1620593 (Refugee)

1620593 (Refugee) [2017] AATA 2143 (31 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620593
COUNTRY OF REFERENCE:                  Liberia
MEMBER:Christopher Smolicz
DATE:31 October 2017
PLACE OF DECISION:  Adelaide
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 31 October 2017 at 11:25am

CATCHWORDS
Refugee – Protection Visa – Liberia – Federal Circuit Court dismissal – Federal Court remittal – Imputed political opinion – Liberian Civil War – Justice against war criminals – Torture – Fear of persecution – Fear of violence – Bogus documents – Economic Community of West African States
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
AZAFH v MIBP [2016] FCA 1363
SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43
WAGH v MIMIA (2003) 131 FCR 269
Applicant C v MIMA [2001] FCA 229
Kola v MIMA [2001] FCA 630
MIMA v Applicant C (2001) 116 FCR 154
Kola v MIMA (2002) 120 FCR 170
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Liberia, applied for the visa [in] June 2013 and the delegate refused to grant the visa [in] January 2014.
The applicant applied to the Refugee Review Tribunal (RRT) to review the delegate’s decision. On 9 July 2014 the RRT affirmed the Department’s decision not to grant the applicant a Protection visa (first Tribunal decision).[1]
[1] RRT decision file ref.1402017
The applicant sought judicial review of the RRT decision to the Federal Circuit Court of Australia. The Federal Circuit Court dismissed the application for judicial review.
The applicant applied to the Federal Court of Australia. [In] November 2016 the Federal Court set aside the decision. The Federal court held the first Tribunal fell into jurisdictional error because it misunderstood the appellant’s evidence and therefore the basis on which he claimed to fear persecution or serious harm. The court found the first Tribunal failed to correctly construe and consider an essential integer of the appellant’s claim, namely, that the past attacks were targeted against him. If the integer was accepted this may have justified concluding that he had established that his fear was well founded.[2]
[2] AZAFH v MIBP [2016] FCA 1363 Federal Court of Australia, Perry J, SAD 167 of 2016, 17 November 2016
Accordingly, having been remitted to the Tribunal from the Federal Court the matter was brought back before the Tribunal for reconsideration.
The applicant appeared before the Tribunal on 19 September 2017 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.
Issue
The central issue advanced by the applicant is whether he meets the refugee criteria or comes within Australia’s complementary protection obligations because of his imputed political opinion.
Following the approach set out by the FCFCA[3], the first issue in this case is for the Tribunal to determine whether the applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2) (well-founded fear of persecution).
[3] SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 per Tracey & Griffiths JJ at 10
Specifically, the applicant claims to fear persecution in Liberia because of his imputed political opinion as a victim of the Liberian civil war. If the answer to that question is in the affirmative the second issue for the Tribunal to determine is whether the applicant has a right to enter and reside in a third country apart from Australia as prescribed by s.36(3) (third country protection). In particular the issue in this case is whether the applicant has a right to reside in another country within the Economic Community of West African States (ECOWAS). If s.36(3) applies the third issue the Tribunal must then determine is whether one or more of the qualifications contained in sub-sections (4), (5) and (5A) limit the operation of s.36(3) (qualifications).
Background
The applicant arrived in Australia [in] November 2012. He travelled to Australia on a [temporary visa]) as part of [details of employment]. He entered Australia on an “Official Passport” of Liberia.
Summary of claims and evidence
The Tribunal sets out the claims and evidence advanced by the applicant to engage Australia’s protection obligations. The applicant’s claims and evidence are succinctly set out in the first Tribunal’s decision record at paragraphs 6 to 22. The relevant sections are detailed below:
Refugee Claim on Basis of Imputed Political Opinion
6.        The applicant was born on [birth date] in [City 1], [County 1] in Liberia. He has not lived elsewhere in Liberia. He is Christian. He fled Liberia in 1992 and, while fleeing, his father was [injured], his [sister] was [severely assaulted] and the applicant was tortured by National Patriotic Front of Liberia (NPFL) rebels. The applicant states that he recognises [Mr A], who was a [senior official] in the NPFL under Charles Taylor, as one of those responsible for his father’s death. The applicant states that he has heard that [Mr A] is now dead but he fears that [Mr A’s] son and former rebels will kill him if he returns to Liberia.
7.        The applicant fled Liberia in October 1992 through [details of escape to Country 1]. He was transferred by the United Nations Refugee Agency (UNHCR) to [Town 1] outside [details of location] and lived there from 1993 to 2007, except for a 6 month period between 2002 and 2003 when he returned to Liberia only to flee again after the capital was attacked. He completed primary school at a refugee school in [Town 1] in [year].
8.        The applicant moved back to Liberia in 2007 until [year] to attend [High School] in [City 1]. The applicant claimed that in 2007 he encountered the son of [Mr A], [Mr B], and he threatened to kill him. He understood this to be a threat to cover up the killing of his father, [assault] of his sister and torture of him and family members during the war. A few months after this threat, the friend who was hosting him had his house ransacked.
9.        The applicant stated that he had a [relative] from his father’s side, [Mr C], who was killed [in] 2008 in Monrovia. He was in his final year of [studies] at the time. Unknown men went to his house while he was studying. He said that no evidence has been found relating to who committed the crime. The applicant believes that former rebels linked to [Mr A] killed him because he was [studying] and in a position to take revenge for his father’s death by taking a case against those responsible.
10.      After completing high school in Liberia, the applicant decided to return to [Country 1] from 2010 to 2011. He stayed with a man he had met when he fled to [Country 1] the first time during the war. He found conditions in [Country 1] difficult as a Liberian. He had done an apprenticeship to be a [occupation] but it was hard to find work. Also, he found that Liberians would be held responsible if something went wrong.
11.      The applicant stated that he returned to Liberia from 2011 to 2012 and was staying sometimes with his friend [name] and at other times with other people because there were people that would threaten them at the house, which happened [a number of] times in 3 years and [number of times] when he was home. He said that in 2012 armed men came to the house when he was home and asked for everybody who was living there, beating some of the occupants and [severely injuring one]. He said he did not see the attackers because he was [hiding]. The Tribunal asked if it was generalised violence or targeted against him. He said that it was generalised violence but he feared for his life. The applicant said that he suspects the attackers were targeting him. He said there was no point reporting the incident to the police because they would not do anything.
12.      In 2011 the applicant helped a friend in Liberia, [name], with his campaign to become a [public official]. This friend helped him to get an official passport to travel to Australia.
13.      Regarding the applicant’s family in Liberia, he stated that his mother returned from [Country 1] to Liberia in 2010 to live in [City 1]. He said that he does not know where his siblings are, as he last saw them at the border between [Country 1] and Liberia in 2010. At the beginning of 2014, armed men went to his mother’s house. She was not home at the time but was at [an event] in [location]. The applicant stated that the men were asking for her because she is his mother, and that they are former rebels who can kill his mother at any time.
14.      The applicant believes that the son of [Mr A], [Mr B], is targeting him now. He said that [Mr A] knew that his father was working as [occupation] prior to his death in 1992 because [Mr A] used to visit his family near the home of the applicant’s father. The applicant said that he thinks that [Mr A], prior to his death [a number of] years ago, told his son about the applicant. He said that [Mr B] and former rebels will try to kill him because they think that the applicant will take a case against [Mr A] to try to seek justice for his father’s death. He stated that he knows that the Truth and Reconciliation Commission findings are finalised but that there may be another committee set up to seek justice for crimes committed during the war. He said he has no interest in seeking justice but the former rebels will think that he wants to take revenge and that they will be punished.
Refugee Claim on the Basis of Religion
15.      While living in [Country 1] as a refugee, the applicant met a Liberian woman, [Ms D], in 1996 and they had a de facto relationship for 14 years. They had [a number of] children together: [names and birth dates of children]. The applicant stopped seeing [Ms D] in 2010. [A number of] children live with the applicant’s mother, and [a number are] living with her mother, [Ms D].
16.      The applicant states that [Ms D]’s parents are separated and he first met her father in 2010 in Liberia, after his former father-in-law returned from [country]. The applicant’s former father-in-law is Muslim and was not happy that his daughter was together with a Christian man. The applicant’s former father-in-law never threatened the applicant directly but he threatened his daughter. He took her to live with him, and he wanted her to marry a Muslim man. The applicant stated that his ex-partner told her father that she still wanted to be with the applicant, and she left for [Country 1].
17.      The applicant stated that his former father-in-law will start at a low-level and then take things seriously. He wants to take custody of his children. He explained that his mother told him that the former father-in-law had been to visit her and said that he wants the children and wants them to convert to Islam. The applicant stated that he fears that his former father-in-law might kill his ex-partner [Ms D]. When the Tribunal asked what the applicant fears directly, he said that his former father-in-law could organise for a religious group to get rid of him.
…….
22.      On 13 June 2014, the Tribunal received a post-hearing fax from the applicant’s representative, which included records of conversations [in] June 2014 between the representative and: [the applicant’s mother in Liberia]); [Ms D] (the review applicant’s ex-partner) in [Country 1]; and [name] (friend who the review applicant stayed with in Liberia). The representative noted that the telephone reception was poor and that the applicants had no access to send an email identification to confirm their identity.
New evidence
Prior to the hearing the applicant provided the Tribunal with a statutory declaration in which he provided further evidence in support of his claim which was not before the first Tribunal or delegate.
The applicant declared that he had received information from Liberia that his [son] was beaten and his [relative] [severely assaulted] in an attempt to locate him and reiterate the threats against him. The applicant and his family believe the men who attacked his son and [relative] are the same men who are associated with [Mr B]. The applicant claims that one of his friends called him after the incident and told him his son was beaten. He subsequently spoke to his son about the incident. In support of his claims the applicant provided photographs of the injuries sustained by his son.
In post-hearing submissions the Tribunal was also advised that the applicant had attempted to speak to [his son] prior to the hearing but was unable to make contact. The Tribunal was advised that [in] September 2017 the applicant’s agent managed to conduct a short interview with [the applicant’s son]. The Tribunal was provided with a transcript of the conversation in which [the applicant’s son] states that he was beaten in April 2016 by a group of men who have been looking for his father. He claims the men are always coming and want to know where his father is. He went to a medical clinic to obtain treatment. He claims the police asked for money before they would come out to scene of the incident. He could not afford to pay the police.
According to the passport the applicant’s profession is described as [government occupation].” The Tribunal questioned the applicant about his Official Liberian passport and employment at the hearing. The applicant admitted that he fraudulently obtained the passport through a friend who is a [public official]. He claimed he never worked for Liberian government or the Liberian public service. The delegate formed the opinion that the passport was genuine because it was issued by the Liberian government and the applicant was immigration cleared in Australia.
The Tribunal notes that the passport purports to have been issued after he was granted the visa and arrived in Australia. Specifically the Tribunal notes that visa was granted [in] November 2012. The passport purports to have been issued on [in] 2012 and the expiry date is [2014]. Tribunal finds that that the passport is a bogus document and that the applicant has never worked for the Liberian government/public service.
The Tribunal questioned the applicant about the violent incidents which occurred in Liberia between 2007 to 2016 which he claims demonstrate that he is a person of interest to [Mr B] and his life is still in danger in Liberia. The applicant expanded on his evidence and maintained that the incidents were not random. He claims they were targeted attacks where the rebels were looking for him. He maintained that his brother ([Mr C]) was killed in 2008 because he was [studying] and was seen as a threat to the rebels.
The Tribunal questioned the applicant about his connection with [Mr A] and his son ([Mr B]). The applicant said that [Mr A’s] family were well known to him because they [lived close together]. The applicant said that [Mr A’s] father worked [with] [a relative].
The Tribunal noted the applicant said that his father was killed in 1992 which was about 25 years ago. The Tribunal notes that [reports] have confirmed [Mr A] died in [year]. The applicant maintained that [Mr B] was part of the rebel group. [Mr B] now fears the applicant will take retribution and there will be financial consequences. The Tribunal asked the applicant when he last saw [Mr B]. The applicant claimed that he saw [Mr B] in 2003, 2007 and 2011. He is unsure of the dates because it was some time ago. He was able to physically describe [Mr B] to the Tribunal. He said that [Mr B] worked as [occupation].
The Tribunal noted that a Truth and Reconciliation Commission (TRC) was established in Liberia to investigate human rights violations committed during the Liberian civil war. The Tribunal questioned the applicant about his involvement in the TRC. The applicant said that he did not get involved at the time because he was too afraid. He said that the people on the TRC were the same people who committed the atrocities during the civil war. The applicant said that he believed that the TRC may be re-established in the reasonably foreseeable future and there would be consequences for those implicated in his father’s death and that is why they want to silence him.
The Tribunal notes that provisions for witness protection were included in the 2005 legislation that established the TRC, but reports indicate that there was no comprehensive protection program in place during the TRC’s period of operation and only limited protections were available to witnesses. [4]
[4] Liberia – Towards the final phase of the Truth and Reconciliation Commission’, Amnesty International, AFR 34/002/2008, 29 July 2008, p.23, CIS956B8881678; ‘Report on the Human Rights Situation in Liberia: November 2007 – June 2008’, UN Mission in Liberia, December 2008, p.22, CIS23690

The Tribunal has had regard to country information and accepts that many victims of the Liberian civil war feared retribution and did not speak out before the TRC.
The Tribunal asked the applicant that if he were to return to Liberia whether he would seek justice for the death of his father and the atrocities committed against him and his family. The applicant maintained that at present he was too frightened to seek justice because he would be killed. He does not want revenge. It was evident to the Tribunal that the applicant was genuinely fearful at the prospect of engaging with the authorities in Liberia over his father’s death and the war time atrocities committed against him and his family.
In post hearing submissions, in response to the Tribunal’s questioning, the applicant provided a statutory declaration dated [in] September 2017 in which he confirmed that he may try to seek justice for his family if he returned to Liberia. The applicant believes that legally he is obliged to give evidence of the past atrocities committed in Liberia, particularly those experienced by him and his family members. He claims he would be very scared and he does not believe he would be in a position to achieve justice in Liberia. He fears it would be difficult to approach the TRC because there would be spies or there would be former rebels on the tribunal. He claims that if a new TRC was established [Mr B] and his associates would be very worried and it will place them in an embarrassing position because of the past atrocities committed by [Mr A] and his associates. He claims that they fear being punished for the past actions and may face going to jail. He claims [Mr B] and his associates do not want another TRC and they do not want to be questioned about the past. The applicant claims that they continue to be motived to get rid of all evidence that can be used against them.
Country of reference – Receiving country
The evidence before the Tribunal is that the applicant is a citizen of Liberia, having been born in [City 1], [County 1], Liberia where his family also resided before being displaced by the war about early 1990.
The Tribunal finds on the basis of the available evidence that the applicant is a citizen of Liberia, that Liberia is the applicant’s country of reference for the purposes of the refugee assessment and the receiving country for the purpose of the complementary protection assessment.
Does the applicant have a well-founded fear of persecution?
On appeal in this matter, the Federal Court observed that the first Tribunal accepted the applicant’s oral evidence in its entirety. However, the first Tribunal found the applicant’s subjective fear of being targeted by [Mr A’s] son ([Mr B]) did “not meet the threshold of a ‘real chance’ but rather it is speculative and remote” for two main reasons. First, it was not plausible that [Mr A’s] son or his associates would want to kill the applicant in case he wanted to seek justice for this father’s death. Secondly, the first Tribunal was not satisfied that the applicant’s past experiences in Liberia demonstrated that he will be harmed by former rebels.[5]
[5] AZAFH v MIBP [2016] FCA 1363, Perry J, SAD 167 of 2016, 17 November 2016 at [12]
In assessing the applicant’s claims the Tribunal accepts that his past experience has made it difficult for him to recount aspects of his evidence and it was clear that at times during the hearing the applicant was overcome by emotion when asked to recall past events. The Tribunal concurs with the findings of the first Tribunal and finds that his oral evidence was broadly consistent with evidence provided to the Department in support of his application and that when there were discrepancies the Tribunal has not drawn adverse inferences.
The Tribunal accepts that the applicant’s father was [occupation] and that the family fled Liberia in 1992 after the outbreak of civil war. The Tribunal accepts NPFL rebels under the command of [Mr A] tortured the applicant, killed his father and the rebels [assaulted] the applicant’s [age] year old sister. [6] The Tribunal accepts that the applicant, from a young age, was exposed to many atrocities and human rights violations committed during the civil war which are further detailed in his statement of claim and it is unnecessary to repeat them in the decision record. The Tribunal finds the applicant’s claims and evidence are consistent with country information about the atrocities committed during the Liberian civil wars.
[6] [Source deleted].
In assessing the applicant’s claims the Tribunal accepts that the applicant and his family are victims of the Liberian civil wars and political conflict. In particular, the Tribunal finds that the applicant’s claims need to be viewed against the human rights violations committed during Liberia’s civil wars and the current October 2017 elections and the foreseeable handover of presidential power in January 2018.[7]
Human rights violation – accountability – reconciliation
[7] [Source deleted].
The Tribunal has had regard to country information and finds that although a Comprehensive Peace Agreement concluded in August 2003 to end the armed conflict in Liberia and specified the establishment of a TRC the underlining political and ethnic divisions are present to this day and are relevant in assessing the applicant’s claims. Liberia's history demonstrates that the failure to address impunity following the 1989-1996 armed conflict not only resulted in continuing human rights abuses but was also a major contributor to the second war, which lasted from 1999-2003.[8]
[8] Amnesty International, Liberia: Truth, Justice, Reparation for Liberia's Victims, 15 February 2007, AFR 34/001/2007, available at: 25 October 2017]
In 2016 the UN Security Council also observed that was there was almost total impunity for past and present human rights violations and abuses committed in Liberia. It was observed that an assessment of Liberia “must be placed in its historical context, including the legacy of more than a century and half of constitutionally enshrined exclusion of the vast majority of the population, a quarter of a century of political crisis and 14 years of successive, brutal civil wars that devastated the people of Liberia and destabilized the region.”[9]
[9] UN Security Council, Special report of the Secretary-General on the United Nations Mission in Liberia, 15 November 2016, S/2016/968, available at: >
The UN Security Council observed that the “the root causes of Liberia’s conflict remain unaddressed in the absence of meaningful national reconciliation, accountability or human rights violations and abuses, or efforts to develop a shared sense of nation among all Liberians.”[10]
[10] ibid., para 13
Surveys conducted by the Catholic Relief Services (CRS) for the Catholic Bishops’ Conference of Liberia disclose that the vast majority of Liberians believe that the main perpetrators of violence escaped punishment, and that the victims of violence have largely been denied justice. [11] Relevantly it was reported that “Almost two-thirds (62.9%) of surveyed felt that the victims of civil war violence still do not feel safe. Liberians widely perceive (68.3%) that the organizers and perpetrators of the violence did not genuinely participate in truth telling and reconciliation. They feel that the guilty parties shirked their responsibility, denied wrongdoing, and did not show genuine remorse. Worse still, some of them secured positions of power as senators, representatives and government officials, and have even boasted about their wartime “accomplishments”. [12]
[11] State of Peace, Reconciliation and Conflict in Liberia; Catholic Relief Service, Catholic Bishop’s Conference Liberia 2016. Ibid p.9

The CRS report concludes that “Reconciliation did not reach deeply and widely enough to rebuild the torn relationships within and between ethno-regional groups. In the eyes of many Liberians, the elites manipulated the Truth and Reconciliation Commission to absolve themselves of wrongdoing and to gain political advantages.”[13]

TRC recommendations

[13] >

The Tribunal notes that although TRC presented its final report in mid-2009 the recommendations are still relevant and need to be seen in the context of the current Presidential elections. For example, one of the recommendations of the TRC was for the current President Johnson-Sirleaf to be prosecuted and barred from running for office because she had been a supporter of Charles Taylor’s insurgency.[14] The TRC also recommended a reparation program of $US 500 million over a period of 30 years. It states that “within the first 5 years (July 1, 2009 - July 30, 2014) all direct victim support programs must be implemented including memorials, victim support, and the process of prosecution.” The reparations recommendations include a wide range of mental health, physical health, economic, educational, and infrastructural services to both individual and community victims of the conflict. [15]

[14] Political Handbook of the World, Liberia 2015 p 848

[15] Beyond the Truth and Reconciliation Commission: Transitional Justice Options in Liberia, International Centre for Transitional Justice, 2010

The Tribunal finds that TRC recommendations would be seen as a clear threat to members of the NPFL and those implicated in the past abuses and war crimes. For example, Freedom House reported that in September 2014, a, a former commander of the NPFL rebel group, was arrested in Belgium for atrocities committed during the civil war. Belgian authorities made the arrest on behalf of three Liberian victims. However, Liberia has yet to bring charges against anyone involved with the civil wars.[16]

[16] >

It was submitted by the applicant’s representative that the country information also supports the possibility of re-establishment of a TRC or war crimes tribunal in Liberia post the October 2017 Presidential elections. The Tribunal was referred to a media report that confirms that Liberian presidential candidate for the All-Liberian party, Benoni Urey has promised to set up a war crimes tribunal to bring closure to victims of civil war in Liberia. [17]

[17] Liberian presidential candidate promises war crimes tribunal for justice; 21 August 2017, >

In assessing whether the applicant has a well-founded fear of persecution, the Tribunal finds that the almost total impunity for past and present human rights violations committed in Liberia and the possibility that reconciliation measures will be expanded in the future, will place a person with the applicant’s profile in the political spotlight and therefore in greater risk of harm if he was to return to Liberia in the reasonably foreseeable future.

The Tribunal further accepts that the applicant, although fearful of the consequences, is motivated to take action and pursue justice for past war crime atrocities committed against him and his family if he was to return to Liberia in the reasonably foreseeable future.

Current political climate

In assessing the applicant’s fear of persecution the Tribunal has also had regard to the current presidential elections.

In addressing the “electoral pitfalls” in Liberia Freedom House has report:

….Sirleaf herself played a role in the civil wars, her administration ignored the Truth and Reconciliation Commission’s recommendation to limit the ability of those involved in the conflicts to run for office. As a result, while former dictator Charles Taylor is still locked away in an international prison, his ex-wife, Senator Jewel Howard-Taylor, has been named as the vice presidential candidate on the ticket of popular footballer George Weah of the Congress for Democratic Change. Weah had previously been a serious contender for the presidency in 2005 and the vice presidency in 2011.
Howard-Taylor is not the only candidate with a checkered past. Another, former rebel commander and current senator Prince Johnson, is perhaps best known for a video in which he presided over the 1990 torture and mutilation of President Samuel Doe while sipping a beer; Doe was eventually murdered by Johnson’s fighters. It is bad enough that these figures from the darkest episodes of Liberia’s history are elected lawmakers. Their ascension to the presidency could reopen old wounds and seriously damage the credibility of the office.[18]
[18] >
Media reports confirm that Weah had been in communication with Charles Taylor despite his imprisonment for aiding and abetting war crimes in Sierra Leone.[19] Reports also confirm that Charles Taylor has been reported as encouraging NPFL supporters to ‘return to their base’ in the lead up to the elections. [20]
[19] Un Security Council, Thirty-third progress report of the Secretary-General on the United Nations Mission in Liberia (S/2017/510) Sieh, Rodney, Liberia; Charles Taylor wants loyalists to return to NPFL, NPP Base 31 January 2017 >
Most recent reports confirm that Weah has such a commanding lead in the first round of the presidential election that his nearest rival (Vice President Joseph Nyumah Boakai), will struggle to win the second round. The report confirms that a voice recording of Taylor urging his supporters to vote for Weah was widely circulated by the Congress for Democratic Change and that “some boasted that once elected Weah would get Taylor out of prison.”[21]
[21] "Weah sprints towards an open goal", Africa Confidential, 20 October 2017, CXC90406616070

Having considered the country information the Tribunal accepts the submissions advanced by the applicant’s agent that the reports indicate the presence of NPFL loyalists who have clearly motivations to prevent war crimes being acknowledged and investigated in Liberia.

Applicant’s claims

The next question for the Tribunal is whether the threats and violent incidents which the applicant recounted occurred in Liberia are connected and demonstrate that he is a person of interest and his life is still in danger. In assessing the applicant’s evidence the Tribunal has had regard to the findings of Justice Perry, namely that this integer of the applicant’s claims was supported by probative evidence and if it was accepted this may have justified concluding that he had established that his fear was well founded. [22]

[22] AZAFH v MIBP [2016] FCA 1363, Perry J, SAD 167 of 2016, 17 November 2016 at [45]

As detailed above, the applicant has now provided further evidence in support of his claims which was not before the first Tribunal or the delegate. It was submitted that the silencing of the applicant has been ongoing since he departed Liberia as was evident by the attacks on his mother’s house and the physical assault on his son.

In assessing the applicant’s claims the Tribunal notes that one of the fundamental principles of protection claims assessment is that applicants ought to be given the benefit of the doubt. In particular the UNHCR Handbook states:[23]

“ After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. […] It is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.”
[23] UNHCR Handbook, paragraph 203

Having regard to the findings of Perry J and the new evidence the Tribunal is prepared to accept that the applicant is a person of interest to [Mr B] and NPFL loyalists and that the incidents described by the applicant were not simply random criminal incidents but may have been targeted attacks motivated by silencing the applicant and threatening his family because he may seek justice for the death of his father and the crimes committed against him and his family during the civil wars.

Against this background, having regard to the country information, the Tribunal is satisfied that there is real chance that that the applicant will face serious harm if he returns to Liberia in the reasonably foreseeable future for reason of his imputed political opinion. The Tribunal finds that the applicant’s fear of persecution because of his political opinion is well founded.

Further, the Tribunal accepts the persecution the applicant fears is not localised and therefore the Tribunal is satisfied internal relocation is not reasonably open to the applicant and he has a well-founded fear of persecution in relation to the country as a whole.

State protection

In 2017 Freedom House has provided the following information on civil liberties and state protection in Liberia.

Constitutional provisions guarantee an independent judiciary. Although petty corruption and backlogs remain major impediments to justice, recent rulings by the nation’s highest court point to increased judicial independence and increased willingness to intervene to protect people’s rights. However, lower-level courts continue to struggle to provide justice to ordinary citizens. Corruption remains rampant, judges are subject to interference, and courts are hamstrung by case backlogs
Lack of discipline, absenteeism, and corruption continue to plague the police and armed forces, hampering their ability to enforce laws and bring justice to those who have been the victims of crimes. As a result, many in Liberia turn to extrajudicial means of justice, including attacks and property damage. People accused of witchcraft can face the practice of “trial by ordeal,” in which they are subjected to abuses amounting to torture. Prisons are notorious for inadequate medical care, food, and sanitation; lax security; and prolonged pretrial detentions[24]
[24] >
The Tribunal notes that although provisions for witness protection were included in the 2005 legislation that established the TRC, reports indicate that there was no comprehensive protection program in place and only limited protections were available to witnesses. [25]
[25] Liberia – Towards the final phase of the Truth and Reconciliation Commission’, Amnesty International, AFR 34/002/2008, 29 July 2008, p.23, CIS956B8881678; ‘Report on the Human Rights Situation in Liberia: November 2007 – June 2008’, UN Mission in Liberia, December 2008, p.22, CIS23690

Amnesty International noted that Liberia’s legal system lacks provisions on victim and witness protection and on reparations that reflect the principles of similar provisions contained in the Rome Statute.[26]

[26] Amnesty International, Liberia: Truth, Justice, Reparation for Liberia's Victims, 15 February 2007, AFR 34/001/2007, available at: 24 October 2017]

Amnesty International reported that “During Charles Taylor's presidency, no effort was made to redress past human rights violations committed during the armed conflict. Government security forces, including the ATU, contained former combatants who had not been vetted or retrained, nor undergone any process of demobilization or reintegration. Numerous examples of interference of the executive in trials, especially those of political nature, proved that the judiciary was not independent of the executive, and it made no effort to bring any of the perpetrators to justice. Impunity reigned.”[27]

[27] Amnesty International, Liberia: Truth, Justice, Reparation for Liberia's Victims, 15 February 2007, AFR 34/001/2007, available at: 24 October 2017]

The Tribunal accepts the agent’s submissions that the high levels of corruption and the failure to pursue judicial recourse to address past war crimes are indicative of a state which cannot provide adequate protection to a person with the applicant’s imputed political profile if he was to return to Liberia.
The Tribunal further finds that the state is not only unable to provide adequate protection against the feared harm but is also motivated to withhold such protection for a Convention reason, that is, the applicant’s political opinion.
Third country protection
Having found the applicant meets the criteria set out in s.36(2)(a) of the Act, the Tribunal has next considered whether the applicant has not taken all possible steps to avail himself of a right to enter and reside in any country apart from Australia: s.36(3).
Subsection 36(3) of the Act provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
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.[28] The Federal Court has held that a 'right to enter and reside' as envisaged in subsection 36(3) must be a 'legally enforceable right.'[29] The 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[30].
[28] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[29] Applicant C v MIMA [2001] FCA 229 (Carr J, 12 March 2001), Kola v MIMA [2001] FCA 630 (Mansfield J, 30 May 2001) at [36], upheld by the Full Federal Court in MIMA v Applicant C (2001) 116 FCR 154 and Kola v MIMA (2002) 120 FCR 170 at [63] respectively.
[30] [2001] FCA 1391 (Gray J, 2 October 2001).
In determining whether or not the applicant has a right to enter and reside in a third county the delegate had regard to the following evidence about the applicant’s movement history in Africa:
·     In 1992 the applicant escaped to [Country 1] where he claims he was recognised as a refugee by the UN and resided for the next ten years until 2002
·     In 2002 the applicant went back to Liberia and after spending six months in the country returned to [Country 1] in the same year
·     In 2007 the applicant travelled again to Liberia where he resided until 2010
·     In 2010 the applicant travelled again to [Country 1] returning to Liberia in 2011.
The delegate found that Liberia and [Country 1] are members of the Economic Community of West African States (ECOWAS). The delegate found that the applicant had an existing legal right to enter and reside in an ECOWAS country as he had a “genuine Liberian passport”. The delegate further found that the applicant did not present protection claims against any ECOWAS country. The delegate did not consider the applicant’s substantive claims and found that the applicant could have avoided harm by going to at least two of the ECOWAS member states.
The applicant’s representative submitted that while sources indicated that the ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, evidence also suggests that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment and extortion on the part of member states.
Background information - ECOWAS
There are 15 member states of ECOWAS including Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.
In May 1979 the member states of ECOWAS signed ‘Protocol A/P.1/5/79 Relating To Free Movement Of Persons, Residence And Establishment’ that formed the foundation for further steps to provide freedom of movement and residence within member states. Since the signing of this protocol, ECOWAS has gradually implemented a number of related (and supplementary) protocols over three phases that have outlined the legal requirements of member nations.
Although the series of ECOWAS protocols have established a legal basis for citizens of ECOWAS member states to reside in other ECOWAS member states, sources indicate that in reality there are a number of other limitations within the individual member states that have affected this right to reside.
In theory the ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[31] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[32]
[31] ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.23, < of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" - Liberia country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92317 , < ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.42, <>
However, reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws.[33]
[33] ‘Annex of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" - Ghana country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92316, p.46 & 47, < refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.27, < ‘New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol’, United Nations High Commissioner for Refugees, 1 December 2007, CIS20876, p.9 &11, <>
The applicant’s representative referred the Tribunal to a UNHCR report which provides the following information on the implementation of the ECOWAS treaty and protocols in practice:
Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[34]
[34] Un High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, available at P86.
The UNHCR report continues:
At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds”….. The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[35]
[35] Ibid, p87.
An April 2008 report from the Ghana News Agency, appearing on the Government of Ghana Official Website, refers to a meeting between “Representatives of civil society, the private sector and the media from the ECOWAS member-states” held in Accra, Ghana, that attempted “to fashion out practical ways to stem harassment on the highways and borders within the region”. The report further commented on restrictions to ‘free movement’ between ECOWAS member states, such as “illegal barriers and roadblocks”, “the extortion of money from travellers”, “systematic racketeering”, and some “immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document”.[36]
[36] ‘Ghana Hosts ECOWAS Meeting On Border Harassment’ 2008, Ghana News Agency, 3 April >
As stated above the delegate found that the applicant had a genuine Liberian passport and therefore was legally able to enter on of ECOWAS countries. The applicant’s representative submits that the applicant’s passport expired in 2014 and thus he would be required to return to Liberia to obtain a current passport. The Tribunal was referred to Article 3 of the Protocol Relating to Free Movement of Persons, which makes it a requirement of entry to any ECOWAS state that the applicant possess a valid travel document and international health certificate. [37] The Tribunal finds the applicant does not have a genuine Liberian passport. The Tribunal further finds that that the applicant would experience difficulty obtaining a new Liberian passport since his “Official passport” is a bogus document that was issued under false pretences. The Tribunal finds that without a Liberian passport the applicant does not have the right to enter or reside in ECOWAS country.
[37] Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, ECOWAS, 29 May 1979, >
The Tribunal has considered the evidence and submissions advanced by the applicant’s representative and is satisfied that the applicant does not have a right to temporarily or permanently enter and reside in any country, other than Liberia and that s.36(3) does not apply in the applicants’ case.
For these reasons the Tribunal is not satisfied that the applicant has a right to enter and reside in another country based on Liberia being a member of ECOWAS.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz

Member

[2017] AATA 2143

31 October 2017

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