1615658 (Refugee)

[2019] AATA 5986

1615658 (Refugee) [2019] AATA 5986 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615658

COUNTRY OF REFERENCE:                   The Gambia

MEMBER:C. Packer

DATE:26 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

The Tribunal finds it has no jurisdiction in respect of the daughter.

Statement made on 26 June 2019 at 6:00pm

CATCHWORDS
REFUGEE – protection visa – The Gambia – political opinion – political climate of country – environmental issues – social group – returnees from West – travelled safely in and out of country – interrogation and monitoring isolated occurrence – no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 dependant.

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 Immigration (the delegate) to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named applicant (the applicant) is a woman aged [specified], born in The Gambia and a citizen of The Gambia. The applicant arrived in Australia [in] May 2013, as a holder of a Student visa, and had travelled on a Gambian passport issued [in] 2012 and valid to [2017].

3. Her husband (applicant 2) is a man aged [specified], and their son (applicant 3) is aged [specified], and they are also citizens of The Gambia. [In] September 2013 applicants 2 and 3 entered Australia with Student visas on Gambian passports.

4. On 21 May 2014 the applicants applied for Protection (Class XA) visas.

5. On 23 November 2015 the applicants attended an interview with the delegate.

6. On 23 September 2016 the delegate refused the application.

7. On 26 September 2016 the applicants applied for review of the delegate’s decision.

8. On 13 June 2019 the applicants attended a Tribunal hearing. The issue in this case is whether the applicants meet the refugee criterion, and if not, whether the applicants are entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

9. In the application, the applicant’s narrative centred on an occurrence in The Gambia in June 2011. She claimed that while working in [Organisation 1] she voiced an opinion [during] a meeting, and this led her to be interrogated that evening by [Organisation 2], and then secretly monitored. Subsequently, after she had entered Australia she discovered in October 2013 that her former bosses had been arrested some months before and that the authorities were also seeking to arrest and detain her. I have carefully considered her evidence about these occurrences, however, in light of country information about a change of government and country conditions in The Gambia I do not accept that any of her past actions or any of these past occurrences would now bring her to the adverse attention of the current authorities or any other party. In the review the applicants additionally claimed to fear being harmed by the current authorities because of their strong political views. However, after considering their evidence and the material before the Tribunal, I do not accept that they have a well-founded fear of persecution, or substantial grounds for believing there is a real risk that they will suffer significant harm, in The Gambia now and in the reasonably foreseeable future. My assessment follows.

   CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

   Background

10. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. The applicant stated that she was born and raised in [a] suburban district to the west of [City 1] in The Gambia. She has Wolof ethnicity and is a Muslim. She is married to applicant 2 and they have [a number of] children. Their son is included in the application as applicant 3. The applicant’s protection visa application showed travel to several countries including: [Country 1], [Country 2], [Country 3], [Country 4], [Country 5] and [Country 6]. She and applicant 3 travelled outside Australia between [June] and [August] 2015 while holding Bridging B visas, and her evidence is they travelled to [Country 6].

11. Applicant 2 made no claims of his own in the application. In his Part D he stated he was born in [City 1] in The Gambia, and was in the Mandinka ethnic group and a Muslim. He stated he had lived for a period in [Country 7] (“Moved there to live with my then wife.”) and he speaks English, [Country 1 language] and [another language]. He is self-employed.

12. Applicant 3 made no claims of his own in the application. His Part D stated he was born in The Gambia, and was in the Mandinka ethnic group and a Muslim. He showed travel to [Country 8] and [Country 6].

    The daughter and youngest son

13. Their second child, a daughter aged [specified] years, also sought to apply for a Protection visa, and was also included in the review application. However, the delegate found that her application is invalid pursuant to Subdivision AK of the Act (s.91M - s.91Q). Section 91M of the Act states:

    91M.     This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa.

14. As discussed in the delegate’s decision and at hearing, the daughter was born in [Country 2] in [date] and is a [Country 2] citizen by birth, and she had a right to obtain a [Country 2] passport. Indeed, the daughter travelled with her family to The Gambia and subsequently travelled to Australia on a [Country 2] passport. Also as discussed at hearing, and not disputed by the applicants, country information[1] shows that a child born outside of The Gambia is a Gambian citizen if at least one parent is a Gambian citizen, and the constitution permits dual citizenship:

    A distinguished Gambian legal expert has explained in detail the issue of dual citizenship. Lamin J Darboe, formerly a Magistrate in the Gambia and now a lawyer in the United Kingdom, said “although a child may be born in the UK and never actually visited The Gambia, he or she is nevertheless entitled to automatic Gambian citizenship under certain circumstances.” The legal personality quoted Section 10 of the 1997 Constitution of the Republic of The Gambia that “a person born outside The Gambia after the coming into force of this Constitution shall be a citizen of The Gambia by descent if at the time of his or her birth either of his or her parents is a citizen of The Gambia otherwise than by virtue of this section or any comparable provision of any earlier Constitution.” …

    Lawyer Darboe, whose address was greeted with applause, said “by a 2001 Constitutional amendment, Section 12A (1) expressly authorises dual citizenship for Gambians by stating that “A citizen of The Gambia who acquires the citizenship of another country may, if he or she so desires, retain his or her citizenship of The Gambia.” He added that “dual citizenship is nevertheless proscribed for registered or naturalised Gambians but the Constitution leaves no doubt whatsoever that citizens by birth or descent are not afflicted with this infirmity. At Section 13(4), it states that “Nothing in this or any other provision of this Constitution or any other law shall be construed as depriving, or authorising any person or authority to deprive, any citizen of The Gambia by birth or descent of his or her citizenship of The Gambia whether on account of such citizen holding the citizenship or nationality of some other country or for any other cause.”

    [1] Report by Musa Saidykhan in Kairo News, Legal Expert Explains Dual Citizenship, 25 February 2014, [>

    At hearing the applicant first asked the Tribunal whether her daughter could make an application. However, as discussed at hearing, the child is a citizen both of The Gambia and [Country 2], and so is a national of two countries. On 9 September 2016 the Minister declined to exercise his power under section 91Q of the Act to allow the child to lodge a Protection visa application. The applicants were notified of this outcome on 16 September 2016. In sum, the daughter has not been permitted to lodge a Protection visa application and she is not an applicant. The Tribunal finds she is not a review applicant, and the Tribunal has no jurisdiction in respect of her.

15. Subsequently, the applicants have had a son born [date] and now aged [specified] years. However, the applicant advised at the hearing that he has not applied for a protection visa or any other visa. I advised the applicants they should approach the Department in order to regularise the son’s migration status.

    Summary of claims

16. The applicants claim to fear persecution in The Gambia from the authorities. Their key claims as summarised are:

    ·In June 2011 the applicant while working in [Organisation 1] voiced an opinion [during] a meeting, and this led her to be interrogated that evening by [Organisation 2], and then secretly monitored.

    ·After she had entered Australia she discovered in October 2013 that her former bosses had been arrested some months before and that the authorities were also seeking to arrest and detain her. When she travelled to [Country 6] in 2015 she confirmed she would be in danger if she returned to The Gambia.

    ·The current authorities would harm them because of their strong political views, including about environmental issues and as expressed on social media.

17. The applicant and applicant 2 each claim they have a well-founded fear of persecution in The Gambia arising from their political opinion, about the political climate of the country and environmental issues.

18. The delegate’s decision, provided to the Tribunal, shows the delegate:

    ·Considered the applicants could live safely in another ECOWAS country such as [Country 6], but did not make a finding on this issue.

    ·Accepted the applicant worked for several years as a [Occupation 1] in the [specified department] and moved to [Organisation 3] as [Occupation 2] in about October 2011.

    ·Accepted she voiced an opinion [during] a meeting, in which she queried the charges against [Mr A].

    ·Accepted she had been questioned by the [Organisation 2] but found this had been an isolated warning to a public servant to be loyal to government policies, had not caused her serious harm, and she was not again interrogated.

    ·Did not accept she was then subject to ongoing monitoring, or of ongoing adverse interest, in The Gambia.

    ·The delay in making an application raised credibility concerns.

    ·Found that [certain] information shows her boss [Mr B] had criminal charges dropped and was again working as a [Occupation 1] in The Gambia, and as he had a higher profile than the applicant it is difficult to see how she is at risk of harm due to events that occurred when she worked for him.

    ·The applicants did not have a right to enter and reside in [Country 1], [Country 7] or [Country 2].

    Evidence

19. The evidence before the Tribunal includes the following material (not all is listed):

    ·the applicants’ Protection visa application form lodged on 21 May 2014, which includes handwritten reasons for seeking protection in Australia

    ·passport pages, personal and schooling information

    ·country information

    ·letters, articles and a card that concern the applicant’s employment in The Gambia

    ·DFAT advice concerning termination of her [Scholarship] at [university]

    ·the Protection visa decision record (‘delegate’s decision’) dated 23 September 2016, which is the subject of this review, and a copy was provided to the Tribunal at the hearing on 13 June 2019

    ·the application for review

    ·letters and submissions including provided on 13 June 2019, [social media] posts

    ·letters of community support

    ·an RRT research response dated 18 July 2008, concerning ECOWAS, provided by them

20. The applicants appeared before the Tribunal to give evidence and present arguments, on 13 June 2019. The applicants spoke fluent English. At the start of the hearing I asked whether they were well and able to talk about their story, and they said they were. During the hearing the applicants appeared to fully understand questions and they each gave coherent answers and explanations. I assess that they were competent to give evidence and had a full opportunity to put forward their story and arguments.

    Findings and reasons

21. The applicants claim to be nationals of The Gambia. They have provided copies of their Gambian passports. All the available evidence, including the applicants’ oral evidence, documents from The Gambia, and their familiarity with The Gambia, support their claim to be Gambian nationals. As well, based on country information and my foregoing discussion I accept all of their children are Gambian nationals by birth. The Gambia is therefore the country of reference for the purpose of assessing the applicants’ protection claims, and the receiving country when assessing their claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicants’ evidence given at the hearing, I accept they have the identities claimed.

22. The applicant is a well-educated woman who has had work experience at a high level, including currently in Australia, and she comes from a wealthy family. Applicant 2 is educated and he has worked in a number of countries including currently in Australia. The applicants have close and extended family in The Gambia. They will ostensibly have access to family support in [City 1] in The Gambia.

    Returnees from Australia

23. Their passports have expired and at hearing the applicant stated they have not sought to renew them. Nonetheless, they are Gambian nationals who have documents to evidence their Gambian nationality, and their children who are not applicants are also Gambian nationals by birth, and they will be able to seek and get travel documents that will enable them all to travel to and enter The Gambia. When the applicants return to The Gambia they will be returnees from the West who have been away for a number of years and who have unsuccessfully sought Australia’s protection. However, as discussed at hearing, country information does not show that their profile and these circumstances will cause them any difficulties on their return.

24. A child of the applicants died soon after birth and is buried in Australia. At hearing the applicant stated that it would be difficult for them to leave the child here and return to The Gambia. I acknowledge that leaving the grave here would cause distress and grief to the applicants.  However, I do not accept this would lead to serious harm amounting to Convention persecution or to significant harm as defined in s.36(2A).

    ECOWAS

25. The delegate found that the applicant may have statutory effective protection in a third country (s.36(3)) because she could enter and reside in an ECOWAS country including [Country 6]. The Economic Community of West African States (ECOWAS) comprises 15 West African countries: Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.

26. Country information shows that in practice nationals of ECOWAS countries have visa-free entry and are permitted to stay for 90 days in all ECOWAS countries:

    ·The 2007 UNHCR report[2] showed in ‘Table 1 - Implementation of selected ECOWAS initiatives’ at page 5 that abolition of visa and entry requirements for 90-day stay had been implemented in all ECOWAS countries.

    ·The 2014 ACP Observatory on Migration/IOM report[3] stated in part that:

    In relation to the first phase (Right of Entry), all the 15 Member States have abolished visa and entry requirements for those staying up to 90 days. This means that Community citizens in possession of valid travel documents and international health certificate can stay in any ECOWAS member State for up to 90 days without any prior administrative or police formality linked to their stay.

    [2] UNHCR, Promoting integration through mobility: Free movement under ECOWAS, 1 December 2007, page 5-6, [ ACP Across Artificial Borders: An assessment of labour migration in the ECOWAS region, Research report 2014, page 66, [>

    In sum, country information shows that The Gambia nationals are able to enter all other ECOWAS countries without a visa and stay for 90 days. Nonetheless, in order to legally reside in an ECOWAS country beyond 90 days, a person must either apply for a residence card or permit, or seek Refugee status, and there is no automatic working right. As discussed at hearing, I am not satisfied that the applicants have a right to enter and reside in another ECOWAS country for the purposes of s.36(3).

    Her past employment in [Organisation 1] and a June 2011 meeting

27. In the application the applicant’s narrative centred on her past employment in [Organisation 1]. At a meeting in June 2011 she claims she voiced an opinion [during] a meeting, and this led her to be interrogated that evening by [Organisation 2], and then secretly monitored.

28. At hearing the applicant gave a credible and consistent account of her work as a [Occupation 1] in [an organisation] and then at [Organisation 1] in the [specified department]. Her employment is supported by Gambian documents and articles she provided. I accept she was a [Occupation 1] in June 2011 when she spoke at a meeting attended by several staff including the [Official 1], and expressed her doubts about [Mr A]. I accept this led to her being interrogated by [Organisation 2] that evening, and that when she hesitated in answering some questions was slapped a couple of times. I accept she was taken off [certain work] and moved to [another area], and in October 2011 she got a job working as [Occupation 2] in the [Organisation 3]. I accept she was secretly monitored by [Organisation 2] as I accept that the applicants observed a plateless vehicle parked near their home, albeit their evidence is that this was just on a few occasions (the husband said at hearing he saw the vehicle twice) and when the husband drove her to work the vehicle did not follow them.

29. Nonetheless, I do not accept that she was then of ongoing adverse interest to the Gambian authorities including [Organisation 2], up to the time she departed for Australia in May 2013. As I pointed out at hearing and based on her evidence, she had not been politically active and her comment at a meeting, [interrogation] and brief monitoring was an isolated occurrence that was not repeated in the period she worked in [the new area] (June to October 2011), or when she worked at [Organisation 3] from October 2011 and up to her departure from The Gambia in May 2013. As well, in that time she was able to travel to [Country 4] (May 2012) and [Country 5] (October 2012) and return to The Gambia without difficulties. Then in November 2012, [she] was able to travel to [Country 2] for a meeting ([details deleted]) and then return to The Gambia in April 2013 without difficulties. While I acknowledge that her trips to [Country 4] and [Country 5] were taken to facilitate her goal of coming to Australia, she nonetheless chose to return to The Gambia and this does not support her claim to have feared harm from the authorities in 2012. She was accepted for an [Scholarship] as she was supported by [Organisation 3] that granted study leave with salary. She stated the fact that the agency contacted [her] University and not her to check on her studies showed they had been directed to do so by the authorities, however, as I pointed out in light of their support it is reasonable that the agency would have an interest in her studies and when she was free to return to The Gambia. I do not accept the agency’s liaison directly with the University shows the authorities had an adverse interest in her.

1. In May 2013 the applicant arrived in Australia to study, and her family joined her in September 2013. The applicant claims that after one of her former bosses, [Official 1] [Mr B], had been arrested and jailed for [a specific offence] ([details deleted]), in October 2013 a close friend at [Official 2’s] office told her: [Official 2] considered the Department had not done a good job to [deal with] [Mr A] and that [Mr B] [details deleted]; [Official 2] was furious he had to [deal with] [Mr B]; and the applicant’s name was mentioned. The friend believed that the applicant would be arrested if she returned. She also claimed she had been told that men/security agents had visited the family home and the agency asking about when she was expected to return; and when she was in [Country 6] in mid-2015 she received reliable information that it would be unsafe for her to [return].

2. In light of country information about the former President Yahya Jammeh and his rule over The Gambia, I cannot discount the possibility that in late 2013 the President’s office had a renewed interest in [certain] [people]. This is despite the applicant’s sole indiscretion having already been investigated, and she had been taken out of the [work] [regarding Mr A], and she had been able to reside in The Gambia without harm from June 2011 to May 2013. I cannot discount the possibility that this renewed interest led the authorities to investigate when the applicant was due to return to The Gambia and led people to warn the applicant not to return.

3. However, as discussed at hearing, country information shows that the former President Yahya Jammeh has departed and the human rights climate in Gambia improved dramatically as the new president, Adama Barrow, and his government has taken steps to reverse former President Yahya Jammeh's legacy of authoritarian and abusive rule. My discussion at hearing encompassed the Human Rights Watch World Report 2018- Gambia[4] of 18 January 2018 that stated in part:

   Following his defeat in the December 1, 2016 presidential election, Jammeh initially conceded defeat and promised to peacefully cede power to Barrow. Eight days later he rejected the results "in totality" and called for new elections, holding on to power despite widespread condemnation from ECOWAS, the African Union, and the UN. The security forces arrested soldiers perceived as loyal to Barrow, closed independent radio stations and detained opposition supporters, causing many to flee the country. Barrow himself left Gambia on January 13 and was sworn in as president in Dakar, Senegal, on January 19.

   On January 20, after a last attempt at mediation by regional leaders and with ECOWAS troops at the Gambian border, Jammeh agreed to step down and left for Equatorial Guinea the next day. Barrow returned to Gambia on January 26 and was officially inaugurated February 18.

   Gambia held peaceful legislative elections on April 6, 2017, with most seats won by the United Democratic Party (UDP). Barrow was a UDP member when he was elected to head the opposition coalition during the 2016 presidential elections.

   [4] [>

   I put to the applicant at hearing, that the [Official 2’s] view that the [dealings with] [Mr A] (at [Official 2’s] direction) had been mishandled by [people] including the former [Official 1] [Mr B] and others in [Organisation 1], was no longer relevant to the applicant because [details deleted]. The applicant responded that the authorities and the security people will not forget and will continue to seek to re-investigate and harm her. She stated that the appointment of the former [person] who had been responsible for her arrest and for human rights abuses had been appointed [to another organisation] and other [details deleted].

4. However, while I acknowledge country information shows President Barrow and the government has reappointed former officials, I find unconvincing the applicant’s claim that the authorities [will] continue to have an adverse interest in her. In the applicant’s narrative that I accept, the renewed interest in the applicant in late 2013 arose because [Official 2] considered the Department had not done a good job [in dealing with] [Mr A] and that [Mr B] [details deleted]; [Official 2] was furious he had to [deal with] [Mr B]; and the applicant’s name was mentioned- and this caused a friend to believe that the applicant would be arrested if she returned. But with the departure of the former President in January 2017, the election of President Barrow, and the election of the new United Democratic Party government in April 2017, the instigation for the applicant to be re-investigated for her role in a 2011 [incident] and for her possible views [has] also gone. In sum, I do not accept there is a real chance that the occurrence in June 2011, now eight years in the past and during the rule of the former President, will cause the applicant to come to the adverse attention of the Gambian authorities or cause her to face serious harm, now and in the reasonably foreseeable future.

5. The applicant does not claim, despite ample opportunity, that any work she did in The Gambia before she departed, will cause her any difficulties or harm from any agents if she returns. Based on the material before the Tribunal I find there is not a real chance her past employment and [work] will cause her serious harm (or a real risk of significant harm for the purposes of complementary protection) if she returns, now and in the reasonably foreseeable future.

   Her non-completion of her Australian studies

6. While there may reasonably be repercussions for her non-completion of her studies in Australia as they had been supported by [Organisation 3], she does not claim despite ample opportunity, this will cause her any difficulties or harm from any agents if she returns. Based on the material before the Tribunal I find there is not a real chance the non-completion of her studies in Australia will cause her serious harm (or a real risk of significant harm for the purposes of complementary protection) if she returns.

   Their political opinions and social media

7. In submissions and at hearing the applicants claimed they faced harm in The Gambia because of their strong political views and as expressed on social media. They claimed they are very passionate about the political climate in The Gambia and they would not hesitate to speak out about issues there, including significant issues such as the President needs to step down after three years as he originally agreed, and that a Chinese factory given a licence by the government is destroying the local environment. They provided country information that included: in early 2018 some youth had been arrested and detained after protesting against the Chinese factory; a Gambian lecturer had been charged with an offence of jeopardising national security in February 2018 (albeit he was released after a protest); former officials had been reappointed including to the SIS and Army; the President had expressed his intention to stay in office beyond December 2019 and stated how powerful he was; 15 protesters had been arrested for calling out the government; the political climate remains insecure; an Amnesty report dated 2 May 2019. They claimed that there are still in place restrictive laws to prevent peaceful protest and criticism of authority, arbitrary arrests, Amnesty International have expressed concern about the general human rights situation there, and “Although there has been recent significant changes in The Gambia, the fact remains that these changes have not been fundamental or substantial and are unlikely to be durable.” Applicant 2 provided copies of his [social media] posts to support his high level of interest and online activism. As I pointed out at hearing, his selection of posts appeared to show he often agreed with/reposted other people’s political/social posts.

8. I have carefully considered the country information and reports provided/referred to by the applicants. As discussed at hearing these reports show there have been incidents in The Gambia of some arrests and detention, nonetheless, the Amnesty International report they provided shows that Amnesty has been able to make representations to the President and government and shows that Amnesty also noted the major progress made in the two years since the President’s inauguration. As also discussed, country information[5] from authoritative sources shows the political, social and security situation in The Gambia has significantly improved in recent years since the change of government. My discussion encompassed the US report on The Gambia, and selections from that report show:

   [5] United States Department of State, 2018 Country Reports on Human Rights Practices: The Gambia, 13 March 2019, [ Freedom House article, World Report 2018 – Gambia, 18 January 2018, [ in prior years, there were no reports the government or its agents committed arbitrary or unlawful killings.

   ·There were no reports of disappearances by or on behalf of government authorities.

   ·c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The constitution and the law prohibit such practices, and there were no confirmed reports that government officials employed them during the year.

   ·d. Arbitrary Arrest or Detention. The constitution and law prohibit arbitrary arrest and detention and provide for the right of any person to challenge the lawfulness of arrest or detention in court. Unlike in prior years, security forces did not arbitrarily arrest citizens and the government generally respected citizens’ rights.

   ·Unlike in prior years, there were no reports of impunity involving the security forces during the year. Civilian authorities maintained effective control over the Gambia Police Force and the Gambia Armed Forces, and the government has effective mechanisms to investigate and punish abuse.

   ·The law requires authorities to obtain a warrant before arresting a person, but police officers often arrested individuals without a warrant. Military decrees enacted prior to the adoption of the constitution in 1997 give the National Intelligence Agency and the interior minister broad powers to detain individuals indefinitely without charge “in the interest of national security.” Although these detention decrees are inconsistent with the constitution, they were not legally challenged. The government claimed it no longer enforced the decrees, but such detentions occasionally occurred.

   ·The law provides for the right to a fair and public trial, and an independent judiciary generally enforced this right. Criminal defendants were presumed innocent until proven guilty. Officials did not always properly inform defendants of the charges against them. The law provides for a trial without undue delay; however, case backlog hampered the right to a timely trial. Defendants enjoyed the right to be present at trial and to communicate with an attorney of their choice or if indigent and charged with a capital crime to have a lawyer at public expense. Defendants had adequate time and facilities to prepare a defense. Officials provided free interpretation in defendants’ local languages as necessary from the moment charged through all appeals. Defendants and their lawyers had the right to confront prosecution or plaintiff witnesses and present their own witnesses and evidence. Defendants may not be compelled to testify or confess guilt. They may appeal verdicts to a higher court.

   ·Unlike in prior years, there were no reports of political prisoners or detainees.

   ·f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence. The constitution prohibits such actions, and there were no reports that the government failed to respect those prohibitions.

   ·The constitution and law provide for freedom of expression, including for the press, and the government generally respected this right. An independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of expression, including for the press.

   ·The government did not restrict or disrupt access to the internet or censor online content, and there were no credible reports that the government monitored private online communications without appropriate legal authority. According to the International Telecommunication Union, 19.8 percent of the population used the internet in 2017.

   ·The law provides for the freedoms of peaceful assembly and association, and the government generally respected these rights.

9. At hearing my discussion also encompassed the Freedom House report[6] published 1 November 2018 that states in part:

   Introduction:
   Internet freedom in The Gambia improved remarkably in the past year as internet users experienced less restrictions under President Adama Barrow, who came to power following the presidential elections in December 2016.
   Since then, conditions for internet and press freedom have improved. All previously blocked websites and communications platforms have become accessible, while independent journalists and netizens working to push the boundaries of free expression from within the country have re-emerged after decades of severe self-censorship or exile.
   The new administration has also announced general legal reforms aimed at strengthening individual freedoms. In June 2017, the new attorney general and minister for justice conceded at the Constitutional Court that sedition – a law that had been frequently used to silence journalists and critics under the former regime – was unconstitutional. In May 2018, the Gambian Supreme Court, in a landmark judgement, declared parts of the infamous ICA unconstitutional. Justices struck down criminal defamation, and narrowed the definition of sedition to apply only to "the person of the president" and "administration of justice." However, the ICA still criminalizes the spread of false news online.
   

   [6] Freedom House report, Freedom on the Net 2018 - Gambia, The, 1 November 2018, [ the improvements, Barrow has shown some signs of following his predecessor's footsteps with a few arrests and prosecutions for online activities in the past year. In February 2018, Ismaila Ceesay, a political analyst and political science lecturer who has emerged as a prominent critic of the Barrow administration, was arrested, detained, charged and released for comments he made to a local newspaper, which were published both online and in print. Separately, a group of soldiers stood trial in 2018 for treason in relation to messages in a WhatsApp group; the nature of the allegations against them is unclear, and the trial process has been opaque.

10. The US report published in March 2019 shows that broadly, Gambian nationals have freedom of expression, including for the press, and freedoms of peaceful assembly and association, and the government generally respected these rights. Indeed, many of the press reports provided by the applicants support this assessment. While there have been reports of protestors arrested, the reports show the arrests appear to have been done within the law. The applicants have pointed to their social media discussion of political issues, but the US report shows the government did not restrict or disrupt access to the internet or censor online content, and there were no credible reports that the government monitored private online communications without appropriate legal authority. The Freedom House report shows conditions for internet and press freedom have improved albeit there have been a few arrests and prosecutions for online activities in the past year. In sum, I accept that the applicants have political views and as expressed by applicant 2 on social media. However, authoritative reports show they will be able to continue to express their political, social and environmental views, including on social media, in The Gambia now and in the reasonably foreseeable future. Having considered their past and current profiles and circumstances, and their current political activism, and their claims of how they would express their political views in The Gambia, I do not accept there is a real chance or real risk they will be harmed in The Gambia because of their actual or imputed political views, and as expressed in public and on social media, now and in the reasonably foreseeable future.

    Conclusion

11. Having considered the claims and evidence I find that the applicants (and all of their children) are Gambian nationals. As Gambian nationals they will be able to obtain travel documents to enable them to travel to and enter The Gambia. I do not accept their family unit will be separated if the applicants are required to depart Australia. When I consider all of the applicant’s personal circumstances and all of my findings about her narrative and evidence together, I accept that in the past the applicant faced adverse attention by the security services in The Gambia. However, I do not accept there is a real chance that the occurrence in June 2011, now eight years in the past and during the rule of the former President and his administration, will cause the applicant to come to the adverse attention of the Gambian authorities or cause her to face serious harm, now and in the reasonably foreseeable future. Based on the material before the Tribunal I find there is not a real chance her past employment and [work], or her non-completion of studies, will cause her serious harm (or a real risk of significant harm for the purposes of complementary protection) if she returns. I accept that the applicants have political views and as expressed by applicant 2 on social media. However, authoritative reports show they will be able to continue to express their political, social and environmental views, including on social media, in The Gambia now and in the reasonably foreseeable future. I do not accept there is a real chance or real risk they will be harmed in The Gambia because of their actual or imputed political views, and as expressed in public and on social media, now and in the reasonably foreseeable future. I do not accept the applicants have a well-founded fear of persecution in The Gambia arising from their political opinion, about the political climate of the country and environmental issues as they claim.

    Refugee criterion

12. In light of the above assessment, and having considered all of their circumstances individually and cumulatively, the Tribunal finds that in The Gambia the applicants do not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons they claim or for any reasons. The Tribunal finds that in The Gambia the applicants do not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicants do not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if they return to The Gambia.

13. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

14. I considered whether on the evidence before me, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to The Gambia, there is a real risk that the applicant/s will suffer significant harm. For the reasons set out above, I have not accepted there to be a real chance that the applicant/s will suffer serious harm if they return to The Gambia, now or in the foreseeable future. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant/s will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicants being removed from Australia to The Gambia.

1. In sum, I find there is no real risk that they will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicants, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that they will suffer arbitrary deprivation of her life or the death penalty. I am not satisfied the applicants will be subject to significant harm for any reason if they are removed/return to The Gambia.

   Overall Conclusion

2. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

3. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. There is no suggestion that any of the applicants satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).

   DECISION

5. The Tribunal affirms the decision not to grant the applicants Protection visas.

6. The Tribunal finds it has no jurisdiction in respect of the daughter.

   C. Packer
   Member

   
   

   ATTACHMENT  A – RELEVANT LAW

   The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee

   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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

   Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection

   If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Mandatory considerations

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.