1815920 (Refugee)

1815920 (Refugee) [2022] AATA 4888 (28 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Liz Hug (MARN: 0316123)
CASE NUMBER: 1815920

COUNTRY OF REFERENCE: Sierra Leone
MEMBER:Ann Duffield
DATE:28 October 2022
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 October 2022 at 12:48pm

CATCHWORDS
REFUFEE – protection visa – Sierra Leone – political opinion – All People's Congress (APC) activist – religion – Christian – race – Krio – particular social group – failed asylum seeker – returnee from the West – political violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 on 25 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sierra Leone applied for the visa on 23 April 2018. The delegate refused to grant the visa on the basis that he was not a person to whom Australia had protection obligations.
The applicant appeared before the Tribunal on 26 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The applicant was represented in relation to the review.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 issue in this case is whether the applicant is a person to whom Australia has protection obligations. For the following reasons, the Tribunal has affirmed the decision not to grant the applicant a protection visa.
BACKGROUND
The applicant is a citizen of Sierra Leone born on [date] ([age] years old). There is no evidence that the applicant is not who he claims to be or that he is a citizen of another country. His passport expired [in] 2019. There is no question that this is a fraudulent document or that he is anyone other than who he claims to be.
He has previously travelled to [specified countries] to [attend professional events]. He came to Australia to attend [a specified event]. [Details deleted.]
The applicant applied for the relevant visa [in] February 2018 and that visa was granted on [the same day]. The applicant arrived in Australia on that visa [in] March 2018 and lodged the application for a protection visa on 23 April 2018. That application was refused on 25 May 2018. He currently holds a bridging visa in relation to this application.
The applicant was unmarried and had no children when he arrived in Australia. He told the Tribunal that he is currently partnered and has been living with his partner for more than 12 months.
PROTECTION CLAIMS
The applicant provided the following statement to the Department in his visa application of 18 April 2018:
a. “I fear persecution in Sierra Leone on the basis of my actual or imputed political opinion and activity, and other reasons. I fear harm from the authorities and members of the community. I know this is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information to my claims including my fears if returned to Sierra Leone at a later date. I also request the department to conduct an interview with me in relation to my claims for protection.”
The applicant also went into further detail in his interview regarding his claims and it was accepted by the Department that the applicant came to Australia to [attend the professional event], and that he did indeed [attend].
The application for the protection visa made by the applicant was very brief, only containing the aforementioned statement and some details of where he was born and his citizenship. He was asked why this was and he was found to provide a reasonable explanation, stating that he had asked for assistance from a migration agent who he had understood would later provide more information, but did not. This explanation was accepted by the Department.
The applicant claimed that he was asked to be a community leader by the APC because he was well known in the community and was accustomed to working with young people. However, he did not have any evidence to prove his involvement with the APC and stated that he was never paid or given any documentation or job title.
There has been substantial evidence, some of which was provided in the delegate’s decision, to support the applicant’s claims that there were political tensions and incidents of violence in the lead up to the 2018 election and in the aftermath. The Armed Conflict & Event Data Project (ACLED) also reported that the run-up to the election ‘was marked by an increase in political violence across the country’, much of which was between the APC and the SLPP. There were attempts by the leaders of the parties at reconciliation, but the violence continued.
However, the Department found that the applicant’s claims about the men who had come to his home and threatened him and his roommate were not convincing. This was due in large part to the applicant’s lack of any photos or documentation regarding the rallies he claims to have held for the APC, leading the Department to believe that if the rallies were as small as the applicant claimed, it seems unlikely that many people would have even known that he was a supporter of the party.
The voice messages the applicant received were also considered by the Department to be fabricated. They were recorded on [a day in] May 2018, when there is no evidence that the post-election conflicts continued after April 2018. The applicant also stated that because his rallies were small, he had never encountered any conflict from SLPP supporters. Therefore, the Department determined that someone who had not previously engaged in conflict with SLPP supporters and who was in Australia would not be likely to receive threatening voice messages.
Before the Tribunal
The applicant provided the Tribunal with a further statement prior to the scheduled hearing along with some screenshots of [social media] pages, a doctor’s report on an alleged assault on the applicant’s father, some articles in relation to recent conflict and curfews in Sierra Leone and three letters dated [in] May 2018 from [Official A] and [Official B] on letterhead for the All People’s Congress in relation to the applicant’s participation in elections for Constituency [1]. The Tribunal notes these letters were written after the applicant arrived in Australia in March 2018, prior to his application for the protection visa on 23 April 2018 and prior to the refusal decision on 25 May 2018. The letters state that the applicant was involved in the APC and he would be in danger if he returned to Sierra Leone. There is a copy of a letter from [Official A] to the local [police] stating that the applicant’s father was attacked in May 2018 and his house ransacked. It is claimed that the perpetrators were demanding that the applicant be handed over to them because of his loyalty to the APC.
After the hearing the applicant also provided some graphic videos of violence in Sierra Leone. They did not appear to be in relation to his specific claims or attacks on himself or his family, but to the generalised violence that exists in Sierra Leone at the present time.
Country information
This presidential election was the most competitive for at least a decade. It resulted in only the second democratic transition of executive power in Sierra Leone’s 57 years of independence. Power has alternated between the SLPP and the APC (as well as periods of military rule) since independence in 1961: the SLPP was in power from 1996 to 2007 and the APC was in power from 2007 to 2018. Sierra Leone is still living in the shadow of periods of turmoil, having been a one-party state under the APC from the mid-1970s until 1992 when a military coup banned all political parties until 1996. The Truth and Reconciliation Commission blamed poor governance in all branches of government as having been a major contributing factor to the start of the violence which descended into civil war in the period of 1991-2002. The main parties historically gained the bulk of their support from regional heartlands, which also correlate with tribal groups. The SLPP gains most of its support from the South and the East, whereas the APC gains its support mostly in the North and the newly created Northwest regions. This proved to be the case in this election also and led to the APC claiming that the SLPP was a divisive regional/tribal based party, and vice versa. The fifth region, Western Area, which contains Freetown, the more ethnically diverse capital, was considered a swing region by the parties. The country is divided into 16 districts, the smallest of which elects 4 MPs, and the largest (Western Area Urban) elects 20 MPs to the 132-seat elected parliament. In the 7 March four-tier elections, Sierra Leoneans voted for a president, 132 members of parliament, 7 city council mayors and 15 district council chairpersons, and 489 local councillors. The president is directly elected in a single national constituency for a term of five years. If no candidate polls more than 55% of the valid votes, the two candidates with the most votes compete in a second round within 14 days following the announcement of the results. There is a constitutional limit of two terms whether consecutive or not. Members of Parliament, mayors/chairperson and most local councillors are elected by the ‘first-past-the-post’ electoral system in single member constituencies by a simple plurality with a mandate of five years for MPs and four years for local government representatives. The city councillors in Bonthe, Koidu, Makeni and Port Loko are elected in multi-member districts. EU Election Observation Mission – SIERRA LEONE 2018 Final Report Presidential, Parliamentary and Local Council Elections 2018 Pages 8- 9
In June 2022, Politico SL reported that violence had ‘reportedly flared up between supporters of the APC and SLPP at Constituency 056 in Tonkolili district where the country’s two main political parties are vying for the vacant parliamentary seat after the substantive SLPP parliamentarian Musa Jalloh quit, becoming a Paramount Chief’. Officials of both the APC and SLPP had ‘traded accusations at each other for starting the violence that left several people injured and at least one house burned’. ‘SLPP district chairman reacts to political rally ban’, Abu, A, Politico SL, 26 June 2022, 20221010183219 SLPP district chairman reacts to political rally ban | Politico SL
On 14 June 2022, the Concord Times reported that the United Nation’s Resident Coordinator, Babatunde Ahonsi, had called for an investigation into the violence between the SLPP and the APC in Tonkolili district. ‘Tonkolili bye-election violence: UN Rep, PPRC and ECSL call for investigation’, Koroma, A, Concord Time SLPP district chairman reacts to political rally ban | Politico SL
On 10 August 2022, anti-government protesters in Sierra Leone clashed with police in the capital, Freetown. Aljazeera reported that six police officers were killed in the violence. The protests were reportedly over the rising cost of living, with demonstrators calling for the departure of President Bio. According to Aljazeera, ‘[l]ong-standing frustration with the government in some quarters has been exacerbated by rising prices for basic goods in the West African country, where more than half of its population of around eight million live below the poverty line, according to the World Bank’. ‘Sierra Leone imposes curfew amid anti-government protests’, Aljazeera, 10 August 2022, 20221010144753; Sierra Leone imposes curfew amid anti-government protests | Protests News | Al Jazeera
An article dated 11 August 2022 in The Sierra Leone Telegraph indicates that ‘Sierra Leone’s main opposition political party – the APC, last night issued a statement condemning yesterday’s violent protests which saw the killing of civilians and security officers’. The main opposition APC was ‘being accused by supporters of the government and ruling SLPP party of orchestrating the nationwide protests’. The article also states that ‘[s]ince President Bio’s election to office in 2018, there has been a continuous rise in political tension and violence in the country, which many say is made worse by a highly politicised and unprofessional police force’. ‘Opposition APC says it unreservedly condemn all forms of violence’, Thomas, A R, The Sierra Leone Telegraph, 11 August 2022, 20221010180005 Opposition APC says it unreservedly condemn all forms of violence – Welcome to the Sierra Leone Telegraph
According to a Politico SL article dated 15 August 2022, in an address to the nation, President Julius Maada Bio had ‘described the violent protests of Wednesday, August 10 as a well-planned and financed insurrection that was executed with shocking brutality’. Bio ‘made reference to the sabre rattling by some politicians of making the country ungovernable, and of people on social media who identified themselves as APC Warriors, PPP and others that he said were determined to seize power even if it meant hundreds of people dying in the process’. President Bio ‘condemned the use of small children in the protests in some areas and vowed to crack down on those he called “violent insurrectionists”’. He ‘dismissed the notion of it being a peaceful protest or that it related to the soaring prices of goods and services due to the global economic meltdown, and that it was intent on overthrowing the government as witnessed in the killing of Police Officers, and the destruction of property belonging or associated with the government’. The protests had ‘left some six police officers and 21 civilians dead’. ‘Sierra Leone president says August 10 protests w ere a planned insurrection’, Abu, A, Politico SL, 15 August 2022, 20221010172623 Sierra Leone president says August 10 protests were a planned insurrection | Politico SL
On 17 August 2022, the leader of the main opposition APC in parliament, Chernor Maju Bah, called for an independent committee to quickly investigate the August protests and their aftermath. He also asked that the number of those detained be made public, and that they be granted access to their families and legal representation, and speedy and fair access to a court of law. Bah also ‘claimed that some citizens of their party, who were arrested before the protest on the 10th of August 2022,’ were ‘still in detention’. ‘Opposition calls for update on Sierra Leone protest deaths’, Kargbo, N, Politico SL, 21 August 2022, 20221013105451; Opposition calls for update on Sierra Leone protest deaths | Politico SL
Also on 17 August 2022, BBC News reported that police had killed an APC member suspected of being one of the people behind the protests. The article states that ‘[a]ccording to the police, Hassan Dumbuya - popularly known as Evangelist Samson and a member of the All People’s Congress - was killed when officers exchanged gunfire with a neighbourhood group in the capital Freetown’. The clash ‘happened when officers were in the hideout of alleged suspects behind last week’s violent protests’. Other were reported to have disputed the police version of events. The article indicates that President Julius Maada Bio had ‘said that the protests were an attempt to overthrow his government and that the perpetrators will face justice’. There were twenty-one civilians and five police officers ‘killed during the violent protests over the rising cost of basic goods. Rights groups have called for an independent investigation into the protests’. The article also states that the killing of Dumbaya, who was ‘[a] prominent critic of Sierra Leone's government’, raised ‘serious concerns about extrajudicial killings and accusations of targeting opposition figures’. ‘Sierra Leone opposition figure Hassan Dumbuya killed’, Naadi, T, BBC New s, 17 August 2022, 20221010163520; See also: ‘Sierra Leone appoints team to investigate deadly protest’, Cham, K, The East African, 25 August 2022, 20221013190248; ‘Opposition calls for update on Sierra Leone protest deaths’, Kargbo, N, Politico SL, 21 August 2022, 20221013105451; ‘S.Leone Opposition Demands Probe Over Deadly Protest’, Agence France Presse, 18 August 2022, 20221013182615 Opposition calls for update on Sierra Leone protest deaths | Politico SL

In another article dated 19 August 2022, BBC News reported that President Bio had said that the nature of the previous week's protests against his government had ‘caught the police force by surprise’. Bio said they ‘knew they (protesters) wanted to come out, but we did not have an identifiable group or person leading them’. He ‘again blamed the opposition for trying to topple his government, an accusation the opposition All People's Congress party has denied’. Bio ‘said a forensic and independent investigation was being conducted to unravel the truth’. The protests had ‘resulted in 25 deaths including five police officers’. ‘Sierra Leone protests caught police unawares: President’, BBC New s, 19 August 2022, 2022101015343825 Sierra Leone: Opposition probes into Hassan Dumbuya's death | Africanews
CLAIMS AND EVIDENCE
The applicant’s involvement in the 2018 election campaign appears to have been in the local council elections for Constituency [1] – this constituency was won at the Federal level by the Hon [Representative A], a member of the APC on a strong majority. [Representative A] is a member of the following Parliamentary committees: [Committees named]. There is no information before the Tribunal to indicate which candidate or candidates were successful at the council level in Constituency [1], however at the hearing the applicant told the Tribunal that his candidate was unsuccessful.
In his statement to the Tribunal dated 19 September 2022 the applicant states that he fears persecution in Sierra Leone for the following cumulative reasons:
a.Actual or imputed political opinion and activity as a community activist for the APC.
b.On the basis of his membership of a religious minority being Christian and his father being a high-profile [church leader].
c.On the basis of his membership of the Krio ethnic group which is a small minority group in Sierra Leone.
d.On the basis of his membership of a particular social group being failed asylum seeker.
e.On the basis of his membership of a particular social group being [a profession 1] returnee from a Western Country.
The applicant claims that the government of Sierra Leone cannot protect him against the fear harm because the police are ineffective against a high level of violence, and he cannot relocate to anywhere else in Sierra Leone.
Tribunal hearing
The Tribunal accepts that the applicant has a subjective fear of suffering harm if he returns to Sierra Leone by reason of his political opinion, membership of a number of particular social groups and his religion. The question is whether that fear is well founded.
The applicant has been living in Canberra since 2018 and working for [a service] company. He rents accommodation with his partner of one year. She is an Australian citizen.
The applicant has a very active [social media] page with over [number] followers. He regularly posts pictures of himself and his friends.
The applicant claims he was a well-known [profession 1] in Sierra Leone and had [travelled] internationally for several years. He was [offered to attend the professional event] at the time of the incidents he reports. He was [a leader] of his [professional group]. The [group], and himself, were sponsored by an APC candidate for the local council elections, [Official B]. [Official B] provided the [professional group] with financial support, transport [and supplies].
The applicant told the Tribunal that he was involved with [Official B’s] campaign and went door knocking and arranged for people to attend several rallies where [Official B] spoke. He said that he was looked up to by the youth in the area and he told them about the APC and to vote for [Official B].
Asked about his specific role he told the Tribunal that he had some influence on the youth and was asked by the party to talk to them and mobilise them to participate in street stalls and rallies. He said he went door to door around the community for around a year prior to the election in March 2018. He said that there were three rallies over the course of that year and he told people to participate in them. He said that he told people to go and vote.
The applicant said that [in] February 2018 there were several attacks against him during generalised campaign violence in the city ahead of the election and he was getting threats because of his political activities.
The applicant said that he fled to another city (Bo) where he remained for several weeks before returning to Freetown. He departed for Australia for the [professional event] [in] March 2018. Country information demonstrates that as the new governing party established itself in power, supporters attacked known supporters of the defeated APC.
In early April 2018 the president’s election was declared.
The applicant also states that after his arrival in Australia he received a phone call from his roommate in Sierra Leone who told him that a group of men from the SLPP had gone to his home. He states that those men beat up his friend and asked him for the whereabouts of the applicant. The applicant claims that he believes they came to his home looking for revenge because of his support and campaigning for the APC. This account is supported in an affidavit by [Official A] who also reported the incident to the local [police] in Freetown. In that affidavit [Official A] also reports two additional attacks on [days in] May by gangs of the SLPP against the home of the applicant and his father, a [leader] in the [denomination] church. There is also a medical certificate to support the claims of the attack against the applicant’s father.
In that affidavit, [Official A] also states that the SLPP gangs continue to harass and harm the applicant’s father and family, demanding they hand over the applicant because of his loyalty to the APC and his allegiance to [Representative A] who was elected as a member of parliament for Constituency [1]. There is no evidence that the police responded to this complaint and apprehended the perpetrators.
The delegate did not accept the applicant’s account of this attack against his friend or family or the reasons for it, stating that there was no evidence that the applicant had any contact with the APC or was involved in campaigning or was a community leader. The Tribunal notes the delegate’s concerns but accepts that such evidence would not be easy to come by. That being said, the applicant has provided letters from his patron and supporter and the Tribunal does accept this as evidence of his involvement with the APC and [Official B’s] election campaign.
The applicant’s evidence at the hearing was not particularly persuasive. He was unable to describe in any meaningful detail the policies of the APC or why he would align himself with such a group except that [Official B] was associated with it. The Tribunal accepts that the applicant may wish to help his friend and supporter in his attempts to be elected. However, he described his activities as doorknocking and helping to encourage people to attend three rallies. He told the Tribunal he had no organisational role in these rallies except to tell people at the homes he door-knocked to come.
The applicant has also claimed to fear persecution on the basis of his ethnicity as a minority Krio, a Christian, a perceived wealthy individual, a [high profile profession 1] and a returned failed asylum seeker from the West. Combined with his activities in supporting the APC during the 2018 election, the applicant claims his profile could be elevated to the extent that he would or could come to the negative attention of SLPP members, particularly as another election will be held on 24 June 2023.
The Krio in Sierra Leone are a minority ethnic group usually associated with the political and social elite. They are generally well educated and hold positions of power in politics and the community. The applicant claims that in the current climate of political, social and economic unrest in Sierra Leone, he fears that belonging to the Krio ethnic group could become another reason for being targeted for harm by members of the majority ethnic group. There is no evidence before the Tribunal that the Krio are persecuted in Sierra Leone, or particularly targeted during periods of instability and violence, and the applicant has presented none.
The Tribunal has considered the applicant’s claim that he will be persecuted because of his Christianity and has pointed to the attacks on his father who is a well-known [church leader]. The Tribunal accepts that the applicant’s father has been the target of a violent assault and received hospital treatment as a result. The Tribunal also accepts that the assault was reported and that no action by the authorities to apprehend the perpetrators appears to have resulted. However, apart from the statement by [Official A] whose interest is to support the family, it is not certain that the reasons for the attack were as claimed. The attack could have been entirely random and unrelated to the applicant.
Christians are not an insignificant minority in Sierra Leone, representing some 22 per cent of the population which is majority Muslim. Again, the applicant claims that in a climate of unrest and upheaval, and as the son of a prominent Christian leader, that he will be targeted for harm. Country information reports very little inter faith rivalry or violence in Sierra Leone. During the COVID restrictions there was some disagreement about policies but little reported violence. The President and Vice President are of different faiths and this practice is credited with the religious harmony experienced in the country.
The applicant has also stated that he will be targeted because he is a failed asylum seeker. He claims that the government of Sierra Leone has repeatedly warned [citizens] against seeking asylum in other countries as they consider it an unpatriotic act. He states that if he returns, he will be prevented from [his profession] and, as [it] is his passion, he fears for his mental health if he cannot [work in this profession] again. He states that he has continued [his profession] in Australia for the past four years.
The applicant has provided no evidence of his continued participation in [his profession] in Australia except a few photographs on his [social media] page. He has not provided any supporting statements from [a professional group], for example, or [managers] or other people with whom he may be [working]. Equally, there is no evidence that the applicant would not be able to continue his [profession], if he is willing and able to do so, should he return to Sierra Leone. Even if he isn’t, this does not amount to persecution. The applicant has provided no further evidence, apart from his claims, that returning failed asylum seekers from the [his profession], or any other [similar returnees] have been persecuted or harmed in any way upon their return to Sierra Leone.
FINDINGS AND REASONS
Well-founded fear: Political opinion
The country information cited above shows that over the past two years the SLPP have blamed the APC for instigating and supporting sporadic and violent classes across Sierra Leone. In an address to the nation, President Bio accused the APC of aiding and abetting the violence by financing, planning and inciting crimes he labelled as “terrorist attacks”. Another article indicates that President Bio vowed to crush an act of terrorism that was allegedly perpetrated against the state and accused the APC of being behind it. Bio has ordered security forces to take tougher actions against anyone found to be involved in acts which he describes as premeditated and targeted at the state and public officials. The government continues to declare that the unrest of the past several years were part of a calculated plot by the APC to fulfil a threat by its defeated candidate to make the country ungovernable. The APC has denied the accusations.
The applicant’s activities were in 2018 and it remains to be seen whether the risk of harm exists now or in the foreseeable future for supporters of the APC, including the applicant. This was put to the applicant during the hearing, and he states that there will be new elections in Sierra Leone in 2023 and his support of the APC in the previous election will not be forgotten and he will be targeted once again for being a supporter of the APC. The applicant claims that he is high profile and well known in Sierra Leone and will be recognised and targeted should he return. He claims that he has [number] followers on [social media]. The Tribunal has looked at his page and noted it contains no political or social commentary about Sierra Leone or Australia, or indeed anywhere else. It contains a vast number of pictures of the applicant and his friends. The applicant has presented no evidence that he has continued his political activity in support of the APC since 2018 either in Australia or anywhere such that it might come to the attention of the ruling party in Sierra Leone.
The Tribunal has considered the voice messages the applicant received [in] May 2018. The Tribunal has no way of verifying whether those messages were made by members of the SLPP or someone assisting the applicant in supporting his claims. Given the Tribunal has formed a view that the applicant’s involvement in the election was at a very low and localised level, it is unlikely that the applicant would receive such messages from members or supporters of the SLPP.
Country information indicates that there is continued unrest in Sierra Leone between the opposing political parties and that there have been deaths as a result of violent clashes in the streets. There is a chance that the violence will escalate in the lead up to the elections.
However, the applicant was a low-level volunteer doorknocking for a low level, relatively unknown council candidate in the local elections who did not win his seat. The applicant was not an organiser, official or paid worker. The Tribunal is not satisfied that his activities did or would attract the attention of SLPP supporters or any other individual or group such that he would be targeted for harm or persecution for his past political activity or imputed views should he return to Sierra Leone either now or in the reasonably foreseeable future.
Well-founded fear: Ethnicity
The applicant has not claimed that he was targeted, harmed, threatened with harm or persecuted as a result of his Krio ethnicity in the past. He implies that as a group considered to be highly educated and a member of the political and social elite, that he will be targeted during periods of economic and political instability in the future.
There is no evidence before the Tribunal that the Krio are persecuted in Sierra Leone, or particularly targeted during periods of instability and violence, and the applicant has presented none.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of his ethnicity or that he has been or will be targeted for harm or persecution by reason of his ethnicity should he return to Sierra Leone either now or in the reasonably foreseeable future.
Well-founded fear: Religion
The applicant has not claimed that he was targeted, harmed, threatened with harm or persecuted as a result of his Christian religion in the past. He implies that he will be targeted during periods of economic and political instability in the future and that his father, a high-profile [church leader] has been attacked in the past because he is a Christian. The applicant also believes that his father was targeted by supporters of the SLPP because of the applicant’s activities. The Tribunal notes that the applicant has provided corroborating evidence of this from his patron [Official B].
However, even if this event occurred for the reasons stated, it was in the immediate aftermath of the election when there was widespread violence committed by supporters of both political parties. The applicant has not claimed that his father or any other members of his family have been targeted for this or any other reason since that time.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of his Christian religion or that he has been or will be targeted for harm or persecution by reason of his religion should he return to Sierra Leone either now or in the reasonably foreseeable future.
Well-founded fear: Returning [profession 1] failed asylum seeker and perceived wealth
The applicant has not provided any evidence that failed asylum seekers from [any] international [events] have been or will be persecuted upon their return to Sierra Leone. The Tribunal put to the applicant that none of the [participants in the professional event] have returned to Sierra Leone and whilst it may be possible that they may be denied further opportunities to [travel], that in itself did not amount to persecution.
The applicant also states that he will be seen as being privileged and having made a lot of money because he lived overseas. He said with an election coming up, the youth will be angry and target him. He said that there is a history of violence in Sierra Leone that has become normalised and against that backdrop his cumulative claims will lead to his persecution.
There is no doubt that there is and will continue to be violence in Sierra Leone between the APC and SLPP supporters and for other reasons including economic hardship. It may well also be the case that individuals who are perceived as privileged may be targeted by criminals and other groups who seek a monetary gain as they might be anywhere else in the world. However, the Tribunal does not accept that the applicant’s combined characteristics are such that he would gain the attention of any group or individual that would wish him any harm such that it would amount to significant harm for the purposes of the Refugees Convention or Complementary Protection.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of his being a returning failed asylum seeker [profession 1] who may be perceived as wealthy, or that he has been or will be targeted for harm or persecution for these or any other reason should he return to Sierra Leone either now or in the reasonably foreseeable future.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons above the Tribunal finds there is no credible evidence to indicate that the applicant faces a real chance of persecution for any of the stated reasons. Also, in the absence of any credible evidence to the contrary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sierra Leone there is a real risk that the applicant will suffer significant harm for the reasons stated or for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ann Duffield
Senior 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 4888

28 October 2022

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