1815260 (Refugee)

1815260 (Refugee) [2022] AATA 4420 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simar Hermis (MARN: 1464902)
CASE NUMBER:  1815260
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Luke Hardy
DATE:18 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 October 2022 at 11:27am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – fear of harm from secret society – refused to be initiated and succeed father as leader – beatings and threats – credibility – inconsistent and far-fetched claims and evidence – not initiated when young even though father was leader – delay in departure after passport issued and alleged attack – timing and authenticity of newspaper reports provided – supporting statements not corroborative of claimed events – refused to be initiated due to religious beliefs but no claim on religious grounds per se – church attendance for social reasons – country information – abductions and forced initiations – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), ss 5(1)(a), 5AAA, 5H(1), 5J(6), 36(2)(a), (aa), (2B), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of Sierra Leone. He entered Australia on a 60-day Temporary Activity visa as part of the Sierra Leone Commonwealth games delegation, which included athletes, coaches, administrators and fans, on 20 March 2018. He lodged a PV application (PVA) on 12 April 2018. The delegate refused to grant the visa on 10 May 2018. [The applicant] then sought merits review by this Tribunal and the matter was constituted to me. I find the review application valid.
[The applicant] appeared before the Tribunal on 6 October 2022 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent. The Tribunal hearing was facilitated by an interpreter in the Krio-English medium.
I am satisfied that [the applicant] was not prevented by any factor outside of his control from giving cogent evidence at the Tribunal hearing.
Criteria for a protection visa
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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department of Home Affairs (the Department)
[The applicant] claimed to be a member of the Temne ethnic group. He claimed he was born on [Date]. He claimed to have [step-brothers] or [half-brothers]. He claimed to have one younger brother born in [Year]. He claimed he lived most of his life in Makeni, moving to Freetown in January 2017. He claimed to have attended school in Makeni from [Year] to [Year]. He claimed to have worked as [an occupation] in Freetown in 2017.
[The applicant] claimed he left Sierra Leone because he was being hunted by the Poro Society, a secret society known to be active in Sierra Leone and Liberia. He claimed the Poro Society demanded that he succeed his father as their leader. He claimed his refusal to be initiated into the society was greeted by the Poro Society with threats and beatings. He claimed he was not hurt by the beatings because he “had a school bag.” He claimed that some Poro Society came to his house to force him to be initiated. He claimed he escaped his house through a back window. He claimed he fled to Freetown and reported the Poro to the police who initiated a response and then cowed out of it.
[The applicant] claimed the authorities will not protect him as they fear the Poro. He claimed he cannot relocate safely in Sierra Leone because the Poro have networks throughout the country.
[The applicant]’s original claims were vague as to when relevant events were supposed to have occurred. The reference to the school bag suggested that they occurred decades ago, as [the applicant] was already [Age] at the time he lodged his PVA.
In a statutory declaration lodged with his PVA, [the applicant] claimed as follows:
… I was born in Sierra Leone, West Africa in the city of Freetown on [Date]
but then relocated to the town of [Town 1] in Makeni at the aged of [Age]. I travelled to
Australia when I was [Age] years old under a Temporary Activity (Subclass 408) Visa
sometime in March 2018.
Though I travelled under a Temporary Activity (Subclass 408) Visa, my intention was
antivated by sudden events relating to the protection of my life and well-being which
was in danger in Sierra Leone.
It was on or around [January] 2017, when my father [passed] away at Makeni in Sierra Leone.
My father was the chief/leader of the poro [sic] society in Makeni Town, which is a secret
society that has members of strict cultural beliefs & followings.
As the head, he is responsible for conscripting and initiating young boys into the secret society. This traditional role coupled with other responsibilities to settle disputes and as a custodian to land made my late father to be a powerful man in the village.
After the death of my father, I was traditionally appointed to succeed him as the chief
of the poro [sic] society being the eldest son to my father. This tradition is consistent to the
Poro beliefs that succession trasmit through the elder son in the family.
I was invited to a meeting involving elders of the Poro society sometime in February
2017. In the course of the meeting I was advised about the intention of the
membership to succeed my father and the ceremonies that I would need to undergo.
Prior to the elders' meeting, the family held a special meeting with me where they
informed me that I should succeed my father as that is usually the case in the family
tradition. It was during that meeting I was strictly told that they would not be able to
pretect [sic] me from whatever deprivation against me.
I responded to my family the same manner as I did with the elders that they should
give me time to have some thoughts over the issue.
Not long and exactly 40 days after, I politely conveyed to them that in as much as I
valued their goodwill intention, however, that it would be against my religious beliefs
as a Christian since I see myself as a servant of God.
On or around March 2017, I was called back for another meeting where I was told
again to take my late fathers role in the society, if I did not do so my life and my
family's lives would be in great danger. I left very upset and shaken and again told them I will not become chief.
On that given day, I returned home to pass the night at my mother's village ([Village])
which is 4 miles away from my father's village. While I was at home sleeping, some
members of the Poro society came to my house with knives and machetes and
demanded that I go with them or they will take my life. I was at home alone as the
rest of the family went to a night time church service.
In the process of their demands, I pleaded to use the toilet which was inside the house.
As I was so frightened for my life, I wasted no time but to escape the house through
the back window.
At the back of the house there is a thick forest which I managed to crawled slowing
until I was about few metres away before I started to physically walk. At this time I
could hear them shouting and hitting the pan roof of the house.
They were using words to the effects "A/jell... A/jell. You will see fire tonight....". "Yow [sic]
will not escape from us...." "No hiding p/ace for you in this country.....I". "We are
everywhere... I". However, I manged [sic] to escape to my friend who lives a few blocks
away. At this point it became apparent that my life is in complete danger
I wated [sic] no time and informed my friend that I have been attacked by the Poro
members. I begged my friend to help me and asked if he could immediately drive me
to the church to collect my family.
Once I reached the church I explained to the pastor what had just happened and he
offered for my family and I to sleep at his house. He told me that in the morning he
and some other members of the church would try to go and speak to the elders on my
behalf.
Once they reached the elders they became very hostile and told the pastor to go back
to his church and not to concern themselves with society business.
Once the pastor returned and informed me, I instantly became scared and terrified for
mine and my family's safety. On that very day, the pastor advised that I should make a
report to the Makeni police station.
The police told me that they cannot take my report as it is not in their interest to come
between society matters. The society is very powerful and even the police know what
they are capable of doing.
I returned back to the pastor's house very petrified that not even the police will help
me. I asked the pastor to help me contact a friend in Freetown so as my family and
myself could flee makeni [sic] before we were killed.
The pastor drove us to Freetown on 2 April 2017 where we stayed at a friend house for
a week until I could arrange appropriate accommodation.
On the 10 April 2017, I managed to rent a house at [Address in]
Freetown.
On 25 April 2017, I started a business [selling] [Products] at
various markets in Freetown in order to sustain my family
I continued to do my business and found a church for my family to attend. I met some
new friends at the markets and we all went to watch [Sport] at the national stadium
every day after 5:00pm since I am a huge sports fan.
[In] October 2017 I married my partner [in] a closed wedding
with few friends and family.
On 26th November 2017, I was on my way back from church when I was struck from
behind and attacked. they told me that they found me now and not to run away. Or
they will make sure they kill me. They were speaking in our ethnic language krio.
Immediately I went to the Eastern police station in Freetown and reported what
happened to me, the police took a statement from me and sent two police men to the
place they attacked me but terminated their assignment prematurely. I feared for my
family so I went and stayed with a friend.
I explained to my friend what had been happening to me and he suggested I should
leave the country as he also feared that I would be killed.
I started to think on how I could leave Sierra Leone. I was at the field watching the
[Sport] when a friend told me that Sierra Leone qualified for the Commonwealth
Games in Australia.
He told me to give him my information and he will apply for me to get a visa to watch
the games in Australia.
On 30th January 2018 my friend informed me that I was granted a visa to come to
Australia.
On 1st March 2018 I was going to the practice field to watch the [Sport] game when
I was again attacked and beaten. I was hit and kicked by these members of the Poro
society and told me I have 2 weeks to Go back to Makeni. And that if I failed to go
back to Makeni they will use either spiritual or manual force to kill me. I was extremely
terrified as by this time I had wounds and bruises all over my body.
On the 10th of March 2018 I decided it would be safer to leave Freetown and go to a
family friend house in [Town 2] to hide. After my arrival in [Town 2], I later told my friend in
Freetown to assist me with airfare for which he did. And I also told him to tell my wife
and the children to go to the church and ask the pastor if he can accommodate them.
On the 17th of march my friend purchased the Airfare and sent someone to deliver it to
me at [Town 2]. The person that came with the ticket then conveyed that the pastor have [sic]
agreed to look after my family and that it is better for me to leave.
On [date] March 2018 I travelled to Australia and few days later being [date] March I
safely landed in Sydney International Airport.
I cannot go back to Sierra Leone because I am fearful of my life and if I were to return I have no doubt I would be killed.
I am therefore seeking the protection from the Australia government and its people
since I would be killed if I return back to Sierra Leone. Clearly the authorities cannot
protect me nethier [sic] defend me if I were to be attacked by anyone including members of the Poro society.
I note that [the applicant]’s passport was issued in [2017], even before the alleged attack in November 2017. I further note that he did not use it to depart Sierra Leone until mid-March 2018.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision record, which contains additional evidence, along with descriptions of issues the delegate considered critical to his decision.
The delegate records that when he questioned [the applicant] as to when his first claimed meeting with Poro Society members had been, he said it occurred “a few days” after his father’s death, which had occurred [in] January 2017. However, [the applicant] had also claimed at interview and in his written statement that he met with the Poro Society in February 2017. The delegate observed that since some [Number] days would have passed between the death of [the applicant]’s father and the first day of February 2017, the purported meeting with the Poro Society could not have been both in February 2017, and ‘a few days’ after his father’s death. The delegate put to [the applicant] the apparent discrepancy in his chronology. In reply, [the applicant] evidently responded: “It was not exactly a month, it was in the night they called.” This response does not appear to have addressed the delegate’s concern as to the chronological discrepancy perceived in [the applicant]’s evidence.
The delegate also noted that [the applicant] gave apparently discrepant accounts as to whether he first met with his family, who at that meeting told him he was expected to succeed his father in the Poro Society, or met first with Poro Society members and then with his family after that.
At interview the applicant claimed that after meeting with Poro society members in February 2017 he attended a meeting with his family. However, it is noted that his written claims suggest that he attended a meeting with his family prior to meeting with the members of the Poro society. When this apparent discrepancy was put to him at interview the applicant claimed, unconvincingly, that there might have been a typographical error.
I note here, in particular, that [the applicant]’s explanation for the discrepancy was “a typographical error.”
The delegate was concerned about [the applicant]’s description of having escaped to his mother’s village from the Makeni Poro members who had been pressuring him under threat to join the Society because when they located him in his mother’s house they let him use a bathroom on his own, whereupon he was able to escape out of a window:
Whilst the applicant claims that he doesn’t know exactly how many members of the Poro society came to his mother’ home as it was dark in his village, it is evident, from his written claims and interview testimony, that he claims that multiple armed people were present. The applicant claims that he pleaded to use the toilet, and as he was frightened for his life he escaped the house through a back window, into the thick forest at the back of the house. At interview it was put to the applicant that it appears surprising that people who came to capture and forcibly initiate him would allow him to go in another room unguarded, and have the opportunity to escape. The applicant responded “because of the confidence that I gave them, that I would go with them, so they accepted that”.
It is hard to see from the facts up to that stage of [the applicant]’s PV application that he would have given his Poro Society visitors any reason to trust him sufficiently enough to let him go into another room alone.
The delegate also put [the applicant] on notice about the attack he purportedly suffered in Freetown in November 2016:
The applicant has also claimed that after relocating to Freetown, in March 2018 he was attacked, beaten and kicked by members of the Poro society, who told him he had two weeks to go back to Makeni, and if he failed to go back they would use spiritual or manual force to kill him. This incident occurred nearly a year after he claims to have fled Makeni in April 2017 after refusing to accept a hereditary appointment as chief of the Poro society, and after escaping from a previous attempt to abduct him in March 2017. I consider that if members of a Poro society had sought the applicant and had succeeded in locating him in Freetown in March 2018 it is implausible that they would have given him a time period to return to Makeni.

Relevant to this concern, I have been able to locate independent reporting of a Poro practice of kidnapping initiates on occasions.
Independent country information
I have had regard to the following information[1] from UNHCR Refworld about the Poro Society in Sierra Leone:
[1] Canada: Immigration and Refugee Board of Canada, Sierra Leone: Information on the Poro Society, including rituals and initation; ability to refuse initiation or leadership roles; availability of state protection (2015-July 2017), 18 September 2017, SLE105973.E, available at: [accessed 11 October 2022]
According to sources, the Poro Society is a male secret society ... A 2011 article, written by academics from the Universidad Rey Juan Carlos in Spain and the University of Makeni in Sierra Leone, on the role of secret societies in forest conservation in Sierra Leone, states that the Poro Society is "for men belonging to the temne and mende ethnic groups" ... Corroborating information on the ethnicity of Poro Society members could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
A chapter in a 2015 book on peace building in post-conflict Sierra Leone, authored by Paul Jackson, a "political economist working predominatly [sic] on conflict and post-conflict governance," including "extensive experience in Sierra Leone" explains that "these societies play an important role in regulating social events, respect, and control" .. A 2017 report by the SMART Consortium, on the "barriers and enablers to community acceptance and implemenation of safe burials" during an ebola outbreak in 2014, indicates that secret societies in Sierra Leone "were introduced to prepare the male and female children for adulthood" ... According to a 2012 book entitled African Myths and Beliefs [2], the "central focus of the [Poro] society was and remains the preparation of adolescent boys to take their place in society" ... A 2017 academic article "explor[ing]…the socio-cultural power structures of the Poro and Bondo secret societies" in Sierra Leone …, states that "[m]embership of secret societies is the prerequisite for gendered personhood and carries high purchase and social prestige in the local socio-political organization and in national politics in Sierra Leone" …
According to sources, new members are marked with scars ... Allan et al. further explains that, during initiations
the boys stay in a camp away from their parents and friends, sleeping out in the open and shouting to scare off strangers who happen to come near. There they learn the ancient traditions and practice drumming and Poro songs. They are …taken before masked initiates impersonating spirits, the chief of whom is known as the Gbeni. At the end of the training they return to the community as fully fledged adults …
According to the same source, the initiation "takes place in a series of rituals lasting from November to May" ... The 2017 SMART Consortium report cites "a local authority in Port Loko district" as saying that "[s]ometimes the initiation ceremony [for secret societies] takes close to three years teaching initiates their role in society" ... The report adds:
Meanwhile these traditions demand a seclusion ceremony known as 'Kantha' for members such as traditional leaders, ceremonial chiefs, and others who hold positions in the secret society ...
Information on the treatment of individuals who refuse initiation and/or leadership roles within the Poro Society could not be found among the sources consulted by the Research Directorate.
Information on state protection was scarce among the sources consulted by the Research Directorate within the time constraints of this Response. The 2011 academic article on the role of secret societies in forest conservation in Sierra Leone states that "[m]ost members of Sierra Leonean society are initiated into one secret society, and their membership will last until their death" ...
Jackson's 2015 book chapter indicates that "[c]hiefs are part of these societies but not necessarily in control of them. However, it would be difficult for a chief to consistently act in opposition to a secret society" ... According to Allan et al., the "Poro numbers many of the nation's highest-ranking officials among its members" ... The 2017 academic article similarly states that "most of the ruling male elites hold [Poro] membership because of its symbolic power" ... The same source further states that members of the Poro secret society "use their position to evade the law and go unpunished for human rights violations in the name of 'defending culture'" ...
A July 2016 article in the Sierra Leonian newspaper the Concord Times reports that "Poro men attacked the [Republic of Sierra Leone Armed Forces] Maritime Wing Base in Bronthe" and 12 people were arrested as a result ... The article further quotes police Superintendent Amadu Mohamed Turay as stating
"[w]e are still investigating the matter and I cannot proffer any charges at the moment. What is very clear is that the entire township came under attack by the Poro boys. I am a member of the Poro society and I am not in any way intimidated by their activities, I want to inform the public that the leader of the group, one Michael Palmer, has also been arrested." …
A May 2017 article by the Awareness Times, a Sierra Leonian newspaper, reports that seven persons were accused of allegedly murdering "famous [All Peoples Congress] youth," Mohamed Taimeh and the case has been "committed to the High Court of Sierra Leone for trial" ... The same source further states that
[t]he men are alleged to have tortured Taimeh to death under the guise of forcefully taking him to the sacred Poro society bush for initiation. The alleged abuse of the respectable Poro society by the men facing trial, is said to have seriously upset the traditional Poro chiefs in Kenema who speedily intercepted the accused and handed them over to the State authorities. Awareness Times Newspaper can also confirm that the Poro chiefs have testified in court during the hearing, that they do not want their society to be stained so they were totally distancing legitimate and respected Poro activities from the cruel murder of Taimeh …
[Tribunal’s emphasis]
The material quoted above provides scrupulous references to sources. I have removed these for flow, but they can be found in the original Refworld report.
I have had regard to the following information about initiation into the Poro Society located in a report[2] from UNHCR’s CORI (Country of Origin Research and Information) unit:
Each local Poro group has a sacred place in the bush where initiation rituals take place. Initiation usually happens at puberty and marks not only admission into the society in itself, but also a rite of passage to adulthood. In some cases initiation involves the payment of a fee by the family of the initiate or an external sponsor.
Boys are taught to become men learning traditional laws, customs, crafts, farming and spiritual knowledge. They undergo competitive tests of physical prowess and endurance. A special emphasis is put on the initiate’s ability to keep secrets. The young men are symbolically “killed” and eaten by the spirits, and then reborn as adults, prepared for life in society. The rituals involve the scarification of the body of the initiates. The ordeal of initiation is severe, occasionally an initiate may die. Village chiefs and male elders usually organize the initiations, because initiation guarantees community membership families may feel beholden to the organizers. According to [anthropologist] Dr Fanthorpe “elders may use that moral indebtendness [sic] to secure compliance with their decision making or claim resources from lower status families.” …
The Poro Society has used symbols of witchcraft to intimidate community members and has vandalized property and attacked families who refuse to participate in Poro society. The Poro often abduct people that they intend to forcibly initiate.
Some members of other religions, largely Christians and Muslims, are publicly opposed to the secret societies and openly criticize them. There are several reports of Imans being abducted and forcibly initiated in Freetown and other major cities in the country, [and] according to Dr Fanthorpe these “are overtly political acts designed to intimidate and punish rather than convert” …
[Tribunal’s emphasis]
[2]
Evidence submitted to the Tribunal
[The applicant] submitted to the Tribunal a letter of support from his local state member of parliament. The letter says that [the applicant] brings broad benefits to Australian society and the author is unaware of any reasons why he should not become a permanent resident.
[The applicant] also submitted purported downloads of newspaper articles from three purported Sierra Leonean newspapers, evidently called [Newspaper 1], [Newspaper 2] and [Newspaper 3].
The digital files of pages from [Newspaper 1] are in colour. The article in [Newspaper 1] about [the applicant] purports to be dated “Monday, 10^th May 2021.” It begins on the front page and continues on page 3, where the text from the front page is repeated and the article, occupying all of “Page 3,” proceeds for a further three columns (four in all). The article gives an account of [the applicant]’s claimed problems with the Poro Society, generally from the point of view of his wife, who is described as [Newspaper 1]’s source. According to the digital file submitted, however, “Page 3” of this newspaper edition is dated “Monday 14^th June 2021.” To be consistent with the dates shown on the rest of the pages of this edition, however, the date at the top of “Page 3” should be “Monday, 10^th May 2021.”
Meanwhile, [the applicant] submitted another digital file of a photocopy of a newspaper page: it features the same [Newspaper 1] “Page 3” article about [the applicant] but this time the date at the top of the page is “Monday 10^th May 2021” consistent with the date on the front and other pages of the edition as originally scanned. This second document provides a hyperlink to a site called [Newspaper 1], purportedly a daily newspaper, although the headline articles appearing on the home page on October 2022 are dated no more recently than September and June 2022. The article about [the applicant] appears in an “Uncategorized” section of the website[3], which evidently provides an intermittently-used platform for individuals to submit posts about themselves or others and which show no sign of having been fact-checked. Most of these “Uncategorized” articles relate sympathetic, similarly-drafted accounts of adult males who have escaped to whereabouts unknown to avoid being initiated the Poro society and being forced to assume leadership upon the deaths of their fathers. Some of them are about lesbians and gay males who also fled to whereabouts unknown. There is nothing in [Newspaper 1] website to suggest that any of these “Uncategorized” articles appear in it other than through a process of self-selection on the part of their authors or subjects. If one goes to the “Home” page of [Newspaper 1]’s website, it is possible to go from there to “News” and “Advertisement News” stories, but there does not appear to be a link to any “Uncategorized” articles. The site does not appear to be managed by any named editor as such, no editorial staff list is given and the site seems scantly maintained as all stories viewed between 10 and 14 October 2022 are old and out of date.
[3] [Newspaper 1 URL 1]; see also: [Newspaper 1 URL 2]
The article about [the applicant] in [Newspaper 1] does not appear to have been fact-checked, in at least one obvious regard, as it describes as [the applicant]’s own son a [child] born on “[date] 2019,” a date that fell some nineteen months after [the applicant] left Sierra Leone.
Another digital file provided to the Tribunal shows a colour photocopy of relevant pages in the “Monday 6^th September 2021” issue of [Newspaper 2]. “Page 3” of this issue purportedly features an article about [the applicant] and his problems with the Poro society, although I noted on receipt of this evidence that it appeared to have been printed on quite different paper stock than that on which the rest of the newspaper was evidently printed. The report refers to Poro Society members invading the home of [the applicant]’s family members purported to have occurred on Sunday 4^th September 2021.” I note that one problem here is that there never was a “Sunday 4^th September 2021,” as the correct day of the week for that date was a Saturday. The day after Saturday 4 September 2021 was Sunday 5 September 2021.
The submitted digital images of the third newspaper, [Newspaper 3], have the purported date “Tuesday 21^st March 2018” on both of the two pages provided. Both images feature a newspaper laid out on a dark surface, like a table, the first featuring a front page that has been folded in two and then unfolded; the second features the same edition opened at “Page 4.” An article about [the applicant] and his problems with the Poro society appears on “Page 4.” The article relates information purportedly provided by [the applicant]’s wife. I note, meanwhile, that 21 March 2018 was in fact a Wednesday, and not a Tuesday. An erroneous date therefore appears on both of the pages of the photocopied newspaper, one of them the supposed front page.
The article about [the applicant] in [Newspaper 3] is by a “[Mr C].” It relates information provided directly from [the applicant] himself along with additional comments from his former fiancée, now his wife. It also reports that “[Mr D]” who [the applicant] knew in Freetown helped him to leave Sierra Leone after hearing his story about the Poro. The article does not suggest that “[Mr D]” obtained relevant information from anyone or anywhere else.
I note that a December 2020 DFAT thematic report on the Economic Community of West African States (ECOWAS), which includes Sierra Leone as a member state, reports that “corruption is highly prevalent across the ECOWAS region, and can manifest in relation to obtaining all forms of identification document.” DFAT said that systems of government administration lack adequate financial, human and material resources and capacity to ensure document integrity and prevent corruption. DFAT reported that, although degrees of severity vary across ECOWAS member states, generalised corruption is common and documentation is commonly and easily obtained with little to no assessment of entitlement.
Meanwhile, a U.S. Department of State Overseas Security Advisory Council (OSAC) Country Security Report[4] notes that “[c]orruption [is] present at all levels within the government and private sector. According to a 2020 Afrobarometer survey, “46% of Sierra Leoneans reported paying bribes for public services (i.e., education, health care, identity documents, police services) in 2020, which is essentially unchanged from 2018 when 47% of Sierra Leoneans reported doing so.”
[4] Sierra Leone Country Security Report , 19 November 2021,
I searched a number of sites[5] purporting to provide extensive lists of Sierra Leonean newspapers and online news sites. I was unable to find any that list any of the three above-mentioned mastheads or news sites. One site mentioned an online service [Similar name to newspaper 1], but that news source has a different masthead from [Newspaper 1] and, unlike [Newspaper 1], which appears only to purport to be a daily, this source has daily editions providing multiple current articles in a variety of sections, albeit from a range of established news sources including international ones.
[5] Sierra Leone newspapers and news sites | World-Newspapers.com;
[The applicant] submitted an 11 May 2022 letter from his former fiancée, now his wife, in Sierra Leone. The letter describes, amongst other things, a visit by Makeni Poro Society members to [the applicant]’s late father’s house, where they told those residing there that they still intended to take [the applicant]’s infant son into initiation when they find him. The author indicated she was not present as she and her son are hiding in a small village where the Poro cannot find them. She said that [the applicant] was attacked at his church in Freetown in November 2016. She did not say how she knew this to be true.
[The applicant] submitted a 7 September 2022 character reference and a copy of a letter of promotion from his employer in [Suburb 1] NSW.
[The applicant] submitted a 26 September 2022 letter from the pastor of [a Church] in [Suburb 2] NSW. The letter says [the applicant] attends church and participates in a number of its activities, including “assisting in the adult Sunday School department” and ushering.
[The applicant] submitted a 21 September 2022 letter from [Organisation] which says he is a registered client of that centre.
The Tribunal also received a 25 April 2020 letter from a psychologist:
[The applicant] has provided his consent for his circumstances to be outlined in the report below.
This psychological report was prepared with reference to [the applicant]’s current psychological needs as requested by his solicitor [for] the purposes of assessment of his protection visa by the Administrative Appeals Tribunal.
[The applicant] was diagnosed by his General Practitioner, [Dr F], as presenting with Post Traumatic Stress Disorder comorbid with Depression on 25/12/2019.
[The applicant] has been seen for psychological assessment at this practice since 25/10/2019 and continues to receive intervention.
With reference to background factors, [the applicant] has revealed in session his circumstances leading to the requirement of a protection visa from the Australian government. This has mainly involved persecution by the Poro people. He stated he was exposed to the threat of death and was violently attacked and caused serious injury multiple time[s] in 2018 by the Poro group. He reported having escaped from Sierra Leone on [date]/03/2018. He has demonstrated in session a news article from [Newspaper 3], released on 21/03/2018, outlining his circumstances and consistent with his self-reports.
[The applicant]’s current symptoms observed in psychological sessions are congruent with the findings of professionals and his diagnoses. He completed two psychometric assessments, mainly, the Post Traumatic Stress Disorder (PTSD) Screener and the Depression, Anxiety and Stress Scale - 21 Items (DASS-21), with [Dr F] on 25/12/2019. The PTSD Screener revealed scores indicating an experience of trauma including nightmares, trying with difficulty not to think about the events leading to his circumstances, and feeling numb and detached. The DASS-21 is a set of three self-report scales designed to measure the emotional states of depression, anxiety and stress. This assessment revealed symptoms of extremely severe anxiety, extremely severe depression, and extremely severe stress. A DASS-21 was administered by this Author on 18/04/2020. Results indicated a slight increase in raw scores yielding the same results indicated above i.e. extremely severe anxiety, extremely severe depression, and extremely severe stress.
As a result of direct exposure to violence and threats of death, [the applicant] continues to experience symptoms of PTSD. These include a reported experience of difficulty sleeping and concentrating, nightmares twice per week, flashbacks up to 3 times per week, feeling afraid, avoidance of people, withdrawing from others and feelings of isolation, decreased experiences of positive affect and decreased interest in activities. He further experiences increased physical reactivity including headaches, dizziness and hypervigilance. [The applicant] reported that were his situation to change and he was not permitted to continue to live in Australia his risk of suicide would increase. He reported preferring that he takes his own life rather than allowing the Poro people to murder him. He currently denied a suicide risk citing his family as protective factors including his wife and [son].
[The applicant] requires ongoing support and intervention to address the symptoms detailed above and improve his day to day functioning and adjustment. More positively, [the applicant] continues to work through the Coronavirus pandemic and contributes meaningfully to the Australian society.

I have had regard to all the material submitted. As to the letters of support from various people in Australia, I have no reason to doubt the sincerity of their authors. I have considered their respective authors’ remarks about [the applicant]’s character as they view him. To the extent that these individuals refer to [the applicant]’s claimed experiences in Sierra Leone, however, they are not corroborative.
As to the letter from [the applicant]’s wife, she does not claim to have encountered anyone from the Poro Society or to have seen her husband approached by any of its members. Whereas she claims he was attacked at church in Freetown in November 2016, it is not clear from her letter if she personally witnessed him being attacked. [The applicant]’s wife claims that publication of his account of his troubles in Sierra Leonean news media has put unwelcome attention on her and her family, such that the Poro Society will be even more inflamed.
With regard to the psychologist’s letter, the source of all information in that report about what happened to [the applicant] in Sierra Leone is [the applicant] himself. With that in mind, I do not regard it as corroborative of the substantive facts in this case, although this and other letters create a general impression that [the applicant] has been broadly consistent about his substantive claims. Still, a psychologist is not required to test the information given by a patient in the way the Tribunal is required to test evidence before it. For example, the psychologist in this case has referred to the “news article from [Newspaper 3], released on 21/03/2018, outlining his circumstances and consistent with his self-reports,” but has not tested whether, for example, any anomaly regarding the date of that edition of [Newspaper 3].
Evidence given at the Tribunal hearing
[The applicant] gave his current age as [Age] years. He said his late father was a Muslim. He said he himself is a Christian. He said he became Christian at the age of [Age]. I asked him f he had ever been baptised and he said he had not: he had been a Christian for eleven years but had not sought baptism. Asked to explain this, he said he used to mix with Christian friends. He said he sometimes went to church on Sunday with his fiancée and her children. He said that that church was called [Church name] in Makeni. This was one of several instances during the hearing when [the applicant] confirmed that he lived in Makeni up to the time he fled to Freetown in 2017. On other occasions during the hearing, however, he said he was residing in [Village] with his mother before the events that caused him to move to Freetown.
[The applicant] confirmed that his late father, who died [in] January 2017, had been the Poro leader for all Makeni Town. He said he did not know how long his father had had that role. Then he said it was probably from [Year] to 2017. He said his father died of [an illness].
I put to [the applicant] that males are usually initiated into the Poro Society at or following puberty. I asked him to explain how he had been able to avoid initiation into the Poro Society at puberty when his father had supposedly been its leader for Makeni. In reply, he said his parents were very much in love, such that when his mother told his father that he should not initiate his son as he was too small. He said his father did what his mother asked. I put to [the applicant] that he would not have stayed small for long and that his father would likely have been expected by the Poro Society to behave like a leader and initiate him to carry on the inherited role. In reply, [the applicant] said that his mother was the family’s breadwinner and that his father therefore let her win their disagreements. I asked him if his father might not have been ridiculed by members of the Poro Society for refusing to initiate him. [The applicant] then said that his uncle told him of his father having promised to initiate him when he grew up.
I asked [the applicant] how old he was when his father died and he said he was [Age]. I put to him that by the age of [Age] he would already have been grown up for several years. He then said that his mother still did not give her consent for him to be initiated. He said this led to his parents divorcing in 2012. He said he moved out with his mother to live in [Village], which is about [Distance]km from Makeni.[6] I note that [the applicant] did not show a change of address from Makeni to [Village] in his PVA. I also note that, according to his statutory declaration, his encounters with the Poro Society were mainly in Makeni, his first attempt to engage local police to help him was at a Makeni police station and he was living in Makeni with his fiancée until February 2017. There appear to be four or five years from 2012 to 2017 when [the applicant]’s father, now separated from his wife, likely could, but did not, have him initiated.
[6] [Source deleted].
[The applicant] offered to show me his back to prove he had not already been through initiation. I told him that would not be necessary. I accept for the purposes of this matter that [the applicant] has not been initiated into the Poro Society.
I asked [the applicant] if he could provide me with any evidence of his father’s membership of the Poro Society. He said he only had the newspapers. His adviser tabled three newspapers.
I asked [the applicant] how he had obtained these newspapers. He said they had come from Freetown in Sierra Leone. He said a friend found them and sent them. I asked him who this friend was and he said he could not remember. He said the newspapers were sent with someone who travelled to Australia. He did appear to have known who brought them.
I asked [the applicant] how we could be confident that these were copies of real newspaper editions originally circulated in Sierra Leone on their headline dates. I informed him that I needed to ask questions going to the genuineness of these items because of independent evidence of the ease with which documents can be fraudulently created and obtained in Sierra Leone. [The applicant] said one could tell that the newspapers are genuine because they describe true events that happened to him.
The first newspaper tabled at the hearing was the purported “Monday 10^th May 2021” print edition of [Newspaper 1], with the portion of the article about [the applicant] , and his photograph, on the front page and the full article on page 3. I asked [the applicant] why his story was front-page news in 2021 some three years or more after left Sierra Leone. In reply, he did not address the point of my question. He said there were three newspaper stories about him, one published in 2018, one in 2019 and one in 2021.
I remarked in the hearing that this edition comprises three paper sheets: the first featuring page 1, page 2, what should be page 11 and the back page, 12; the second featuring page 3, page 4, page 9 and what should be page 10; and the third featuring pages 5 to 8. The third sheet, featuring pages 5 to 8, contains no material about [the applicant], and the page numbering as well as the date printed at the tops of all four pages is consistently “Monday 10^th May 2021.” Both of the other sheets, which do feature material about [the applicant], contain anomalies.
At page 2 of the first [Newspaper 1] sheet, there is no page number given (it just says “Page ”) and the date at the top of the page is “Friday June 18^th 2021.” What should be page 11 on the first sheet, the page is named “Page 2” instead of “Page 11.” The content on this eleventh page, interestingly, is the same content as appears in the colour scans of [Newspaper 1] as submitted to the Tribunal prior to the hearing. What should be page 2, in the print edition, but which has no page number, features a table of betting odds, apparently for a June 18 and 19 round of soccer matches, under the number “Set 16466”.
As to the second [Newspaper 1] sheet, the font size for the text in the article about [the applicant] is at least twice the size of the font size used in other articles in the newspaper. It looks like the difference between the font sizes 11 and 16. Also, at what should be page 9 of the second sheet, there is again no page number; this page, also dated “Friday, June 18^th 2021” is a continuation of the full-page betting odds (“Set 16466”) that appeared where page 2 should be.
I showed all of these anomalies to [the applicant] and his adviser. [The applicant]’s response was that the page number omissions and the incorrect dates were just typing errors. It will be recalled that he gave this explanation for the apparent reversal, in his evidence to the delegate, of a sequence of events following his father’s death. Generally, [the applicant] said that the errors and anomalies found in the purported [Newspaper 1] edition were not uncommon in Africa. I then asked him why an early May edition of a newspaper would devote an entire page to a table of betting odds for a round of sporting events five weeks hence, and drew attention to the fact that this edition duplicated the whole table. [The applicant] said in reply that the newspaper might have been looking ahead to those events. I put to him that soccer heats usually played weekly during soccer seasons all over the world: it seemed strange for odds not to be odds given for the round of the week I which the newspaper edition was published. [The applicant] did not provide a helpful reply. I also observe, meanwhile, that while there is some logic to giving betting odds on the eve the games for which they are given, it seems less logical to publish them on a Monday.
The second and third newspapers presented were a purportedly complete “Monday 6^th September 2021” edition of [Newspaper 2], comprising three four-page sheets, as well as an incomplete version of the same edition, comprising only the first four-page sheet, featuring what should be pages 1 and 2, and 11 and 12. This single sheet is identical to the first four-page sheet of the “complete” edition. However, there appear to be a number of anomalies in the “complete” edition. Firstly, what should be “Page 11” has not page number; it just says “PAGE .” Also, whereas what should be Page 11” features another full-page table of betting odds, along with the advice that the odds given will be void after “kickoff,” all the games listed are past games, having been played in the month prior to the date of the edition.
Interestingly, the article about [the applicant] on “Page 3” of this purported edition of [Newspaper 2] reports that [the applicant] was living at his and his late father’s home address in Makeni until after his father died, which is inconsistent with evidence he gave to me about having moved with his mother in [Village] in the wake of the 2012 divorce. As noted with regard to the digital image previously submitted, the article also purports to describe events that occurred on “Sunday 4^th September 2021” which is not a real calendar date.
The article gives a wrong date for the death of [the applicant]’s father: “[January] 2018.”
I drew [the applicant]’s attention to the paper stock for the four-page second sheet of this purported print edition of [Newspaper 2]. This sheet, the only one to feature mention of [the applicant], comprises pages 3/4 and 9/10 of the purported edition. However, the paper stock is radically different from that used to print the first and third four-page sheets that comprise the newspaper: it is arguably heavier, more dense and much more bleached than the other paper stock, such that it has the appearance of being an extraneous insert. The “Page” and date headings on all these pages (3/4 and 9/10) of this sheet are also different from the format adopted and displayed on all the other pages. [The applicant]’s explanation for the seemingly discrepant paper stock and formatting of the sheet bearing pages 3/4 and 9/10 was: “Printing is like this in Africa.”
I asked [the applicant] how long he remained in Sierra Leone from the time of his father’s death. He said he remained there for one year and two-and-a-half months. He confirmed he came to Australia with Sierra Leone’s 2018 Commonwealth Games delegation as a “[Group role].” He said he had been looking for “any exit” he could make from Sierra Leone. However, when I explored this assertion with him, it became clear that he had made no other attempt to leave Sierra leone until the Commonwealth Games opportunity came up, even though he had had a passport since [2017].
Under the protocols of s.424AA, I put to [the applicant] that I had information before me that subject to his comments or response would be a reason or part of a reason for refusing him a PV. The information was that I had seen other PV applications with strikingly similar claims: father was the local Poro head: father died, leaving applicant, approaching or around [Age], uninitiated; applicant spared from initiation due to some intra-family consideration; applicant pursued by Poro Society demanding that he submit to initiation and become their leader without delay; applicant refuses and now faces death in reprisal. I asked [the applicant] if he would like to comment or respond immediately or would prefer to ask for more time. He opted to comment and respond immediately. Essentially he said that his case was true and that he could not speak for other cases. In post-hearing submissions, [the applicant]’s adviser persuasively argued that I should not rely on any factual similarities unless I had accepted the claims in at least one of the other cases. Without detailing any of those cases or their outcomes, I consider the adviser’s argument quite sound. Hence, I draw no negative inferences from the existence of individual claims that are similar to [the applicant]’s.
[The applicant] told me that when his father died of [the illness], he was living in [Village] with his mother. As noted, this information about his residential address has not been his consistent position throughout this case. [The applicant] also told me he escaped to Freetown from Makeni where he attended her church.
[The applicant] told me that his father may have been the Poro Society leader for only a smaller subdivision of Makeni. While this evidence seemed not consistent with earlier evidence that [the applicant] gave at the hearing, I attribute no negative weight to the apparent inconsistency because the Poro Society is, after all, a secret society, which means that precise information about the scope and activities of local chapters would not normally be shared with the uninitiated. One should not expect a person in [the applicant]’s claimed position to know the size, boundaries and geographical reach of his father’s chapter of the Poro Society.
I asked [the applicant] if the Makeni Poro Society previously led by his father might not already have found a new leader. In reply, he said that they had tried already to initiate his infant son. I put to him that an infant would be incapable of comprehending his membership of the society, let alone lead it: initiation ceremonies evidently conclude in the initiate being inducted into the adult world; it seemed fanciful to suggest that the Poro Society would do this to [infants].
I asked [the applicant] how the Poro Society, described by him as needing a new leader sooner rather than later, would have remained leaderless since early 2017. It seemed unreasonable to expect him to know as, again, we were talking about a secret society; the intention was to generate discussion. [The applicant] said that the Makeni Poro Society might already have a new leader. I asked him if this might not end the Poro pressure on him, adding that the new leader might be happy to remain in the role, and he said that they will still kill him even if they have appointed a new leader.
Post-hearing submissions
[The applicant]’s adviser sent a submission dated 11 October 2022. It deals mainly with concerns raised about the authenticity of the “newspaper” and “news site” evidence. It also addresses the particulars I put to [the applicant] under s.424AA, which issue is already resolved in [the applicant]’s favour, as discussed earlier.
The arguments relating to the news reports are these:
Newspaper Articles
You expressed your concerns regarding the genuineness of the newspaper articles which were presented during the hearing, referring to the following issues:
1. The different dates published for the same newspaper;
2. The different formatting/font/border of certain pages for the same newspaper;
3. The different quality of paper for certain pages for the same newspaper;
4. The nonsequential page numbers for the same newspaper.
Whilst your comments are noted, we would like to refer the Tribunal to the online version of the same articles which are still published for viewing:
[Newspaper 1 article title and URL]
[Newspaper 3 article title and URL]
The applicant submits that the articles were not only published online, but remain there for public viewing at the time of writing (over 4 years since the article in [Newspaper 3] was originally published).
We submit that the presence of the online articles should alleviate the concerns of the Tribunal regarding the genuineness of the newspaper articles. Regardless of the concerns noted above regarding the physical/hardcopy of the newspaper articles, the fact that the articles are still available online and the detailed [sic] regarding the publishing date, content and images are all corroborated between the two sources should satisfy the Tribunal that the articles are in fact genuine.
We submit that even if the Tribunal is satisfied that the Poro Society members of Makeni have taken steps to initiate a new Chief/leader given the applicants prolonged absence from the country, the fact that these articles are still available for Poro Society members and associates to view and consider would still lead the applicant to remain as a target for harm.
The Poro Society’s interest in the whereabouts of the applicant will not cease simply as a result of their decision to appoint a new Chief but they will ensure that his actions against their customs and demands should not go unpunished.
I have already examined the web version of the article in [Newspaper 1], as discussed earlier.
I was not able to access the site for [Newspaper 3] directly, however, until [the applicant] and his adviser provided a specific hyperlink. Using the link[7] provided, I found an article dated “March 21, 2018.” In this instance, the day of the week is not given. The text of the article is the same as appears in the photograph taken of “Page 4” of the purported “Tuesday 21^st March 2018” print edition of [Newspaper 3]. I have already observed that there never was a Tuesday, 21 March 2018, as suggested in the photograph of “Page 4” of the relevant print edition of [Newspaper 3].
[7] [Newspaper 3 URL]
The existence of this online article, with a date omitting the wrong day, does not help to overcome concerns about the date shown in the purported print edition. Meanwhile, the website for [Newspaper 3] has not been helpful in listing editorial or reporting staff; for example, when entered the name of the author of the “March 21, 2018” article about [the applicant], I found that that single article was the only one he, “[Mr C]”, has ever written for [Newspaper 3]. Hence, it is hard to give weight to the authority of the author in this instance. I note that the “About” and “Contact” links in the home page’s top banner are mott, in that hitting them does not lead the reader anywhere. It appears impossible to ascertain who edits [Newspaper 3], how the content is obtained, whether any of it is fact-checked, or whether its copy comes from sources other than its readers.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]
[8] MIMA v Rajalingam (1999) 93 FCR 220 .
[9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[10] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[11]
[10] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[11] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I am satisfied that [the applicant] is a Sierra Leonean national. I accept that he is of the Temne ethnic group. I accept that the Temne ethnic group is one of the ethnic groups in Sierra Leone from which the Poro Society takes initiates. As noted, I accept that [the applicant] has never been initiated into the Poro Society.
I accept that [the applicant] is from Makeni and that he moved to Freetown in April 2017 where he set up as [an occupation] and watched [Sport] games in the afternoons when the local market closed. I accept that [the applicant] was married in a Christian church in Freetown to the woman occasionally referred to in his claims as his fiancée. I accept that he and his wife have a child born after he left Sierra Leone [in] March 2018.
I have problems with [the applicant]’s claims about being a Christian. He claims he has been a Christian since he was [Age] years old, which would have been around 2012. However, he also claims he has never been baptised, which draws his genuine commitment to Christianity into question. His description of what it meant to him to be a Christian in Sierra Leone produced impressions merely of social dimensions: having some Christian friends and keeping his then-fiancée company at her church.
In this light, I am reminded that [the applicant] is known to have been a participant in parish life at the [Church] in [Suburb 2] NSW, and yet remains unbaptised. Given that this is conduct he has entered into in Australia, I am required to have regard to s.5J(6) of the Act:
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph [5J](1)(a) [of the Act], any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
The first step in this process is to determine whether [the applicant] has engaged in affiliating with a Christian church in Australia, and I accept that he has. The second step is to determine if he has done so solely for the purpose of strengthening his claim to be a refugee. A relevant consideration here is that [the applicant] is not himself claiming to fear being persecuted for reasons of being a Christian per se, even though he claims to have said that Christian beliefs prevented him from being initiated into the Poro. Meanwhile, he remains unbaptised, and although he performs tasks at his church, he does so, his pastor says, “as required.” Another relevant question, here, is whether I accept that [the applicant] affiliates with a Christian church in Australia because he is a genuine and committed Christian. Considering that he remains unbaptised and given his evidence of purely social reasons for attending Christian churches over time, I am not satisfied that he is a genuine and committed Christian, although I do accept that he genuinely enjoys the company of Christians.
I have accepted that [the applicant] has affiliated with Christians and Christian churches in the past at least pragmatically for relationship reasons and also understandably for social ones. Hence, for the purposes of determining whether [the applicant] has well founded fear of being persecuted for a reason in s.5J(1)(a) of the Act, I do not disregard [the applicant]’s affiliation with the [Church] in [Suburb 2] NSW. That said, there is no evidence before me to suggest he will be persecuted in Sierra Leone for reasons of being, or being imputed to be, a Christian. Overall, I give little to no weight in this matter to [the applicant]’s claims about being a Christian or to his association with the [Church] in [Suburb 2] NSW.
Returning to the main issue in this case, I must make findings on [the applicant]’s claims about being pressed to join the Poro Society to take over hereditary leadership of the Makeni society from his late father, who he says died [in] January 2017.
The evidence of [the applicant]’s father having led the Makeni Poro Society, having died [in] January, and having left a succession vacuum, as it were, in not already having initiated [the applicant] to be ready to take over from him, is generally sourced to [the applicant] himself and his wife. The evidence comprises [the applicant]’s written claims; his oral evidence to the delegate; his oral evidence and written submissions to the Tribunal; his wife’s 11 May 2022 letter, and the three purported news items submitted, variously, in digital files and hard copy.
Similarly, the evidence of the Poro Society seeking [the applicant] to force him to undergo initiation and threatening, for about four years already, to initiate in his stead the infant son who was born in 2018 after he, [the applicant], arrived in Australia, is also generally sourced to [the applicant] himself and his wife. Again, the evidence comprises [the applicant]’s written claims; his oral evidence to the delegate; his oral evidence and written submissions to the Tribunal; his wife’s letter, and the three purported news items submitted, as discussed, in digital files and hard copy.
[The applicant]’s position is that the three news items, variously published on line and in print editions constitute independent evidence of his substantive claims. That position calls for some examination.
Starting with [Newspaper 1] and its purported article of Monday 10 May 2021, the source of the information in the article is [the applicant]’s wife. The author says there was an interview with her. The article refers only vaguely to the author having “investigated” matters to establish that [the applicant] was indeed pressed to undergo Poro initiation. The article says that [the applicant]’s wife, without her infant son, visited his family in Makeni 2021 just as the Poro men came to demand that either [the applicant] or the “[infant] son” be given over for initiation. There is nothing about the article to suggest that the subject came to the attention of the author other than through [the applicant] and/or his wife. There is nothing in the article to suggest it has been fact-checked. The article is meanwhile sloppy with facts suggesting, as note that [the applicant]’s baby son was born in [2019] whereas it could not have been after [2018], since [the applicant] left for Australia in mid-March 2018. I do not accept that [the applicant]’s wife, the only source identified in the article, can reasonably be regarded as an independent witness in this matter. In fact, information attributed to her in this matter is arguably inconsistent: in her own 11 May 2022 letter to the Tribunal, she speaks of the Poro visit to [the applicant]’s home in Makeni as a visit at which she herself was not present, whereas she is said to have told the reporter for [Newspaper 1] that she was there in Makeni with those relatives at the time. On its face, I give this article no weight as independent corroboration of [the applicant]’s claims.
Turning to the purported “Monday 6^th September 2021” article in [Newspaper 2], this article purports to rely on “anonymous” sources. On the one hand, a source might wish to remain anonymous given the Poro Society’s notorious reputation for intimidating and punishing its public critics; on the other, a fair reading of the purportedly anonymously-sourced information in the article strongly supports the inference of [the applicant]’s wife having been that source. At one point, the article purports to relate direct speech from a Poro spokesperson, whereas the reporter would not have been present to hear it. The copy is also sloppy such as where, twice, it gives the wrong date for the death of [the applicant]’s father. On its face, I give this article no weight as independent corroboration of [the applicant]’s claims.
Finally, there is the “Tuesday, 21^st March 2018” article, also presented as the “March 21, 2018” article, in [Newspaper 3]. Putting aside, for the moment, that there was “Tuesday, 21^st March 2018,” this article purports to be able to report what [the applicant] was doing on that same date 21 March 2018, still having time on the same day to write it all down and then print and upload it all: it says he was “struggl[ing] his way out of Sierra Leone to an undisclosed location.” I consider that it is far-fetched that all this could happen and be reported on the same date. In any event, it is factually incorrect, as [the applicant] left Sierra Leone on 18 March 2018, bringing into question the reliability of the article’s author. The article cites “reliable sources” throughout, and whilst this might be expected of a reporter who wants to protect his sources from being harmed by the Poro Society, he then explicitly cites [the applicant], by telephone, and his wife as his main sources. In this article in [Newspaper 3], [the applicant]’s wife says he resisted pressure to be initiated into the Poro Society because of his “strict adherence to the Christian Faith.” She may herself believe that [the applicant] is a genuine and strict Christian, but I give little weight to her point of view on this topic because [the applicant] remains unbaptised, and gave me purely social reasons for mixing with Christians. For reasons given, I have found that [the applicant], who is not baptised, is not a genuine, committed Christian, having only a social association with the Christian Church, notwithstanding his [Suburb 2] NSW pastor referring to his involvement “in many of the church service activities, such as assisting in the adult Sunday School department, Ushering department, and many other Church activities as required.” In this light, I find it extremely hard to accept that this article in [Newspaper 3] is independent evidence of [the applicant]’s claims. Also, to the extent that the friend “[Mr D]” is reported to have recalled having helped [the applicant] get his ticket out of Sierra Leone, there is insufficient information in this article in [Newspaper 3] for me to be satisfied that he is an independent witness to [the applicant]’s claimed conflicts with the Poro Society. In fact, in his own statement of claims, [the applicant] only described having mentioned his problems to a “friend” who then helped him get a ticket to the Commonwealth Games. On its face, I give the article in [Newspaper 3] no weight as independent corroboration of [the applicant]’s claims.
In coming to the position of giving no weight to any of these three articles, I have given no weight to reporters’ references to “anonymous” sources.
As noted, I do not consider the 11 May 2022 letter from [the applicant]’s wife to be reliably and independently corroborative of his claims. In particular it does not help to establish that the Poro Society perpetrated the alleged November 2016 on [the applicant]. It does not even explicitly say she saw that attack occur. Hence, I consider unsupported all of [the applicant]’s claims about the following: his father having been the head or chief of a Makeni chapter, or group, of the Poro Society; his father’s death; his having been pressed to succeed his father (even though he was in his [Decade] and had no first-hand familiarity with Poro rules traditions; his having been spared initiation as the behest of his father because the latter loved his wife so much that he obeyed her in keeping their son out of the Society; his, and his infant son’s, having been pursued with menace by the Poro Society to submit to Poro initiation; and all that relevantly follows from these claims.
Even though they are unsupported, except in dubious letters and articles from his wife and three purported news reporters, might [the applicant]’s claims nevertheless be accepted as truthful?
In considering this, I refer to my having already given some small cumulative weight to independent information, cited earlier, about Muslims disapproving of joining the Poro Society.
In considering this, I also give some small cumulative weight to independent reporting to the effect that it would be difficult for a chief, say, of a Poro chapter, to consistently act in opposition to a secret society, such as the Poro. That is to say that, supposing [the applicant]’s father lived until [the applicant] reached [Age], I am not satisfied on the evidence before me that [the applicant]’s father would have been able to have prevented the Poro society from initiating [the applicant] throughout all those years between [the applicant] commencing puberty and reaching the age of [Age].
[The applicant] claims his father stopped him from having to be initiated due to some private consideration of the sensitivities of his wife, who he “loved very much.” On the evidence before me, I do not accept that the Poro would have indulged such a consideration. In addition, the alleged indulgence by [the applicant]’s father of his wife’s sensitivities only takes matters up to their divorce and separation in 2012. There are, therefore, four or more inadequately explained years during which [the applicant] remained initiated before his father purportedly died in 2017. Overall, I give no weight to [the applicant]’s suggestion that his father was prevented from having [the applicant] initiated due to love for his wife, [the applicant]’s mother. I consider the claim an invention.
I give some cumulative weight in this matter to independent observations about the Poro often abducting people they intend forcibly to initiate. In [the applicant]’s evidence, they failed to do this when, at a meeting in Makeni in February 2017, soon after his father’s death, he declined to answer their demand that be submit to initiation asking for 40 days to think about it. On the independent evidence before me, it is hard to believe that the Poro would have given him those forty days because, from their point of view, there was nothing to think about.
Still, just supposing that he Poro exercised arguably uncharacteristic discretion and allowed [the applicant] forty days from February 2017 to make up his mind, I find it hard to believe that he was able to communicate his refusal to be initiated and escape forced initiation at that time. Also, although he claims to have based his refusal on his “religious beliefs as a Christian,” since he claimed to see himself “as a servant of God,” I do not accept on the evidence before me as a whole that he is a genuine and committed Christian. Whereas a non-genuine Christian might plausibly use religion as a pretext for refusing Poro initiation, that is not [the applicant]’s claim in this case; rather, he claims he is a genuine Christian and I do not accept on the evidence before me that he is.

100. On the evidence before me, I consider it highly unlikely that when the Poro encounter a person they intend to initiate, but who does not want to be initiated, whether on principle or for some other individual reason, that they would generally wait around for that person to change his mind and submit voluntarily for initiation. Hence I consider it far-fetched that, after twice avoiding submission to Poro initiation in Makeni, and after slipping away from the Poro to hide in [Village], [the applicant] would have been a considered by the Poro to be a person they could trust. Hence I find it far-fetched that the Poro who found him hiding in [Village] would have let him go unattended to the bathroom in the house where they had located him.
101. In addition, I find it far-fetched that the Poro tracked down [the applicant] in Freetown, a year after his earlier escapes from them, and still gave him two weeks to return voluntarily to Makeni to submit voluntarily for Poro initiation.
102. I give weight in this matter to the fact that [the applicant] did not “flee” Sierra Leone until more than a year after his first claimed encounter with the Poro. He already had a passport in [2017] and still he did not flee. Although he told me that he spent that whole year looking for ways to escape Sierra Leone, he claims he did nothing until hearing about the Commonwealth Games in Australia, and still he waited around in Freetown from November 2017 to March 2018 until his ticket for Australia was purchased.
103. On the evidence before me, I am not satisfied that [the applicant] is a genuine Christian or “servant of Christ.” On the evidence before me, I do not accept that [the applicant]’s father was a Poro member, let alone a Poro leader who died and left him in line for headship of a Poro group in Makeni. It follows that I do not accept that the Poro has ever pursued him, or pressed him to submit to Poro initiation. I do not consider any of the written material in this matter including the three news items, on their face, to be independently corroborative of [the applicant]’s claims. I do not accept on the evidence before me that the Poro ever impinged, or impinges in any way, on [the applicant]’s or his family’s day-to-day lives in Sierra Leone. On the evidence before me, I find that [the applicant] relocated to Freetown when he did for economic and social reasons. I find that he travelled to Australia for reasons other than those claimed. I find that his PV application is based on false claims.
104. I am all the more confident that [the applicant]’s claims are not genuine because all three of the news items submitted to Tribunal are, in my view, self-serving forgeries, and amateur ones at that. Even allowing for [the applicant]’s suggestion that African newspapers are more susceptible to typographical and layout errors than, say, “Western” journals of record, I do not accept that that is all that is at play in the anomalies identified in the newspaper evidence. On the evidence before me, I find there has been deliberate fabrication in the making of all the newspapers. My conclusions here are reinforced by independent evidence of the prevalence of document fraud in Sierra Leone. This casts significant doubt on the authenticity of the articles themselves but, as noted, I have not even been able to give them any weight on their face.
105. Still, there remains the argument that since least two of these three articles exist and remain online, [the applicant] faces a real chance of being persecuted because they are all directly critical of the Poro Society. I have duly considered this claim. [The applicant]’s wife claims she has been in hiding since September 2021, but the earliest article, the one in [Newspaper 3], is said to have been posted online in 2018 and there is no evidence submitted of any harm having come to the author of the article or to [the applicant]’s wife and child in the years since then. Although it is claimed that she has been accommodated by a local Freetown pastor for several years, I am not satisfied that this arrangement means she was in hiding. In the meantime, she has not evidently been harmed and the alleged threats to abduct and initiate her infant son have come to nothing. Ultimately, I am not satisfied on the evidence before me that the news items posted on the Internet give rise to a real chance that [the applicant] will suffer serious harm in Sierra Leone.

106. I have also given some negative weight in this matter to [the applicant] having set up shop, or a market stall, in Freetown, where he evidently worked daily over about a year, heading off to watch [Sport] every afternoon when the market closed. I find that this behaviour is inconsistent with a person who claimed to be hiding from the Poro and looking for every possible way to get out of Sierra leone at the time.
107. For clarity, I am not satisfied that [the applicant] faces a real chance of being persecuted in Sierra Leone for reasons of any conduct in Australia, such as not returning to Sierra Leone after the 2018 Commonwealth Games and affiliating with the [Church] in [Suburb 2] NSW.
108. Finally, it is not necessary for me to make findings as to nexus with the criteria in s.5J(1)(a) because I find the claims in this matter lacking in credibility.
109. Having considered all of the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Sierra Leone in the reasonably foreseeable future for any reason in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
110. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
111. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) 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.
112. Relevant to this, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).
113. “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.
114. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
115. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
116. 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.
117. Accepting that [the applicant] is a national of Sierra Leone, I find that Sierra Leone is the receiving country in this matter.
118. [The applicant]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed due to lack of credibility and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant]’s claims can no more succeed as complementary protection claims than they have as refugee claims.
119. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sierra Leone, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
120. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
121. There is no suggestion that [the applicant] 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, he does not satisfy the criterion in s.36(2).
decision
122. The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2022] AATA 4420

18 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction