victims of sexual violence in Guinea’, 27 September 2022.
[68] Amnesty International, ‘Guinea: shame must change sides: ensuring rights and justice for victims of sexual violence in Guinea’, 27 September 2022.
[69] United States Department of State, ‘Country Reports on Human Rights Practices 2023’, 2024.
[70] M Balde, R Diallo and others, ‘Perception of women on gender-based violence in Guinea: A qualitative study’, International Journal of Womens Health and Wellness.
[71] World Bank, ‘Priority for Guinea: Improving the status of Women and Girls’, 9 May 2023.
143. One article suggested that when justice personnel have attempted to address these issues, they have frequently been subjected to ‘severe pressures and threats’.[72] When alleged perpetrators of FGM have been arrested, authorities have been threatened with physical violence if they are not immediately released.[73]
[72] Institut national de la statistique report quoted in United Nations Human Rights Office of the High Commissioner, ‘Female Genital Mutilation in Guinea on the rise – Zeid’, 25 April 2016.
[73] Office of the United Nations Commission for Human Rights, ‘Summary of the OHCHR Report on human rights and the practice of female genital mutilation in Guinea’, 2016.
144. In this context, the Tribunal accepts that there is a real chance of serious harm from community members who would not accept the applicant’s advocacy for the elimination of FGM. These community members have harmed her before and are aware of her views. FGM has legitimacy in the country because of the involvement of medical practitioners and the lack of enforcement of laws. Authorities have been threatened with violence when trying to implement the law.
145. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. The Tribunal is satisfied that there is a real substantial basis for the applicant’s fear, rather than it being mere speculation. Those who speak out are ostracised and excluded, and the Tribunal accepts in an environment of past actions against the applicant, suppression of protestors, violence against women and lack of state protection for women, and rampant crime, there is a real chance (a substantial and non-remote chance[74] of serious harm (including severe psychological or physical harm) from community members.
[74] Chan v MIEA (1989) 169 CLR 379.
146. In making these findings, the Tribunal has taken into consideration the decision of AGA16 v MIBP [2018] FCA 628 in which the Court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities. In this case, the applicant has had little formal education, has suffered significant trauma in her life and is emotionally frail, suffering from major depressive disorder and anxiety. If hostility were to be directed towards her or she was physically attacked, this could have a severe impact on her mental health.
Does the harm relate to all areas of the country (s 5J(1)(c) of the Act)?
147. The serious harm must relate to all areas of the country (s 5J(1)(c) of the Act).
148. The Tribunal is satisfied that the feared harm relates to all areas of the country. The sources referred to earlier in this decision report that FGM is prevalent across the country and support for it is also widespread. The Tribunal is satisfied that the applicant would be targeted for hostility wherever she was located.
Are effective protection measures available to the applicant (s5J (2) of the Act)?
149. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country (s 5(J)(2) of the Act.
150. The applicant said in her statement accompanying her application that she reported attacks on her to police and the ministry of security of civil protection. She stated that she could not get assistance as she was told that FGM culture is ‘the identity of the people’. The Tribunal notes the sources cited earlier that although FGM was banned from 1965 the practice is still rampant.
151. The Tribunal is not satisfied that effective protection measures are available to the applicant. The Tribunal accepts the applicant’s submissions that the authorities ‘believe in the traditions’ as ‘FGM is the identity of the people’ and she would not be protected.
Could the applicant modify her behaviour (s 5J (3) of the Act)?
152. 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 (s5J (3) of the Act).
153. The requirement to modify behaviour in order to avoid persecution does not apply where modification would conflict with a characteristic that is fundamental to a person’s identity or conscience (s 5J 3(a) of the Act). The Tribunal is satisfied that modification, that is, keeping silent on her views about FGM, would conflict with a characteristic fundamental to the applicant’s conscience. Therefore, s 5J (3) does not apply.
Requirements in s 5J (4) of the Act
154. Section 5J(4)(a) of the Act requires that the legislated reason must be the essential and significant reason for the persecution. The Tribunal is satisfied that the essential and significant reason for the persecution the applicant would face, is her membership of the particular social group of women. The Tribunal is satisfied that there is a real chance that community members would harm the applicant in order to repress opposition to traditional dominant patriarchal systems, including FGM.
155. Section 5J(4)(b) of the Act requires that the persecution must involve serious harm to the person. The Tribunal is satisfied that the harm would be serious. This was discussed earlier in this decision with reference to the country sources and the applicant’s particular circumstances and vulnerabilities.
156. Section 5J (4)(c) of the Act requires that the persecution must involve systematic and discriminatory conduct. The Tribunal is satisfied that the persecution would involve systematic and discriminatory conduct. Community members who want to maintain FGM in Guinea would selectively target the applicant for her views on the issue.
Does the applicant have a right to enter and reside in a third country?
157. Having found that the applicant meets the criteria set out in section 36(2)(a) of the Act, the Tribunal has considered whether the applicant has not taken all possible steps to avail herself of a right to enter and reside in a country apart from Australia.
158. Under section 36(3) of the Act, 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.
159. Guinea is a member of the Economic Community of West African States (ECOWAS) signed in Lagos on 29 May 1975 and revised in July 1993.[75] ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration. ECOWAS members until recently were Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo. [76] Niger, Mali and Burkina Faso recently made a decision to withdraw.[77]
[75] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[76] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[77] The Conversation, 21 February 2024, < Free movement in west Africa: three countries leaving Ecowas could face migration hurdles>.
160. The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol.[78]
[78] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
161. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region.[79]
[79] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
162. The courts have provided some guidance on the scope of a right to enter and reside. In SZTOX v MIBP [2015] FCAFC 77 the Full Federal Court confirmed that the right may lie in an executive act as well as legislation. This can include a treaty, executive policy or other executive instrument. The Federal Court has held that a 'right to enter and reside' as envisaged in s.36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[80]The right to which s.36(3) refers is not merely a right to enter but must consist of a right both to enter and reside.[81] Australian courts have held that the right referred to in s.36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy.[82]
[80] MIMAC v SZRHU (2013) 215 FCR 35.
[81] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[82] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001).
163. 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.[83]
[83] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
164. 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’.[84]
[84] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
165. The applicant’s passport expired in 2021. It is not certain that she would be able to obtain appropriate travel documents including an international health certificate. It is not certain therefore that she would have a right of entry, in the sense of an existing right and not a past or lapsed right, or a potential right or an expectancy.[85]
[85] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001).

166. 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. Granting of Right of Residence to ECOWAS community citizens is not guaranteed — refusal is possible on public order, public security or public health grounds. [86] 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.[87] A key challenge is inconsistency between the ECOWAS Protocols and the national laws and policies regarding migration across ECOWAS member states.[88]
[86] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[87] K Arhin-Sam, A Bisong, L Jegen, H Mounkaila, and F Zanker, ‘The (in)formality of mobility in the ECOWAS region: The paradoxes of free movement’, South African Journal of International Affairs, 2022, 29(2), 187–205.
[88] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020; The Conversation, 21 February 2024, < Free movement in west Africa: three countries leaving Ecowas could face migration hurdles>..
167. Capacity issues also restrict implementation. Reports indicate ECOWAS suffers from a severe shortage of staff and human capacity, which impedes ECOWAS’ ability to run its programs and implement its mandate effectively.[89] Even though ECOWAS has established general freedom of movement and residency between ECOWAS countries, there are limitations due to local laws, administrative obstacles and extortion and other border issues. There is harassment at many borders, including sexual harassment and extortion, and lack of identification documents may impact on the ability to enter.[90] Even if the applicant were allowed entry into ECOWAS countries, which is not certain, the Tribunal is not satisfied she would have a presently existing right of residence, given the various limitations.
[89] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
[90] The Conversation, ‘Free movement in West Africa: the culture of mobility still matters despite challenges’, 24 August 2022, Business and Financial Times Online, 29 October 2021, < Border harassment remains rife despite ECOWAS trade protocols – GNCCI>.
168. Furthermore, the Tribunal is satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant availing herself of that right there would be a real risk of significant harm (s 36(3)(b). The applicant is a single, uneducated woman with a number of mental health issues and probably very limited resources. The Department of Foreign Affairs and Trade Report on ECOWAS in 2020 reports on discrimination, marginalisation and abuse of women as being highly prevalent across the ECOWAS region, often being grounded in cultural traditions and formalised by law. FGM is also widespread.[91] The applicant would be vulnerable to harm not only as a woman, but due to the general security situation in many countries. The security situation is unstable in many parts of the ECOWAS region.
[91] Department of Foreign Affairs and Trade, ‘DFAT Thematic Report – Economic Community of West African States (ECOWAS)’, 3 December 2020.
169. For the above reasons, s 36(3) does not apply.
Findings on refugee criteria
170. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of a particular social group of women if she returns to Guinea in the reasonably foreseeable future.
DECISION
171. The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Representative: Marial Lewis, Crossover Law
Date of hearing: 20 November 2024

ATTACHMENT A
- Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…