2308875 (Refugee) [2024] AATA 3907 (28 June 2024)

Last Updated: 25 October 2024

2308875 (Refugee) [2024] AATA 3907 (28 June 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Bilal Amani

CASE NUMBER: 2308875

COUNTRY OF REFERENCE: Chad

MEMBER: Adrienne Anderson

DATE: 28 June 2024

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 June 2024 at 4:05pm

CATCHWORDS
REFUGEE – protection visa – Chad – membership of particular social group – divorced woman with child – fear of harm from brother and ex-husband – forced marriage to Chadian man living in another country – physical, sexual and psychological violence by husband, and harassment and accusations by friend – husband took children back to Chad, where one was killed in traffic accident – husband’s official employment and connections – mental health – no counselling or psychological support – possibly no male relative in home country – country information – insufficient state protection and risk in all areas of country – treaty right to enter and reside in another country limited or not available – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (2), (4)(c), 5LA, 36(2)(a), (3), 65, 425(2)(a)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 2A

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIMAC v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35
Suntharajah v MIMA [2001] FCA 1391
SZQRM v MIAC [2013] FCCA 772; SZQRM v MIBP [2013] FCA 1297
WAGH v MIMIA [2003] FCAFC 194; (2003) 131 FCR 269



Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant, who claims to be a citizen of Chad, applied for the visa on 14 December 2017. On 9 June 2023 the delegate refused to grant the visa on the basis that the applicant did not meet the criteria for the grant of a protection visa. The applicant filed an application with the Tribunal for a review of the delegate’s decision on 20 June 2023. The applicant was represented in relation to the review.
3. The applicant was initially invited to a review hearing at 1.30pm on 28 May 2024. On the morning of 28 May 2024, the Tribunal received a request to postpone the hearing on the basis that the applicant needed additional time to gather documents and witness statements. The Tribunal declined the request on the basis that the Tribunal had sent the invitation to the hearing six weeks’ earlier, which the Tribunal considered to be sufficient time for documents to be prepared. The Tribunal advised the applicant that it was prepared to allow extra time after the hearing to receive documents.
4. The applicant attended the hearing with her representative and three support persons from [Organisation 1]. At the outset of the hearing, the applicant’s representative made a further request for adjournment on the basis of the present state of the applicant’s mental health. The applicant’s representative advised that he had not been able to take instructions that morning as the applicant was not able to provide coherent responses to his queries. The applicant informed the Tribunal that she had not received counselling or other psychological support for a period of three years. The applicant was visibly highly distressed. The Tribunal assessed that the applicant did not have the capacity to meaningfully participate in a hearing and adjourned to allow the applicant time to access psychological support and to gather documentary evidence of her claims.
5. In light of the applicant’s current circumstances and accepted history of poor mental health (discussed further below), the Tribunal determined that there was little utility in delaying the hearing in circumstances where the applicant may not regain the capacity to meaningfully participate in a hearing for some time and where the claim could be resolved favourably on the papers. In reaching this conclusion, the Tribunal has taken into account the Tribunal’s Guidelines on Vulnerable Persons^[1] and the Tribunal’s objective of providing a mechanism of review that is, among other considerations, fair, just, economical, informal and quick.^[2] On 11 June 2024, the Tribunal sought updated information from the applicant in writing (as discussed below).
6. The Tribunal has reviewed the documentary evidence and material before it, which includes the applicant’s statutory declaration and submissions to the delegate, identity documents pertaining to the applicant and her children, medical reports and financial records of the applicant’s remittances to Chad. It has also listened to the record of the protection visa interview with the departmental delegate.
7. Having considered all the information before it, including the applicant’s response to the Tribunal’s request for updated information, received on 26 June 2024, the Tribunal considers it appropriate to decide the review in the applicant’s favour on the basis of the material before it, and in the absence of a hearing, pursuant to section 425(2)(a) of the Act.

CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or a member of the same family unit as such a person and that person holds a protection visa of the same class.
9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
11. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
12. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs.

CLAIMS AND EVIDENCE

14. The applicant has consistently stated that she is a citizen of Chad, provided a copy of her Chadian passport, and has been assessed as a Chadian citizen by the Department. The Tribunal finds that the applicant is a citizen of Chad and has assessed her claims against Chad as the country of nationality and the receiving country.
15. The issue in this case is whether the applicant has a well-founded fear of persecution on return to Chad or whether there is a real risk of significant harm if the applicant is removed from Australia to Chad. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Applicant’s background and claims for protection

16. The applicant is a [Age]-year-old woman from Bourkou-Ennedi-Tibesti (BET), in Bourkou, Chad. She is of [named Ethnicity] and Muslim faith. The applicant’s father is deceased. Her mother resides in N’Djamena, Chad.
17. She has two children, one of whom is deceased. The applicant’s [son] was born in [Year] and was killed in a traffic accident in Chad in March 2018. The applicant’s [daughter] was born in [Country 1] in [Year] and currently resides in Chad.
18. It appears from stamped pages in the applicant’s passport that she first travelled to [Country 1] in April 2013. She returned to Chad where she resided between February 2014 and March 2015. In March 2015 she returned to [Country 1], where she resided until October 2017.
19. On 17 November 2015 the applicant was granted a [Specified] visa. She last arrived in Australia on the [visa] with her son [in] October 2017. [In] November 2017 the applicant’s son departed Australia with his father. On 14 December 2017 the applicant lodged the application for a protection visa.
20. In essence, the applicant claims to fear harm at the hands of her eldest brother and her (ex)husband. Her claims are that when she was in her final year of high school, her eldest brother, who was acting as her guardian following the death of her father, forced her into an arranged marriage with a Chadian man living in [Country 1] named [Mr A]. The applicant experienced serious physical, sexual and psychological violence from her husband [Mr A] in [Country 1] and Australia. When [Mr A] travelled to live in Australia, the applicant was sexually harassed by a friend of [Mr A] called [Mr B], who the applicant was living with in [Country 1]. The applicant refused [Mr B]’s advances and stayed at friends’ houses to avoid him. [Mr B] informed [Mr A] that the applicant was staying out at night, which caused [Mr A] to accuse the applicant of being a prostitute. He informed her family and the applicant’s eldest brother subsequently threatened to kill the applicant.
21. After the applicant came to Australia to try to resolve the situation with her husband, the abuse continued, culminating in [Mr A] forcibly taking the applicant’s son from her and leaving Australia. He returned to [Country 1] to collect the applicant’s daughter and took both children back to Chad, where the applicant’s son was later killed in an accident. The applicant’s daughter is residing with [Mr A]’s parents and the applicant has no contact with her.
22. The applicant lodged the application for the protection visa on 14 December 2017. In support of a request for prioritisation of her application made on 26 August 2020, the applicant’s former representative provided a confidential psychological report by [Ms C], counsellor, of [Organisation 2], dated 16 June 2020 and a letter from [a] GP, of [Organisation 3], dated 28 April 2020. Both described the applicant’s distress and grief at the loss of her son. The report by [Ms C] described the applicant’s symptoms including sleeping difficulties and low appetite.
23. The applicant was interviewed by the delegate on 24 April 2023. The Tribunal has had the benefit of listening to the audio recording of that interview. At interview the applicant gave evidence of events arising after her application form was lodged. She claimed that a male friend of Chadian nationality who had assisted the applicant in Melbourne when she was experiencing abuse from her husband had been arrested when he returned to Chad on charges brought by [Mr A]. Subsequent to the interview the applicant provided to the Department Counselling Case Notes by [Ms C] and other practitioners at [Organisation 2]. The applicant also informed the delegate that she was now divorced from her husband. The delegate made a decision to refuse the visa on 9 June 2023.
24. In her decision, the delegate accepted that the applicant was a Muslim woman from the [named Tribe]. The delegate also accepted that the applicant’s children were taken back to Chad, that her son died in an accident in Chad, and that these events contributed to a poor state of mental health. The delegate accepted that the applicant suffered from distress, low appetite and sleeping difficulties between 2018 and 2020.
25. However, the delegate did not accept that the applicant was married or that she had experienced family violence at the hands of her husband as claimed. The delegate found that the applicant had the same marital status as when she came to Australia. The delegate also did not accept that the applicant was forced to live in [Country 1] with an unrelated male, and consequently did not accept that the applicant’s family were informed that she was a prostitute. It followed that the delegate did not accept that the applicant’s family believes the applicant has shamed them or that the applicant’s eldest brother had threatened to kill the applicant.
26. The delegate accepted gender-based violence and gender discrimination to be serious problems in Chad, referring to country information recording high rates of forced marriage and sexual and domestic violence, pervasive discrimination against women and limited access to education for girls.
27. The delegate accepted that the applicant faced a real chance of discrimination on return to Chad as a Muslim woman. However, the delegate found that because the applicant would be able to access support from her family, including living with them, the applicant did not face a real chance of persecution.
28. As outlined above, the hearing scheduled before the Tribunal on 28 May 2024 did not proceed substantively. On 26 June 2024, the applicant provided a written response answering the Tribunal’s questions set out in the request for information. It also included the following documents:
    1. Photographs of [Mr A] with various African leaders in his position as [Official job title];
    2. Letter of Support from friend [E] of N’Djamena, Chad;
    3. Letter of Support from [the] Founder and Managing Director of [Organisation 1];
    4. Certificate of divorce in relation to the applicant and [Mr A] from the Higher Council of Islamic Affairs, Council delegation of the municipality of the 3rd arrondissement and translation thereof;
    5. Court judgment, Court of Appeal N’Djamena, in respect of [Mr H] and translation thereof;
    6. Statutory declaration of [Mr H] stating the above document to be true and original.
29. It appears from these documents that the man that the applicant claimed at her departmental interview had been arrested in Chad for assisting the applicant is named [Mr H] and the above documents submitted to the Tribunal purport to relate to his eventual release from custody in Chad.

FINDINGS AND REASONS

Assessment of claims

30. It will be apparent from the above summary that the applicant has advanced a number of claims for protection. In this decision record, the Tribunal deals only with claims relevant to its decision. For the reasons which follow, the Tribunal is satisfied that the applicant faces a real chance of serious harm on return to Chad at the hands of the community or society broadly for the essential and significant reason of her gender and membership of the particular social group ‘women’.
31. On the basis of documentary evidence before the Tribunal, including the applicant’s passport, her daughter’s passport, and departmental records pertaining to the applicant and her son, the Tribunal accepts that the applicant travelled to [Country 1] in 2013 as [an Age]-year-old and subsequently had two children in [Years]. The Tribunal notes that while the delegate doubted the applicant was married, her claims to have been compelled to marry at the age of 18 are consistent with country information which indicates that 60.6% of married women aged 20 to 24 were married before the age of 18.^[3] However, the Tribunal considers that whether the applicant was married or not is irrelevant to the outcome of the review as it is beyond dispute that she has had two children and is not in an ongoing intimate relationship.
32. On 25 June 2024, in response to a query from the Tribunal, the applicant provided the following information about her family’s situation:
    1. The applicant has [full brothers]: [Names, Ages, Countries].
    2. The applicant has a half-brother, [Mr I], who lives with his mother and with whom she has no relationship.
    3. The applicant sends money to her mother from Australia. She has helped her mother to pay off a debt.
    4. The applicant’s brothers currently support her mother financially from overseas.
33. In relation to her situation on return, her evidence included that the situation of a single woman in Chad is complex and challenging due to social, economic and cultural factors and that women are not allowed to live alone in any part of Chad.
34. There are unresolved questions as to whether the applicant has one or two half-brothers and where her full biological brothers are living. Her protection visa application form stated that she had two half-brothers, one of whom was named [Mr I], while her written evidence to the Tribunal only identified one half-brother named [Mr I]. The Tribunal is unable to make a clear finding as to how many half-brothers the applicant has, but is nevertheless satisfied from all of the information before it that the applicant does not have a half-brother with whom she has a real or ongoing connection or relationship and who could provide support to her in Chad. In relation to her full biological brothers, the applicant’s evidence at the departmental interview of April 2023 was that at that time her brothers resided in N’Djamena. The applicant’s written evidence to the Tribunal is that her brothers left Chad in 2019 and 2022. The Tribunal is unable to make a clear finding on where her brothers reside, but for the reasons set out below, the Tribunal does not consider this to be a determinative issue in the review.
35. The Tribunal accepts that the applicant would be returning to Chad as a single woman who has had two children and that she is no longer in a relationship with their father. The Tribunal also accepts on the basis of medical evidence before it that the applicant has a history of poor mental health. The Tribunal has assessed the applicant’s risk on return to Chad on this basis.

Risk of harm as a single woman in Chad

36. In assessing whether the applicant has a well-founded fear of persecution, the Tribunal must consider whether the applicant has a real chance of suffering serious harm in the reasonably foreseeable future. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.^[4]
37. While the applicant was born in BET, the Tribunal accepts that the applicant’s home area is N’Djamena and that it is to N’Djamena that she would return if removed to Chad. The entire period that the applicant has lived in Chad as an adult was spent in N’Djamena. Her mother lives there and there is nowhere else in Chad where the applicant has any support or connections.
38. The Tribunal has noted above that the delegate accepted there to be a real chance the applicant would experience discrimination due to her status as a Muslim woman, and that the delegate found that this discrimination did not amount to a real chance of persecution because the applicant would return to Chad and be able to access family support, including living with her family.
39. The Tribunal finds that the applicant would be able to live with her mother on return to Chad. The Tribunal accepts however that the applicant’s mother does not work and is financially reliant on the applicant’s brothers and on money the applicant sends from Australia.
40. According to country information, Chad is one of the least developed countries in the world, ranking 189^th out of 191 countries on the Human Development Index in 2023-24.^[5] Bertelsmann Stiftung’s 2024 Transformation Index report on Chad (BTI report) notes that:

a significant portion of Chad’s population is affected by high levels of poverty, which were further exacerbated by the COVID-19 pandemic and the instability that followed the sudden death of Idriss Déby. In 2018, 62% of the population was living below the national poverty line.^[6]

41. The BTI report also states that ‘at 54.5 years, life expectancy is among the lowest on the planet. Public expenditure on health is also at the lowest end at 0.8%. These figures reflect the deficiency of a public safety net for the majority of the population.’^[7] Only a small group of government, military and development organisations reportedly have access to a social safety net. The majority of the population is without employment and ‘relies entirely on the informal sector, as well as on ethnic, clan and family structures to survive.’^[8] As the BTI report notes, ‘[t]he limited aid and financial measures the government offers, such as food distribution programs or tax reductions for imported goods, have done little to alleviate the suffering of the population.’^[9]
42. Single, divorced and widowed women are reportedly marginalised and vulnerable to poverty because of discriminatory practices and traditional gender roles.^[10] The United States Department of State (USSD) report for 2023 notes that ‘[i]nheritance, property, and housing practices frequently discriminated against women due to cultural and religious norms and practices in many communities.’^[11]
43. Chad has one of the worst records on gender equality globally.^[12] Less than 5% of women aged 25 and older have completed secondary education or higher.^[13] As the BTI report notes: ‘[g]irls and women lack adequate access to educational institutions and public office... Gender inequality is visible at an early age. The literacy rate has declined drastically to 14.0% for women and 31.3% for men’.^[14]
44. The USSD report also notes that the government does not enforce laws against gender discrimination effectively^[15] and that women face discrimination in public and private spheres of life. The report sets out various legal barriers to women finding work, including prohibitions on the hours and types of work women can undertake. Women are unable to work in factories or in jobs that present ‘physical or moral danger’ or are otherwise deemed ‘morally inappropriate’.^[16] Women need the permission of their husbands or male guardians to legally work.^[17]
45. Available country information indicates that gender-based violence including sexual harassment, sexual exploitation and rape occurs at high rates. The 2024 Freedom House report states:

Violence against women is common. Female genital mutilation or cutting is illegal but widely practiced, and roughly a third of women aged 15 to 49 have undergone it. According to the UN Global Database on Violence against Women, which compiles data from various local and international sources, approximately 29 percent of women aged 15 to 49 had experienced physical or sexual intimate-partner violence in their lifetime as of 2022, and over 17 percent had experienced such violence in the last 12 months. A little more than 60 percent of married women aged 20 to 24 were married before age 18. The penal code bans child marriage, but the courts rarely punish those who violate the ban.^[18]

46. Girls and women who oppose forced marriages reportedly face violence and other serious consequences from families and communities,^[19] as do women who are otherwise unable to conform to gender norms and social norms around marriage. For example, a 2019 study on violence against women in Chad states:

Attitudes and behaviours related to the domination of women and girls by household, family or community members govern social norms that legitimise polygamy, do not tolerate extramarital pregnancy and hold girls and women responsible if they become pregnant outside marriage. The consequences for not abiding by these norms are highly detrimental for the social resources of girls and women. According to a midwife at a health centre in BeG, a girl who has experienced rape and/or pregnancy outside marriage may suffer the same fate: ‘No one else is going to marry you; your parents will throw you out'.

...

Even when girls have been subjected to sexual violence, they are often held responsible by both men and women family members, for the occurrence of violence and the potential resulting pregnancy.^[20]

47. Violence against women, including sexual violence, is reportedly ‘a common occurrence across the entire country and accepted in large parts of the society.’^[21] The USSD reported that sexual harassment, both verbal and physical, was widespread at all levels of society and that rape was a problem.^[22]
48. Chadian empirical research of violence against women indicates that:

Violence is a major risk for women and girls, not just during conflict but every day. According to Chad’s EDS/MICS 2014–2015, a third of women (33%) reported having been physically or sexually abused at any time since the age of 15.^[23]

49. The same study indicates that the age of a woman is a risk factor and that the most at risk group of physical and sexual violence are women of 30-39.^[24]
50. The Tribunal has considered the applicant’s circumstances on return to Chad as a single woman. Given the applicant’s personal circumstances and the country information indicating legal and practical barriers to women accessing employment, the Tribunal finds that the applicant would face considerable challenges in finding adequate employment and that she would be reliant on any support her brothers provide to her mother.
51. The Tribunal is satisfied that the applicant’s financial precarity and her other personal circumstances expose her to a high risk of gender-based violence, including sexual exploitation, harassment, assault, and rape on return to Chad. Her relevant circumstances include that she has a history of poor mental health and trauma as a result of the death of her [son], that she is a single woman who is [Age] years old, and that she has had children and is not in an ongoing relationship with their father and therefore would be considered to have transgressed societal and cultural norms around women’s behaviour.
52. While the Tribunal has been unable to resolve the question of whether the applicant’s brothers reside in Chad and thus whether she could live with them, this does not detract from the above assessment of the risk facing the applicant on return to Chad. This is because the Tribunal does not accept that the presence of male family members in Chad mitigates the applicant’s risk of experiencing gender-based harm in a practical sense. The Tribunal did not locate any information indicating that gender-based violence only affected women and girls without male family members. To the contrary, country information suggests that women who have failed to meet gender and social norms are at risk of being harmed or rejected or otherwise refused support by male family members.^[25]
53. On the basis of the applicant’s circumstances and the available country information indicating a high prevalence of gender-based violence, the Tribunal accepts the applicant faces a real chance of sexual and gender-based abuse and violence in Chad now or in the reasonably foreseeable future. The feared harm includes significant physical harassment and harm which amounts to serious harm for the purposes of s 5J(4) of the Act. The Tribunal is satisfied that the harm feared, being gender-based violence, involves systematic and discriminatory conduct, as required by s 5J(4)(c) of the Act.

Refugee nexus

54. Independent research, including cross-cultural studies, demonstrate that while cultural and other factors may play a role, domestic, sexual and other forms of gender-based violence disproportionately affecting women are underpinned by gender inequality.^[26] Studies specifically examining the Chadian context make the same findings.^[27] It is accepted that sexual violence is not about sexual gratification but about power and control^[28] and that it is more likely to occur in societies and cultures with unequal power relations and where beliefs in male superiority and female inferiority are fostered and maintained.^[29]
55. The above country information indicates that Chad is a highly unequal society in terms of power accorded to men and women, and that women and girls face disproportionately high rates of forced marriage, sexual violence, domestic violence and other gender-based harms.
56. For these reasons the Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of her gender and membership of the particular social group ‘women’. This group is defined by a shared innate or immutable characteristic^[30]– gender – which is not a shared fear of persecution.^[31]

Effective protection

57. 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 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
58. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
59. Country information indicates that the government has taken steps to address gender-based violence, including creating the National Coordination to Fight Gender-based Violence in 2010 and a National Strategy to Fight Gender-based Violence in 2014.^[32] The Association for Women Jurists in Chad offers services, including a helpline and legal aid, to victim-survivors of gender-based violence.^[33] International and local NGOs reportedly also provide some support services.^[34]
60. However, the UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee) assesses that the available shelters and services for victims of gender-based violence are not sufficient or adequate.^[35] The Committee also identifies that such violence is underreported for fear of retaliation and because of stigma and impunity of perpetrators.^[36] In relation to sexual violence, while police often detained alleged perpetrators, cases were reportedly rarely tried as most rape suspects are fined and released.^[37] The CEDAW Committee has expressed concerns about the ‘fragile and dysfunctional justice system’ in Chad, noting in relation to gender-based violence against women, that:

despite efforts to reform the judiciary, the number of courts and qualified judicial personnel is insufficient; the independence of judges is not guaranteed and impunity prevails over the application of law.^[38]

61. Communities sometimes compelled rape survivors to marry their attackers.^[39] Other traditional justice mechanisms, such as diyya (where financial compensation is offered as settlement in cases of bodily assault or murder), are also used to settle cases of rape and other forms of gender-based violence.^[40]
62. In light of the above information, the Tribunal is satisfied that effective protection measures against sexual and gender-based violence are not available to the applicant in Chad.

Risk of harm in all areas of Chad

63. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Tribunal has considered whether the applicant faces a real chance in all areas of Chad of serious harm in the form of sexual and gender-based abuse and violence.
64. The applicant has no family or other support networks outside of her home area of N’Djamena. The Tribunal accepts the applicant’s written evidence, which is consistent with independent country information, that the situation of a single woman in Chad is governed by social, economic and cultural factors and that women face difficulties in living alone in all parts of Chad. The USSD report, for example, confirms that women seeking to rent accommodation often have to prove they are married,^[41] which the Tribunal accepts that the applicant would not be able to do. In these circumstances, and in light of the country information stating that sexual and other gender-based violence against women is common across the entire country and at all levels of society, and is met with impunity for perpetrators, the Tribunal accepts that the applicant’s vulnerability to this form of harm persists across all areas of Chad.
65. The Tribunal is therefore satisfied, on the basis of all of her circumstances, that the applicant faces a real chance of serious harm in all areas of Chad. The applicant therefore comes within the definition of a ‘refugee’ set out in s 5H of the Act.

Right to enter and reside in a third country

66. Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them.
67. Pursuant to section 36(3) of the Act, Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.^[42]
68. 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.^[43] The Federal Court has held that this ‘right to enter and reside’ 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.^[44] 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.^[45]
69. Section 36(3) is relevant to the applicant because Chad is a member of the Economic Community of Central African States (ECCAS). ECCAS is comprised of Angola, Burundi, Cameroon, Central African Republic, Chad, the Republic of Congo and the Democratic Republic of Congo.^[46] ECCAS states adopted a Protocol relating to the Freedom of Movement and Right of Establishment of Nationals of Member States within the Economic Community of Central African States (ECCAS Protocol) in 1983, which was further endorsed by a 1990 ECCAS Decision.^[47] Although ECCAS has a policy of free movement for citizens of its member states, actual measures to enable this are reportedly absent. Establishment of free movement has not been a priority for ECCAS member states^[48] and there has been a lack of progress due to states’ security concerns and concerns about the spread of disease.^[49]
70. The United National Economic Commission for Africa observed that in practice the free movement of people within ECCAS is only effective in four member states, Cameroon, Chad, Congo and Democratic Republic of Congo.^[50] Chadian citizens are not permitted to enter the Democratic Republic of Congo without a visa.^[51] Chadian citizens can enter Cameroon and the Republic of Congo without a visa, but can only remain for up to 90 days.^[52] A ‘sojourn card’ (carte de séjour) or residence permit is required to reside in those countries freely^[53] and there are additional and varying visa requirements in respect of these permits including age, work or study qualifications. There is no evidence before the Tribunal that the applicant has an entitlement to work or study in those countries.
71. The applicant’s circumstances and the country information suggest that the applicant would only be permitted to enter Cameroon and the Republic of Congo as a tourist, for a period of 90 days. Section 36(3), by contrast, refers to a right to enter and reside which Australian courts have interpreted as encompassing the ’privileges normally associated with residency’.^[54] That is, that the right refers to something more than a mere right to visit.^[55]
72. The Tribunal is therefore not satisfied that Chad’s membership of ECCAS gives rise to a presently existing right for the applicant to enter and reside in any other member state. There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds that she has no such right and that she is not excluded from Australia’s protection by s 36(3) of the Act.

CONCLUSION

73. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

DECISION

74. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Adrienne Anderson
Member

ATTACHMENT - 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.

...

---

^[1] Administrative Appeals Tribunal – Migration and Refugee Division, Guidelines on Vulnerable Persons (November 2018).
^[2] Administrative Appeals Tribunals Act 1975 (Cth), s 2A.
^[3] Freedom House, Freedom in the World 2024 – Chad (29 February 2024).
^[4] Chan Yee Kin v MIEA (1989) 169 CLR 379.
^[5] United Nations Development Project (UNDP), Human Development Report 2023/2024 (2024).
^[6] Bertelsmann Stiftung, BTI 2024 Country Report — Chad (2024).
^[7] Ibid.
^[8] Ibid.
^[9] Ibid.
^[10] OECD Development Centre, Social Institution and Gender Index 2019: Chad (2019) 3.
^[11] United States Department of State (USSD), 2023 Country Report on Human Rights Practices – Chad (22 April 2024).
^[12] World Economic Forum, Global Gender Gap Report 2023 (June 2023); add others
^[13] UN Women and UNDP, The Paths to Equal: Twin Indices on Women’s Empowerment and Gender Equality (2023) 18.
^[14] Bertelsmann Stiftung, BTI 2024 Country Report — Chad (2024).
^[15] USSD, 2023 Country Report on Human Rights Practices – Chad (22 April 2024).
^[16] Ibid.
^[17] OECD Development Centre, Social Institution and Gender Index 2023: Chad (2023).
^[18] Freedom House, Freedom in the World 2024 – Chad (29 February 2024).
^[19] OECD Development Centre, Social Institution and Gender Index 2019: Chad (2019) 3-4.
^[20] Virginie Le Masson et al, ‘How violence against women and girls undermines resilience to climate risks in Chad’ (2019) 43(3) Disasters 5245-5270.
^[21] Bertelsmann Stiftung, BTI 2024 Country Report — Chad (2024).
^[22] USSD, 2023 Country Report on Human Rights Practices – Chad (22 April 2024).
^[23] Virginie Le Masson et al, ‘Violence against women and girls and resilience: links, impacts and perspectives from the Chadian context’ (BRACED, 2018) 20.
^[24] Ibid 22.
^[25] Virginie Le Masson et al, ‘How violence against women and girls undermines resilience to climate risks in Chad’ (2019) 43(3) Disasters 5245-5270.
^[26] See eg United Nations, Ending Violence against Women: From Words to Action, Study of the Secretary General (2006) 28-29; Gurvinder Kalra and Dinesh Bhugra, ‘Sexual violence against women: Understanding cross-cultural intersections’ (2013) 55(3) Indian J Psychiatry 244-249.
^[27] Virginie Le Masson et al, ‘How violence against women and girls undermines resilience to climate risks in Chad’ (2019) 43(3) Disasters 5245-5270; Virginie Le Masson et al, ‘Violence against women and girls and resilience: links, impacts and perspectives from the Chadian context’ (BRACED, 2018).
^[28] Association of Alberta Sexual Assault Services, Why Sexual Violence Occurs < https://aasas.ca/ending-sexual-violence/why-sexual-violence-occurs/>.
^[29] Gurvinder Kalra and Dinesh Bhugra, ‘Sexual violence against women: Understanding cross-cultural intersections’ (2013) 55(3) Indian J Psychiatry 244-249.
^[30] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2002) [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].
^[31] Section 5L(d) of the Act.
^[32] OECD Development Centre, Social Institution and Gender Index 2019: Chad (2019) 5.
^[33] Ibid.
^[34] Ibid, referring to the International Refugee Committee’s Women Protection and Empowerment Program runs 23 women’s centres which provide referrals and support to GBV survivors and local organisation, Association of Women’s Paralegals, which offers counselling and referrals to health and legal services through 4 centres in the Lac Province.
^[35] Committee on the Elimination of Discrimination Against Women (CEDAW Committee), Concluding Observations of the Committee on the Elimination of Discrimination Against Women – Chad, Fiftieth Session, UN Doc, CEDAW/C/TCD/CO.1-4 (4 November 2011) [22].
^[36] Ibid.
^[37] USSD, 2023 Country Report on Human Rights Practices – Chad (22 April 2024).
^[38] CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination Against Women – Chad, Fiftieth Session, UN Doc, CEDAW/C/TCD/CO.1-4 (4 November 2011) [14].
^[39] USSD, 2023 Country Report on Human Rights Practices – Chad (22 April 2024).
^[40] CEDAW Committee, Concluding Observations of the Committee on the Elimination of Discrimination Against Women – Chad, Fiftieth Session, UN Doc, CEDAW/C/TCD/CO.1-4 (4 November 2011 [22].
^[41] Ibid.
^[42] Sections 36(4)–(5A)
^[43] WAGH v MIMIA [2003] FCAFC 194; (2003) 131 FCR 269 per Hill J at [64].
^[44] MIMAC v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35.
^[45] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001).
^[46] The East African Community Common Market (Free Movement of Persons) Regulations, Annex I to the EAC Protocol (EAC Secretariat, November 2009).
^[47] The East African Community Common Market (Free Movement of Persons) Regulations, Annex I to the EAC Protocol (EAC Secretariat, November 2009).
^[48] International Organization for Migration (IOM), West and Central Africa: The regional migration context (11 January 2019).
^[49] Tamara Wood, The role of free persons agreements in disaster management in addressing disaster placement – a study of Africa (May 2019).
^[50] United National Economic Commission for Africa, ECCAS – Free Movement of Persons.
^[51] <https://visaguide.world/africa/dr-congo-visa/>.
^[52] <https://visaguide.world/africa/cameroon-visa/>; <https://visaguide.world/africa/republic-of-the-congo-visa/>.
^[53] IOM, International Dialogue on Migration Intersessional Workshop on Free Movement of Persons in Regional Integration Processes, Supplemental materials (18-19 June 2007).
^[54] SZQRM v MIAC [2013] FCCA 772, upheld on appeal in SZQRM v MIBP [2013] FCA 1297. The Federal Circuit Court stated that two factors in that case supported a right to ‘reside’ as opposed to a ‘right to just visit’: that ‘the right in this case conferred privileges normally associated with residency (either of a temporary or permanent nature), including the right to work’ and that the UK government itself described the right as a ‘right of residence’: [114]-[117].
^[55] Ibid.