Andrew Wilkie (Clark, Independent) Share this | Hansard source

In that case it all seems to hinge on what the tribunal decides is a 'reasonable explanation'. Perhaps I could just quickly whizz through a few historic examples and at the end of these examples put to the Attorney-General the question, do any of these fall within the criteria for a reasonable explanation?

Mindy fled Nigeria having experienced serious gender based violence from her family. She was fearing harm as a member of the LGBTQI+ community. She was afraid to disclose her sexuality to the department because of stigma and a fear that her family or others in Nigeria might find out. It was only after obtaining legal assistance that she could articulate her claim and the reasons for delay in raising it. Ultimately she was recognised as a refugee.

Another example is Mariama, who fled Sierra Leone having experienced female genital mutilation. She did not raise it at the primary stage because she did not know it was relevant to her case because of how prevalent and normalised the practice is in Sierra Leone. Had she not had a lawyer, the presumption in the section could not have been exercised against her with what is a clear claim not considered, and her status as a refugee would not have been recognised.

Achiva, a divorced woman from Ethiopia, arrived in Australia having experienced physical and sexual violence from her former husband, and persecution for her political opinion. Due to trauma and cultural taboo, she was not able to disclose the violence she had experienced until she had established a relationship of trust with a lawyer, which took months. Without the lawyer, she would probably not have been able to raise her claims or articulate the reason she could not raise them earlier. Working through it with a lawyer, the presumption was able to be rebutted eventually.

Litiana fled Fiji having experienced severe gender based violence. She lodged an application raising these claims and it was rendered invalid. Her second application, made with the assistance of a support person, did not include these claims due to the support person's negligence. After she was denied an interview at the primary stage, the tribunal raised the presumption against her and required submissions post hearing, using significant resources. I can say that in this case a decision is pending.

Elnaz experienced physical and sexual family violence, including threats to kill and violence against her children from her husband, in both Iran and Australia over a period of years. She couldn't previously raise it because her application was joined with her husband's. Further, she was afraid her family in Australia would learn what happened to her and she feared her community's judgement of her if she disclosed the violence in her relationship. But, with the assistance of a lawyer, Elnaz was able to rebut the presumption, leading to her recognition as a refugee.

Finally, there is the example of Mubashir—these are not their real names—fled Pakistan fearing harm from the Taliban. He did not disclose at the primary stage that he had been targeted by military intelligence, as he feared that information would be shared with authorities and he feared severe consequences.

In other words, there are any number of applicants for protection, who, for very good and very legitimate reasons, were not able to, or did not think to, provide a full and detailed explanation of their circumstances. Surely, in all those cases the presumption should not have applied and they should have been allowed to add information subsequently—for example, after they had been able to trust a lawyer or after they were made aware of the scope of our laws and in what circumstances protection might be applied. So I am concerned that the section remains and that, if it is going to remain, that it remains ill-defined as to in what circumstances the tribunal will be able to accept additional information.

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