1816588 (Refugee)

[2022] AATA 679

1816588 (Refugee) [2022] AATA 679 (10 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816588

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Jane Marquard

DATE:10 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2022 at 12:05pm

CATCHWORDS

REFUGEE – Protection visa – Sierra Leone – political opinion – member of APC government – campaigned against current SLPP government – extra-judicial killing of uncle – cousin’s death – supported APC party during 2018 campaign – Temne ethnicity – threatened and attacked – credibility issues – low-level supporter – generally low level of violence with little individual targeting – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

CASES

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510

ABT16 v Minister for Home Affairs [2019] FCA 836

Applicant A v Minister for Immigration and Ethnic Affairs (1996–97) 190 CLR 225

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Chan v MIEA (1989) 169 CLR 379

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 32 ALD 347

Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND TO THIS REVIEW

1. The applicant is a [age]-year-old man from the Eastern Province of Sierra Leone.

2. He arrived in Australia [in] April 2018 on a [temporary visa]. The applicant applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 2 May 2018. He claims protection on the basis of his political opinion and/or ethnicity.

3. A delegate of the Minister for Home Affairs refused to grant the visa on 5 June 2018.

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.

   SUMMARY OF FINDINGS

5. For the reasons set out below, the Tribunal has decided to affirm the decision under review. The applicant has submitted that he has abided by the law in Australia, and is supporting his partner, an Australian citizen, and her three children. He and his partner also have their own baby. While the Tribunal accepts that the applicant has an Australian family and has complied with Australia laws, this is relevant to his partner visa application, whereas the task of this Tribunal is to determine whether the applicant meets the criteria for a protection visa, and the Tribunal is not satisfied that he does.  

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

6. 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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision. An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Act. 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.

   Refugee criterion

7. Section 36(2)(a) of the Act 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.

8. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of that country: s 5H(1)(a) of the Act.

9. Under s 5J(1) of the Act, 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 must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

10. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996–97) 190 CLR 225 at 233 (Brennan CJ).

11. 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–5LA of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

12. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

13. 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) of the Act, which are extracted in Attachment A to this decision.

    The applicant must satisfy the statutory elements

14. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836). It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act. It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia[1999] HCA 14; (1999) 197 CLR 510 at [187]).

    Mandatory considerations

15. In accordance with Ministerial Direction No.84,[1] made under s 499 of the Act, the Tribunal must take account of the Refugee Law Guidelines[2] and Complementary Protection Guidelines[3] prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[4]

    [1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.

    [2] Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [3] Department of Home Affairs, Policy – Refugee and humanitarian – Complementary Protection Guidelines

    [4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

    CLAIMS AND EVIDENCE

16. The Tribunal has taken into consideration independent country sources, the applicant’s evidence before the Department and new evidence before this Tribunal.

    Country information – Sierra Leone

17. The primary sources taken into consideration by the Tribunal are cited in the findings and reasons later in this decision. A brief overview of Sierra Leone’s history and politics is set out below.

18. Sierra Leone was the departure point for the transatlantic slave trade, and the capital Freetown, was founded as a home for repatriated former slaves in 1787. The country went into civil war which ended in 2002. Since then it has experienced substantial economic growth as it is rich in diamonds and other minerals. The country has a population of 7.4 million, and English and Krio are the primary languages. Both Islam and Christianity are practised. Life expectancy is low at 51 years.[5]

    [5] BBC News, ‘Sierra Leone country profile’, 5 April 2018, >

    The All People’s Congress (APC) returned to power in 2007 after winning the election that same year. The APC then remained the ruling party of the country until presidential elections on 4 April 2018 when, in close elections, the Sierra Leone People’s Party (SLPP) candidate Julius Maada Bio won the presidency.[6] Mr Bio is a former soldier who took part in a military coup in 1992. He narrowly beat the APC candidate, Samura Kamara.[7] In March 2021, following a by-election, the SLPP held 59 seats in parliament and the APC 58 seats.

    [6] Reuters, ‘Julius Maada Bio sworn in as new Sierra Leone President’, 4 April 2018

    [7] BBC News, ‘Sierra Leone country profile’, 5 April 2018, >

    According to the World Bank:

    The new Government launched the Medium-Term National Development Plan (MTNDP - 2019-2023), which maps out immediate and long-term development goals and commitment to transform from a fragile state into a stable democracy. Tensed political rivalry especially between the ruling Sierra Leone People’s Party and the main opposition All People’s Congress continues to characterize the complex nature of politics and this sometimes results to violent confrontations. The setting up of the Commissions of Inquiry to investigate the governance activities of the past administration, the annulment by the High Court of the election of 10 opposition MPs in 2019, and the trial of some senior opposition members for various offenses, added to the political tension. A Peace and National Cohesion Conference was convened in May 2019 to help foster national unity, and Parliament in December 2020 passed into law the Independent Commission for Peace and National Cohesion. The Government recently repealed the draconian Part 5 of the Public Order Act of 1965 that criminalized libel, while the President has also signed into law the abolition of the death penalty.[8]

    [8] World Bank, ‘The World Bank in Sierra Leone’, before the Department

19. A summary of the evidence provided to the Department follows.

20. The applicant said that he was born in Koidu Town, Kono District, Eastern Province. He lived from [year] to 2013 in Freetown as the rebels attacked Koidu during the civil war, so his parents moved the family to Freetown. Both his parents died during the war when he was aged [age]. He said that after that, he lived with his aunt in Koidu, with her child and his [brother]. Later his aunt fled, as her house was attacked at election time. He thinks that they fled to [a named location]. He said that he did not know the whereabouts of his [brother].

21. The applicant told the Department that he then returned to Koidu Town from 2013 until he left for Australia in 2018. He speaks English and Krio. He belongs to the Temne ethnic group and is a Christian. He said that Temne people are not identified by the way they look but can be identified by surname or language. He said that he does not speak Temne because his parents did not communicate with him in Temne and because was born in Koidu, rather than Makeni, a Temne area.

22. He stated that he finished high school in [year]. From 2009 to 2013 he studied [a course] at [an educational institution] in Freetown. He said that he never worked in Sierra Leone and was supported financially by friends.

23. In his application to the Department, he said that he left Sierra Leone because he fears serious harm due to ‘his policies’ and ‘other reasons’. He said that he was a member of the APC government that campaigned against the current government, the SLPP. The applicant provided a scanned copy of his APC membership card.

24. At interview he said that he joined APC in 2010 because his uncle, who was a [supporter], was killed in 1992. He believed that the leader of the SLPP, Julius Maada Bio, was one of the masterminds who brought about the death of his uncle. He said that his family all supported APC. He was an ordinary member and had no role. He said that he was in the campaign team in February 2018 but from 2010 to 2018 was not active as he was studying. He said that during the elections he travelled from area to area meeting people, telling them how APC had constructed roads, built the national museum and other infrastructure.

25. He said that he supported APC because he wanted to see Sierra Leone become a better place to live and SLPP did not improve infrastructure or lessen unemployment.

26. The applicant claimed that if he returned to his country he would be recognised by many of his former opponents because of his active campaigns during the campaign period. He claimed that he was continuously threatened when living there and attacked on several occasions. He said they wanted to kill him because of his tribe and political affiliation. He said that he fears that SLPP supporters and their vigilantes would intimidate, threaten, torture, attack or kill him by having his head cut off.

27. In his application he claimed that his cousin was attacked [in] February 2018 and beaten to death. He said that his cousin died in his arms the next day in hospital. In interview he said that his cousin had gone on a date to a club in town around midnight and was returning home when attacked by a group of thugs.

28. He said at interview that he thought that he was subject to violence three times but could not recollect when they were. The first he thought was in February 2018, he ‘guessed on [date]^’. He said in his interview that he was about two miles from home, returning from town to his home, and he saw three people looking at him and then they attacked him. They said that they knew he was an APC supporter and that when they came to power, they would kill him by beheading him. They had a knife, took his telephone and wallet and ‘beat me up badly’. He said that ‘God helped me run away’.

29. The second time he was attacked was in March 2018 before the election on 7 March 2018. He was visiting a friend, when he was attacked on the way by two men. The third incident was [in] April 2018. He reported the first incident to the police, but they did nothing.

30. He said that he found out he had a visa on 27 March 2018.

31. He said that his house was attacked [in] April 2018, the day after election results were announced. He claims that his family had to leave, and he heard from his friend that they went to [a named location].

32. The applicant stated that he came to Australia with the intention of seeking asylum as the APC had lost the first round of the elections. Following this, some of his relatives told him that SLPP members were waiting for him, and he thought that his life was in danger.

33. He said that he could be traced in other border countries or other parts of Sierra Leone. He claimed that the police force supports the party of the day. He had made reports to the police, but they refused to take his reports. He said that although he would be able to enter Nigeria, Ghana, Liberia and Guinea visa-free, there are human rights abuses in those countries, and he would not be protected.

34. He said that he obtained a passport in 2017 in case of an emergency.

35. He said that a person from the APC helped him apply for a visa, but he did not want to disclose the person’s name. He said that he did not pay him but rendered domestic assistance by washing his clothes.

36. The applicant provided a photocopy of the front page of a newspaper, [dated] April 2018, containing a photograph of the applicant with the headline ‘[deleted]’. He said that his friend told him about the article [in] April 2018. He submitted that the article was published because his house had been attacked, and he had faced years of attack. He told the Department that he did not speak to the journalist or provide a photograph.

37. He said that he had not kept abreast of developments in Sierra Leone since he had been in Australia.

    Evidence before the Tribunal

38. The applicant appeared before the Tribunal for an interview on 17 November 2021. A summary of his evidence is set out below.

39. The applicant confirmed that he was born in Koidu in eastern Sierra Leone, which is the centre of Kono district. He said that Koidu has a population of about 100 000 and the main industry is diamonds. The applicant said that his parents came from Makeni in the north. They moved to look for ‘greener pastures’ as the mining industry was booming. His parents worked in mining. His grandparents, who have now passed away, lived in Makeni. He only went there a few times to visit. His aunts and uncles lived in Koidu but have all now passed away, except for one aunt who is now elderly. She lived in Koidu but moved to Freetown because ‘of the incidents’.

40. He has a [brother] who lives in Freetown. He is unemployed and lives with his auntie. His aunt’s daughter who has a business supports them. He speaks to them regularly. He only has one other cousin.

41. The applicant said that his parents passed away when he was young from illness and he was brought up by his aunt. He attended school in Koidu. When the war broke out in 1992 they fled to Freetown. He attended primary and high school in Freetown, finishing in [year]. He started [tertiary education] in 2009. From 2004 to 2009 he was raising money to go to [tertiary education] from his cousin. He was staying at home. From 2009 to 2013 he studied [a course] at [an educational institution], in Freetown. When he finished [his studies] in 2013, he did ‘lots of research’ and applied for various jobs. However, there was limited availability of jobs in [the] subject he had majored in. He did not have connections and could not find jobs. He never worked at all while living in Sierra Leone. He said that he moved to Koidu with his aunt to look for a job. They moved back to the house that was owned by his parents. His brother stayed in the city. He said that he could not secure a paid job but did a voluntary job for a [company] and would get tips.

42. The applicant confirmed that the Temne ethnic group is one of the largest ethnic groups in Sierra Leone and the Mende are the largest tribe. He said that tribal affiliations do not affect daily life but do influence political party membership.

43. He was asked by the Tribunal why he got involved with the APC in 2010. He said that one of the reasons was the ideology. He said that another reason was that APC sticks to their promises. He said that the infrastructure in the country was built by the APC. The APC also tried to reduce unemployment. He was asked why he supported them if he could not find a job while they were the ruling party. He said that they were ‘trying to do their level best’. He also decided to join APC because his uncle was killed in 1992 ‘by the NPRC government’. He said that his uncle was one of 29 people ‘killed extra-judicially’. He said that one of the persons who gave the order to kill him was the current president who was a member of NPRC.

1. He said that before joining APC, he ‘discussed it with a few people officially’. His parents had supported APC so it was ‘part of my family’. He said that he went to the Koidu office and asked if he could join. He was asked questions and had to fill in a form. After a while he was given a membership card which he went to collect.

2. He was asked by the Tribunal what he did to support the APC. He said that he supported them in the election campaign in 2018. He was not involved prior to this because of studies during some of those years. He said that he did attend meetings at the offices during that time. At the meetings they would have an agenda covering such matters as what could be improved and what strategies should be put in place. He agreed that he was an ordinary member and had no position in the party. He was asked what some of the key policies were. He said that one was to focus on roads. The second was infrastructure. Thirdly, the focus was on education. Fourthly they wanted to get rid of corruption. The motto was ‘All People’s Congress’. The name of the leader was Mohammad Kurama. The president of APC who stood down at those elections was Dr Ernest Bai Koroma.

3. He said that he had friends who were involved in the campaign. He does not know where they are now, but some have fled.

4. The applicant said that he was involved in the Koidu Town election campaign. Koidu Town was dominated by SLPP until 2007 and then APC until 2012 and after that it was ‘mostly SLPP’. The vice president of APC was unconstitutionally removed as vice president. Asked who the local candidate was, he said that it was Muhammad Sesay, who did not get in.

5. He said that as campaigners they would go out and talk to people and tell them the aims and objectives of APC. They would tell people about the benefits for the country and to them as individuals. They would tell them about the ideology, that they would build infrastructure, reduce prices of education and create jobs. Sometimes they would assemble in the field and sometimes they would have meetings. They would have the location announced on the radio. Sometimes they had people walk around announcing on microphones and at times they would speak to the congregation in church. They had T-shirts and brochures printed. He said that his telephone was stolen, and he does not have any photographs, or copies of the brochures. He said that when they campaigned mostly people were supportive, but some were not. He said he was ‘persecuted’ during the campaign. He was attacked on three occasions. He was asked if all campaigners were attacked. He said ‘mostly they were attacked’. He said ‘people at the forefront’ were attacked. He said that he was ‘popular and well-known’ so there was a focus on him to step down. The Tribunal asked him how he was well-known and at the forefront when he had not been involved for 10 years and was an ordinary member. He said that he was well-known as he met many people and talked to them and was actively involved.

6. He told the Tribunal that he was returning from visiting a friend [in] February 2018 when he was attacked by three people, who were ‘skinny and not fit’. They called him by his name and told him that they would ‘deal with’ him. They rushed him and tried to grab his shirt. He fought back and they took his telephone and wallet but he was physically fit and managed to escape. He had a muscular neck injury. He went to the hospital to see a doctor the next day. He does not have a medical report. Asked why he did not go to the police, he said he did but even though the APC was in power, he had no money to pay them in order to investigate and there was no outcome. Asked if the attackers had a weapon, he said that one had a knife in a pouch. He asked how he avoided getting hurt, and he said that the knife was in a pouch. He could see the shape on his belt.

7. He said that he was attacked for the second time in February 2018 when he was coming home from his friend’s house. He was in the outskirts of the town and it was very late. There was no public transport and he was walking. There were two men and they told him to wait and that when their party came into power they would deal with him and kill him by beheading him. They said ‘you think you are smart. We will take care of you.’ He said that they tried to attack him and he fought back. Because he went to the gym at the time, he was physically able to fight them off. No one was hurt and he ran away. He did not go to the police again.

8. The third time he was attacked was again when he was coming home at night very late before the election on 7 March 2018. Two men called out to him, and they again threatened him, saying he was campaigning for APC and they said they would deal with him and kill him when they came into power. They tried to attack him and take his belongings, but they were not successful and he managed to escape.

9. He said that there was some conflict in the stations on election day. There were two rounds of voting. The first was on 7 March but none of the candidates won. So they had a second round. He was not there for the second round because he had already left for Australia.

10. The Tribunal asked the applicant why he applied for a visa for Australia. He said that it was because he was facing persecution and was attacked and if SLPP came into power then he would be in danger as they had threatened his life. A person who was like an uncle to him met him in March 2018 and he told this uncle what he was going through. This person was not a biological uncle. The applicant met him through a friend and helped him by laundering his clothes when [studying]. The uncle paid him ‘in tips’. The uncle was a member of the APC called [Mr A]. [Mr A] took his passport and arranged a visa. He already had a passport which had been issued in about 2017 in case there was an emergency or if he got a scholarship or an opportunity came his way.

11. The Tribunal asked the applicant if knows how [Mr A] obtained the visa on his behalf. He said that he does not know how but was told it was through a connection. He did not need to ask him many questions. He was asked if he was told to say anything to border officials. He said that he was told to say he was travelling [for a stated purpose].

12. The Tribunal asked him if this was a quick turnaround to be granted a visa. He was attacked, then bumped into his uncle, and in the same month he had the visa arranged and it was granted. He agreed and said he does not know how he did it as normally it is difficult to get a visa for Australia. He said that he was granted his visa on 25 March 2018 and then arrived in Australia [in] April 2018.

13. He told the Tribunal that his house was attacked after the election results were declared when the applicant was already in Australia. Many attackers destroyed the house, breaking the sofa, glass and other items with weapons, and attacked his aunt. They were looking for him. It took place on the day the election results were announced. His aunt did not call the police as it would have been a waste of time and the SLPP were in power. His aunt was not hurt. Asked if APC members came to help, he said that at the time they were all fighting for their own lives.

14. He said that [in] February 2018 his cousin was returning from a nightclub and was attacked and beaten because the attackers knew he was the applicant’s cousin and that his family members supported the APC. His cousin was not actively involved in APC but he ‘liked to argue in peer groups’. His cousin was taken to hospital but died in his arms in the hospital. He said that this really affected him. His mother was the aunt who looked after him as a child. He said that there were media reports about the incident but he did not have them or a death certificate.

15. It was put to the applicant that the country reports suggest that although there was some conflict during 2018, there was a low level of violence during the elections[9] and the election itself was peaceful and complied with international standards although there were several incidents of violence.[10] He said that reports are not always accurate as media cannot see everything that happened. He said that there were people who fled because of the elections.

    [9] The Guardian, ‘Police intervene as opening of Sierra Leone parliament is overtaken by chaos’, 27 April 2018

    [10] Carter Center, ‘Presidential and Parliamentary Elections in Sierra Leone’, 27 March 2018

16. He was asked why it would be different for him if he returned as opposed to all of the APC supporters who were involved in the election who have remained in Sierra Leone and got on with their lives. He said that he was very involved, and fears that one day he would be walking around and he would be attacked.

17. He was asked how many presidential candidates there were (16) and who the APC candidate was. He said that there were plenty, ‘more than 20’ and he correctly said that the APC candidate was Dr Samura Kamara.

18. He was asked by the Tribunal how he funded his flights to Australia and his visa. He said that his uncle paid for his flights and expenses because he had helped his uncle during [his studies].

19. He was asked where he located the news article provided to the Department referring to him, also found at [hyperlink]. He said that his friend back home told him about it. He said that the journalist probably got the information from his friends and APC members. When he asked his friends about it, he said that they ‘had no idea’ and did not know. He said that he did not speak to the journalist. He does not know where the photograph was taken or how they sourced it.

20. He was asked if he could relocate to Freetown or other places where he would not be recognised by persons involved in the Kono elections. He said that his country is small and his life would still be at risk and he would be in danger.

21. The applicant was asked whether he had explored the possibility of moving to one of the countries which are part of the European Community of West African States (ECOWAS), such as Nigeria, Ghana, Liberia and Guinea. He said that he had discussed this with the Department. He said that in Australia there is respect for human rights but he would be persecuted in the other countries as well as his own country. If an incident took place in those countries, like it did in Sierra Leone, then he would face marginalisation. He would face attacks as a foreigner, in Nigeria or South Africa and his property would be destroyed. He said that in Australia he is safe.

22. The applicant was asked if he keeps up to date with current political events in Sierra Leone. He said that he does not ‘that much’. He said that he has a family in Australia. He is married to an Australian citizen who has four children. He is working two jobs to support them all. He also has his own baby. He said that he is trying to look after them all.

23. The applicant was invited to adduce any additional evidence or make submissions to the Tribunal. He said that he has been fortunate to be in Australia for three years and has worked very hard, has no criminal record, pays taxes, is law abiding, and Australia is a country of human rights. He said that his partner is an Australian citizen and he has a baby who is three months old. He looks after her four children. They look to him as their father. He said that he and his partner are planning to get married. They have lodged a partner visa application as they are living in a de facto relationship. They have been together for two years and have lived together for five months.

    DECISION OF THE DEPARTMENT

24. The Department was not satisfied that the applicant joined the APC in 2010 due to the extra-judicial killing of his uncle 18 years earlier, noting that he was not involved between 2010 and 2018. The Department was not satisfied that the applicant attracted adverse interest from SLPP and was not satisfied that the news article provided was authentic. The Department was not satisfied therefore that the applicant met the criteria for a protection visa.

    FINDINGS AND REASONS OF THIS TRIBUNAL

    Key issues for determination

25. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:

    ·Whether the applicant was involved with APC in Sierra Leone and was harmed as a result (findings of fact).

    ·Whether there is a real chance of serious harm or a real risk of significant harm for reasons of his political opinion and/or ethnicity if he returned to Sierra Leone.

26. These issues and other threshold issues are discussed below.

    President’s Direction

27. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[11]

    [11] Issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth)

28. The Tribunal exercised its discretion to hold the hearing via video due to restrictions necessary because of the COVID-19 pandemic, in accordance with these directions. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant such that in the interests of justice, the matter should be heard expeditiously. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.[12] There may have been significant delay to the matter if the hearing was not to be conducted by video.

    [12] Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth)

29. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see, and the Tribunal was able to interact with the applicant and maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.

    Nationality

30. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being outside the country ‘of nationality’. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

31. The applicant has a passport from Sierra Leone issued in 2017 and valid until [2022]. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of Sierra Leone and that Sierra Leone is the receiving country for the purposes of the legislation.

    Findings of fact

    Taking a reasonable approach to fact-finding

32. The Tribunal must make findings as to whether the applicant was a member of APC and was involved in the campaign in 2018 and suffered harm as a consequence. Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[13] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

    [13] Fox v Percy (2003) 214 CLR 118

33. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[14] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

    The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to: … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [14] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

34. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[15] A similar approach is taken in the Department’s Refugee Law Guidelines[16] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[17] which provides useful guidance for this Tribunal.

    [15] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [16] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [17] UNHCR, re-issued February 2019 at [203]–[204].

35. In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[18] The Tribunal is also conscious that there may be factors that consciously or otherwise influence decisions[19] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[20]

    [18] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511,  H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.

    [20] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants. Refugee applicants may face many difficulties in the presentation of their evidence including use of interpreters, nervousness and anxiety in presenting evidence to government authorities, cultural issues, and stress caused by separation from home and family. A person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[21] In this case, the applicant arrived in Australia in 2018 such that he may have forgotten small details about what took place some years ago. As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[22] such factors are taken into consideration in evaluating the applicant’s evidence as a whole.

[21] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, on credibility

1. The Tribunal accepts that the applicant had a difficult childhood. Both his parents died when he was very young from illness. After their death he lived with his aunt, and they had to flee their hometown, Koidu, due to attacks by the rebels. He has said that although he had tertiary education, he could not find a job.

2. The Tribunal also accepts that the applicant is currently in a relationship with an Australian citizen and that they have a child together. The Tribunal notes also that the applicant is a father figure to his partner’s other children and appears to take his family commitments seriously and to want to live his life responsibly for them.

3. The Department did not accept that the applicant was involved in APC given his limited involvement in 2018 and other concerns with his evidence. Taking the reasonable approach to fact-finding referred to above the Tribunal is satisfied that the applicant’s family supported APC and that the applicant helped in the 2018 campaign. It is somewhat surprising that the applicant has not kept in touch with events in Sierra Leone which would be expected of a person who was very involved in the APC as claimed, however the Tribunal accepts his claim that his focus has been on his new family in Australia. The applicant was able to discuss why he got involved in APC – due to family devotion to the party, suspicion that his uncle had been killed in 1992 by the SLPP president among others, and the ideology and actions of APC. He referred to specific actions such as the infrastructure in the country being built by the APC and attempts to reduce unemployment and improve education. He knew the name of the leader and past leader and was able to discuss where the campaign took place. He was able to discuss the outcome of the election accurately. (In March 2018 the opposition Sierra Leone People’s Party candidate, Julius Maada Bio, won the presidential election. In January 2018 parliamentary elections, the All People’s Congress won a plurality of the seats. After the December 12 election re-run and by-elections, the Sierra Leone People’s Party and the All People’s Congress each held 58 seats. On 4 April 2018 the SLPP candidate Julius Maada Bio won the presidency.[23] While Julius Maada Bio won the presidency following the second round of voting, the APC ‘took the majority of seats in the parliament’[24]). The applicant was also able to discuss what activities he took part in during the election and where they campaigned. Considering this evidence cumulatively, the Tribunal is satisfied that the applicant was an APC member and campaigned in 2018.

   [23] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

   [24] Bertelsmann Stiftung, 'BTI 2020 Country Report Sierra Leone', 29 April 2020, p.3

4. The Tribunal is not satisfied however that the applicant was harmed in the manner claimed as a result of his involvement in the 2018 campaign and his membership of APC. It is well established that the Tribunal is not required to accept uncritically claims made by an applicant.[25] Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 32 ALD 347 at 348. Findings on credit are open to a Tribunal, provided that they are not tainted by unreasonableness and/or subject to any failure to afford procedural fairness: ARG15 v Minister for Immigration and Border Protection[2016] FCAFC 174 at [83].

   [25] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437 at [451]; 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

5. In Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, Kirby J observed:

   it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

6. The Tribunal does not accept that the applicant was targeted in the ways he has described given his minor level of involvement in APC, the low levels of violence in the election period, the lack of corroborative evidence as to how he was targeted and lack of detail about these attacks, lack of police interest and the circumstances of arranging his visa. This is explained in more detail below.

7. The Tribunal does not accept that the applicant was a well-known or senior figure in the APC. Although he joined in 2010, he has admitted that he did nothing except attend a few meetings for eight years until his work in the election campaign in 2018. He has also acknowledged that he was an ordinary member and had no position in the party. His only involvement was in the 2018 election campaign.

8. As discussed with the applicant at the Tribunal hearing, the sources indicate that there was some election violence in 2018, particularly after results were announced, but this was not on a large scale and nor does there appear to have been significant specific targeting as opposed to general conflict against opponents. The Carter Centre in a comprehensive report on the elections stated that there were several serious incidents of violence, but ‘for the most part the campaign was conducted in a peaceful manner’.[26] A 2018 article in The Economist refers to ‘[t]ensions based on ethnic, political and regional divisions’ simmering throughout the 2018 election campaign. When the result was announced, ‘[s]upporters of Mr Bio’s Sierra Leone People’s Party (SLPP) attacked followers of the APC, which previously held the presidency. Much of the violence’ had ‘taken place in the SLPP’s southern strongholds. But more than 100 people’ had ‘also fled Kono, a volatile swing state in the east’.[27] Most sources suggest that the 2018 elections were free and fair[28] and although there was some conflict there was a low level of violence during the elections.[29] Some reports suggest that violence was mainly by gangs[30] often targeted at high-profile political members of APC.[31] One report from 2018 referred to the low level of violence with supporters living side by side in peace during the elections, and for the second time since the civil war in 2002, achieving a peaceful transition between parties.[32]

   [26] Carter Center, ‘Presidential and Parliamentary Elections in Sierra Leone’, 27 March 2018

   [27]The Economist, ‘A little hope in Sierra Leone - Sierra Leone’s new president has made big promises’, 14 April 2018

   [28] For example, see United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

   [29] Carter Center, ‘Presidential and Parliamentary Elections in Sierra Leone’, 27 March 2018; Bertelsmann Stiftung, 'BTI 2020 Country Report Sierra Leone', 29 April 2020, p.3; The Guardian, ‘Police intervene as opening of Sierra Leone parliament is overtaken by chaos’, 27 April 2018

   [30] APA News, ‘Sierra Leone Criminal gangs blamed for political violence’, 29 January 2018

   [31] The Sierra Leone Telegraph, ‘Opposition APC attacks Presidents Bio’s first one hundred days in office’, 26 July 2018

   [32] The Conversation, ‘Coverage of Sierra Leone’s election reflected stereotypes, not reality’, 22 April 2018

9. Although it is a fair comment, as suggested by the applicant, that reports are not always accurate as media cannot be aware of everything that happens, the Tribunal is not satisfied, based on this evidence, that the applicant was subject to three different incidents of targeted violent attack, that his cousin was killed because of his participation in the election campaign or that his house was attacked after he left. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:

   where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[33]

   While the sources indicate some sporadic violence in the campaign in Kono,[34] it appears unlikely that the applicant, who was a low-level APC supporter would be specifically targeted on three occasions by himself, and that a murder of a family member would take place because of his involvement or that his house would be attacked. Given that the sources indicate a generally low level of violence with little individual targeting, the Tribunal is not satisfied that the applicant was targeted in this extreme manner on three occasions or significantly that his cousin would be killed because of his involvement, when the applicant had only been involved for such a short time, was not a leader and had no position in the party.

   [33] [1997] FCA 1198 at [11].

   [34] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

10. Further, although stating that he went to hospital and to the police station after the first attack, the applicant did not provide medical or police reports or witness statements to corroborate his account of the incidents. In particular he did not provide medical or police reports, witness statements or a death certificate in relation to the alleged death of his cousin, which would have been expected to be in existence if this event did take place.

11. The Tribunal also finds it difficult to accept that the police would not have investigated at some level the cousin’s death or some of the violence committed on the applicant, given APC were in power at the time. The Tribunal accepts, on the basis of country reports referring to extensive corruption in Sierra Leone,[35] that as claimed by the applicant the police would often not investigate some crimes unless bribed. However murder is a serious crime and it is unlikely that there would not have been at least some preliminary report or investigation. Furthermore, the government at the time also made a commitment to making those who were responsible for electoral violence accountable. Africa News reported on a meeting in April 2018 between the leaders of the parties designed to establish a cross-party committee to investigate claims of violence and intimidation in the elections.[36] In 2009, the parties signed an agreement to prevent violence between the parties.[37] If his cousin was murdered, it is likely that this would have attracted significant attention and led to some form of investigation. In addition, there was a lack of detail provided in regard to his narratives about all the instances of harm with descriptions being general, for example, ‘I managed to escape’, rather than describing how he escaped, how he felt, and where he went afterwards. While these factors are not definitive, when they are considered cumulatively with the other evidence the Tribunal reaches the conclusions that the evidence is not credible.

    [35] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

    [36] Africa News, ‘Sierra Leone president sets up cross party committee to address post election violence’, 9 April 2018

    [37] Bertelsmann Stiftung, 'BTI 2020 Country Report Sierra Leone', 29 April 2020

12. Finally, the applicant’s account of bumping into a person who was like an uncle to him, who arranged a visa in the same month that he had been attacked, also did not appear feasible as he said that it was difficult to get visas and he does not know how his uncle arranged it.

13. When considering these matters cumulatively rather than individually, the Tribunal is not satisfied that the applicant was targeted and attacked on three occasions, that his house was attacked or that his cousin was killed due to the applicant’s participation in APC.

14. The Tribunal now turns to the credibility of the news article provided by the applicant to the Department to support his claims, allegedly from [a named] newspaper, including the front page which contains the headline ‘[deleted]’, and a labelled photograph of the applicant, and a page 2 article in relation to the applicant, which also contains another photograph of the applicant. A portion of this article also appears on [a] website. The delegate was not satisfied that this article had been genuinely produced as news by a journalist. The Tribunal is also not satisfied as to the authenticity of the article. The Tribunal is not satisfied that the applicant was harmed for his political beliefs in Sierra Leone,[38] for reasons set out earlier, so in light of this, gives little weight to an article which states that he did suffer harm particularly given information about availability of fraudulent documents, discussed further below. The applicant has claimed that he did not know where the photograph was taken for the article or how the journalist sourced the information which is somewhat surprising given the detail in the report. As discussed with the applicant at the Tribunal hearing, and commented on by the delegate of the Department in the Department’s decision, the article submitted by the applicant contains considerable details which mirror his protection claims, and which are not all genuinely newsworthy material. The applicant was asked how the journalists would have got all the information for the article on the same day as the attack on his house took place, [date] April 2018, and collated the information for publication so quickly. He said he does not know how they sourced the information.

    [38] See comments of McHugh and Gummow JJ in Re MIMA; ex parte Applicant S20/2002 [2003] HCA 30 as to assessment of corroborative documents

15. The lack of information about how the article was produced and the date of the article adds to conclusions reached as to lack of authenticity of the article. Furthermore, as discussed at the Tribunal hearing, sources suggest that asylum seekers from West Africa have on occasion submitted fake news stories as evidence in support of asylum claims[39] and Australian migrants often pay large sums, often thousands of Euros to people who are sophisticated criminal smugglers or migration brokers.[40] Fraud is widespread across the region with fraudulent documents in use for visa applications.[41] On 22 September 2012,  [a] newspaper based in Freetown, reported that the Sierra Leone embassy in Senegal had seized over 15 Sierra Leonean fake documents, including passports, birth certificates, identity cards and resident permits. According to the Sierra Leone embassy staff, the documents seized were either ‘forged, tampered with, expired, fraudulently obtained or in the hands of the wrong persons’ ([named newspaper] 22 Sept. 2012). The newspaper article further indicates that, according to the embassy staff, fraudulent Sierra Leone passports are ‘in the hands of most Nigerians and Guineans living and doing business in neighboring Cape Verde’.[42] The report suggests that Sierra Leonean officials have been selling fraudulent service and diplomatic passports for thousands of dollars to individuals hoping to use them to enter the United States according to the country’s anti-corruption commissioner. Sources indicate that Africa has a thriving black market for illegal passports, prompting the United States, Britain and others to tighten visa regulations for countries where the issue is most acute.[43] The USDOS report on human rights practices in Sierra Leone for 2020 indicates that in March 2020, ‘the High Court convicted Alfred Kallon, former Human Resource Officer at the Office of Administrator and Registrar General, on 34 counts of corruption offenses. Kallon was accused of using his office improperly to facilitate the issuance of official service passports for unauthorized individuals’.[44] A May 2020 performance audit report on the management of passports and other travelling documents by the Sierra Leone Immigration Department (SLID) between 2015 and 2018 found there were ‘anomalies in the way and manner passports and other travelling documents are being managed by SLID. These anomalies which include the non-compliance with passport (including other travelling documents) laws and policies have ultimately resulted in Sierra Leonean passports (ordinary, service, and diplomatic) being issued to ineligible persons’.[45]

    [39] Immigration and Refugee Board Canada, ‘Corruption of journalists: the falsification of newspaper articles for the purpose of refugee claims’, 13 April 2012

    [40] Australian Strategic Policy Institute, ‘Strategy: People Smugglers globally 2017’, 1 October 2017

    [41] DFAT Thematic Report- Economic Community of West Africa (ECOWAS), 3 December 2020

    [42] Research Directorate, Immigration and Refugee Board of Canada, ‘Sierra Leone: Birth certificates and national identity cards, including requirements and procedures, appearance and security features; document issued to replace a missing birth certificate; circumstances in which a Certified True Copy BC/99 is issued; prevalence of fraudulent copies of these documents; whether the government has ever suspended the issuance of birth certificates or other identity documents (2010-October 2015)’, [SLE105315.E]

    [43] C Inveen, Reuters, ‘Cartel of Sierra Leone officials ran passport scam for US visas: anti-graft chief’, 15 September 2018

    [44] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021, p.14

    [45] Audit Service Sierra Leone, ‘Performance Audit Report on the Management of Passports and Other Travelling Documents - Sierra Leone Immigration Department’, May 2020, pp.ix & 33-34

16. While these reports refer predominantly to passports, there is also reference to fraudulent travelling documents generally and to news reports. The applicant submitted that he was ‘not part of such a system’, and the article is not fake, however the Tribunal is not satisfied as to the authenticity of the document given the Tribunal’s lack of satisfaction as to the harm he alleges he suffered in Sierra Leone, the lack of information about production of the document and its timing, and evidence of widespread fraud in document production in Sierra Leone.

    Does the applicant have a well-founded fear of persecution for reasons of his political opinion?

17. 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 themself of the protection of that country.

18. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

100.   The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

·The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

·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 above; and

·the real chance of persecution relates to all areas of a receiving country.

Does the applicant fear being persecuted for one of the stated reasons?

101.   Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

102.   The Tribunal is not satisfied that the applicant fears being persecuted for reasons of his political opinion or ethnicity, although it is totally understandable that he does not want to leave Australia and his family members in Australia to return to a country where the standard of living is much lower. The Tribunal is not satisfied that the applicant was harmed while living in Sierra Leone for reasons of his political opinion or ethnicity, for reasons discussed earlier. Country sources establish that there is a low risk of harm for APC supporters or on the basis of ethnicity, as discussed below.

103.   The Tribunal is not satisfied therefore that the applicant fears being persecuted for one of the stated reasons.

Is there a real chance of serious harm for reasons of the applicant’s political opinion – support of APC?

104.   For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

105.   The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.

106.   In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.

107.   The Tribunal is not satisfied that the applicant faces a real chance of serious harm were he to return to Sierra Leone in the reasonably foreseeable future for the following reasons.

108.   Firstly, the applicant’s participation in APC was for a short time in the election campaign of 2018 and given that over three years have passed, and conflict was electoral based, it is unlikely that he would be of any interest to SLPP supporters now or to government authorities, on the basis of his past actions. When discussed with the applicant, he said that they would want to harm him as he was well-known and had been very vocal and had been threatened in the past, and opponents have a grudge against him. The Tribunal does not accept that the applicant was a high-profile APC figure who would still be of interest to SLPP supporters, particularly in the context of sources discussed later which suggest that while there is some political conflict, there is little targeting of ordinary members of political parties.

109.   Secondly, there were many APC supporters who were involved in the election, including his friends, who have remained in Sierra Leone and got on with their lives without suffering serious harm. The applicant has said that he would be harmed as he was very involved, and fears that one day he would be walking around and he would be attacked. He said that he does not know where his friends are and some have fled. The Tribunal accepts that some people may have fled Sierra Leone but given the vast support APC has, the Tribunal is not satisfied that APC members who were involved in the election campaign of 2018 are generally targeted for violence, or that he would be given any special attention based on his involvement in the election, particularly in light of sources set out below.

110.   Thirdly, if the applicant were to return and continue to support APC, although there is some political conflict, the sources do not indicate that there is a real chance of harm for an ordinary supporter of the APC, even if he were to participate in an election campaign again. While there is some political conflict, the sources do not indicate that there is a real chance, that is a substantial or non-remote chance,[46] of serious harm for an ordinary APC supporter such as the applicant, even if he was involved in meetings or election campaigns previously. The sources are summarised below.

[46] Chan v MIEA (1989) 169 CLR 379

111.   Bertelsmann Stiftung reported in 2020 that the transition of power in 2018 was overall smooth and formally strengthened democratic procedures.[47] There have also been attempts since the 2018 election to hold conciliatory meetings between the parties designed to create unity and minimise conflict. On 8 April 2018, Africa News reported on a meeting designed to establish a cross-party committee to investigate claims of violence and intimidation in the elections. APC presidential candidate Samura Kamara, his running mate and the secretary-general of the party attended a meeting with the president at his home in Freetown.[48] A presidential statement released after the meeting indicated that the committee would comprise membership of both APC and SLPP leadership and would work in conjunction with the Sierra Leone police, to investigate all complaints of violence and intimidation, and to ensure that the law would be applied with full force against anyone found culpable. Both leaders had reportedly also attended the same church service with their wives, as part of an attempt to strengthen reconciliation between the two parties.[49] A Peace and National Cohesion Conference was convened in May 2019 to help foster national unity, and Parliament in December 2020 passed into law the Independent Commission for Peace and National Cohesion. The government recently repealed the draconian Part 5 of the Public Order Act of 1965 that criminalised libel, while the President has also signed into law the abolition of the death penalty.[50] The applicant, when asked about these reports at the Tribunal hearing, said that ‘this is just written for the public’, but there are many incidents which take place in other parts of Sierra Leone in which people are attacked for political views and opinions. He said that the government tries to show the western world that there is unity but people are being attacked. The Tribunal accepts that the media and human rights reports may not cover all incidents of violence, however reputable human rights reports when considered cumulatively along with media reports do provide a generally accurate broad overview of the situation.

[47] Bertelsmann Stiftung, 'BTI 2020 Country Report Sierra Leone', 29 April 2020, p.3

[48] Africa News, ‘Sierra Leone president sets up cross party committee to address post election violence’, 9 April 2018

[49] Africa News, ‘Sierra Leone president sets up cross party committee to address post election violence’, 9 April 2018

[50] World Bank, ‘The World Bank in Sierra Leone’,  Major human rights reports continue to confirm that Sierra Leone has democratic institutions in place and respects freedom of political expression. The United States Department of State Report on Human Rights Practices for 2021 states that Sierra Leone is a constitutional republic with a directly elected president and a unicameral legislature.[51] The Report states that the constitution and law provide citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage. According to the report, the constitution and law provide for freedom of speech and press, and the government generally respected these rights, although there were exceptions. The HRCSL and Amnesty International reported no arrests or detentions in relation to freedom of expression.[52] According to Freedom House, Sierra Leone has held regular multi-party elections since the end of civil war in 2002. Opposition parties have faced police violence. However electoral laws and frameworks are generally deemed to be fair, and citizens generally enjoy freedom in political choices.[53]

[51] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

[52] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

[53] Freedom House, ‘Freedom in the World – Sierra Leone’, 2021,  Within the framework of democratic elections and free political expression, there are underlying hostilities between the parties which fairly frequently erupt into political violence at election time. Amnesty International notes that political tensions between the parties persist.[54] However political violence is generally regarded as fairly low level and does not appear to operate significantly outside election periods or generally target individuals other than leaders, although one report suggested a rise in levels of violence towards civilians.[55] The BTI report states that ‘[o]rganized violence remained at a fairly low level during the review period [from 1 February 2017 to 31 January 2019], but the potential for mass violence remains high’.[56] A July 2020 US Overseas Security Advisory Council Crime and Safety report on Sierra Leone states that ‘[p]olitical violence is sporadic and normally increases during election periods’. The report also states that ‘[p]olitical demonstrations and rallies are generally peaceful, but sporadic clashes do occur, often instigated by individuals within the crowds. Participants at political rallies are easily incited and may use weapons of opportunity, including sticks and rocks. Strong rivalries exist in Sierra Leone; participants at large demonstrations can become aggressive toward one another and the police. The police deploy crowd-control techniques, including the firing of warning shots and use of tear gas’.[57] The USDOS report on human rights practices in Sierra Leone for 2020 indicates that the non-governmental organisation (NGO), the Center for Accountability and Rule of Law, reported there were clashes in Freetown between supporters of the APC and SLPP in January 2020. In an incident on 27 January 2020, ‘27 persons were reportedly wounded. Police arrested 19 persons after the clash; all were later released on bail’.[58] An article in The Sierra Leone Telegraph dated 14 January 2020 refers to ‘at least one person – an APC supporter’ being seriously injured ​in violence that occurred ‘outside the opposition All People’s Congress (APC) party office’. It was ‘not clear what started the violence, but from various video clips published on social media, large crowds of APC supporters could be seen shouting about being attacked by supporters of the ruling SLPP party, who they said were throwing stones at the APC supporters’. APC supporters claimed ‘the minister of internal affairs – Lahai Lawrence Leema, who is responsible for the country’s police force, was seen driving past the APC party office at the time of the attack on their supporters’. There were ‘some eyewitness reports’ that the attack on the APC supporters started when a funeral cortege of a senior SLPP supporter drove past the APC party office. There had been similar violence a few months previously ‘at the APC party office when police stormed the office in an attempt to arrest supporters who they said were throwing stones at the police and SLPP supporters’.[59] There are few reports of official harassment of APC supporters although there were over 100 arrests associated with protests in regard to a decision by the High Court to cancel the election of 10 opposition MPs for alleged breaches of electoral laws.[60]

[54] Amnesty International, ‘Amnesty International Report 20/21: The State of the World’s Human Rights’, 6 April 2021

[55] De Bruijne, K, ‘When Emerging Democracies Breed Violence: Sierra Leone 20 Years After the Civil War’, Armed Conflict Location ＆ Event Data Project (ACLED), December 2020

[56] Bertelsmann Stiftung, 'BTI 2020 Country Report Sierra Leone', 29 April 2020, p.3

[57] Overseas Security Advisory Council (OSAC), 'Sierra Leone 2020 Crime & Safety Report', 4 July 2020

[58] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

[59] 'Another senseless bloody violence erupts at APC party office in Freetown', The Sierra Leone Telegraph, 14 January 2020, 20200130101219

[60] Niba, W; rfi, ‘Focus on Africa: Sierra Leone court annuls election of opposition MP’s’, 5 June 209

114.   The violence reported in these incidents appears to be largely generalised group violence between party members rather than violence targeted at individual APC supporters by the authorities or ruling party. Violence in the country generally has dropped from 2018 to 2021,[61] although there were higher levels of violence in 2018 than in previous years.[62]

[61] Knoema, ‘Violence in Sierra Leone’, World Data Atlas, De Bruijne, K, ‘When Emerging Democracies Breed Violence: Sierra Leone 20 Years After the Civil War’, Armed Conflict Location ＆ Event Data Project (ACLED), December 2020

115.   Fourthly, while there is some targeting of political leaders, the country sources do not suggest that ordinary APC members are often targeted for violence outside political gatherings. Amnesty International report that ‘[t]he political tensions between the ruling Sierra Leone People’s Party and the All People’s Congress (APC), the main opposition party, persisted’, but do not refer to targeting of ordinary APC members by the government.[63] A July 2021 Radio France Internationale (RFI) article mentions Major Palo Conteh, a former defence and internal affairs minister who had been charged with treason, a crime that normally carries a death penalty sentence on conviction. Conteh ‘had been discovered with a pistol on his way to meet President Julius Maada Bio at State House’. He was ‘[c]onvicted for the possession of a weapon that was not properly registered’ and ‘served a two-year sentence while his appeal was being heard. President Bio finally granted him clemency and freed him’.[64] An October 2020 Africa Confidential article states that a travel ban had been imposed on former President Ernest Bai Koroma and 111 others who served in his administration, who were named in a ‘government White Paper that followed hearings and reports by three judicial inquiries into corruption during his two terms of office’. Formal corruption investigations had opened against the former president, who was ‘also chair of the APC’. Koroma’s APC had ‘denounced the investigation as politically motivated and unjust’.[65] In July 2021, the Concord Times reported that the former president’s lawyer had told the Appeals Court that Koroma ‘may seek interpretation in the Supreme Court on the grounds of immunity on ex-president’.[66] The USDOS report on human rights practices in Sierra Leone for 2020 also indicates that in May 2020, ‘police arrested Sylvia Blyden, former minister of social welfare, gender and children’s affairs and a journalist and opposition All People’s Congress (APC) party member, for alleged libel offenses involving social media posts critical of the government’. The ‘[p]olice detained her beyond the 72 hours legal limit provided by law. On May 29, authorities released Blyden on bail but then re-arrested her June 2 for allegedly violating bail conditions. On June 25, police released Blyden again on bail. The charges were dropped after the law criminalizing seditious libel was amended in August’.[67]

[63] Amnesty International, 'Amnesty International Report 2020/21: The State of the World's Human Rights', 6 April 2021, p.316

[64] Radio France Internationale (RFI)‘Sierra Leone’s parliament abolishes death penalty, but sceptics fear a crime wave’, 26 July 2021

[65] Africa Confidential, ‘Koroma probe risks backlash’, 14 October 2020

[66] Pratt, R, Concord Times, ‘Ex-President Koroma heads for Supreme Court’, 13 July 2021

[67] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021, Section 1(d), p.7; See also: Committee to Protect Journalists, ‘Sierra Leone journalist Sylvia Olayinka Blyden detained, charged over social media posts’, 18 June 2020

116.   When put to the applicant that these reports suggest that the violence is sporadic, electoral based and general and does not target ordinary members although some leaders have been targeted, he said that he feels that his life will be in danger. He said that there are pockets of incidents in some districts that are not reported.

117.   As referred to earlier, the Tribunal is satisfied that not all incidents are reported and accepts that there may be isolated incidents of violence. The Tribunal accepts that the 2018 elections were highly contested, with the SLPP winning by only 0.6% of the second vote[68], and that there was some political violence which may again erupt in elections in 2023. However reputable human rights reports such as the United States Department of State Report on Human Rights Practices do not indicate that political opponents are repressed or that APC members are systematically targeted. Furthermore, the level of violence does not appear that extensive that the chance of harm would be real in the sense of substantial, with one article calling it ‘low-level’, often arising from contentious local issues and is ‘relatively contained’.[69] The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated: ‘well-founded’ must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation’.[70]

[68] World Bank, ‘The World Bank in Sierra Leone’, 27 October 2021, K De Bruijne, ‘Sierra Leone: The new government’s tense struggle for control a year on’, African Arguments, 18 April 2019

[70] Chan v MIEA (1989) 169 CLR 379

118.   The Tribunal is not satisfied based on the applicant’s profile and the sources set out above that there is a real chance of serious harm if the applicant were to return to Sierra Leone in the reasonably foreseeable future. The Tribunal is satisfied that the chance of harm would be remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379) given the factors referred to above.

Does the applicant have a well-founded fear of persecution for reasons of his ethnicity?

119.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his ethnicity. While the Tribunal is satisfied that he may be identified as Temne on the basis of his name, Temne are one of the largest ethnic groups out of 18 groups in Sierra Leone, with about 30 to 35% of the population.[71] The applicant has not provided details of targeting of Temne on the basis of ethnicity other than to suggest that he was threatened and attacked while living in Sierra Leone because of his tribe and politics. Reports do not indicate that Temne are specifically targeted for harm for reasons of their ethnicity.[72] Furthermore, sources suggest that although there are strong ethnic loyalties in Sierra Leone, there has never been an issue of tribal violence, with conflict between the Temne and Mende driven by land competition.[73] The applicant himself stated that tribal affiliation does not impact on daily life. Sources confirm this, indicating that inter-marriage is common, ‘there is no such thing as tribalism in Sierra Leone’ and tribalism is really about regionalism.[74] Other sources confirm that outside elections, in normal times, tribes live together amicably.[75]

[71] Minority Rights Group International, n.d., 'World Directory of Minorities and Indigenous Peoples - Sierra Leone',

[72] United States Department of State, ‘Country Report on Human Rights Practices Sierra Leone’, 30 March 2021

[73] The Guardian, ‘Violence fears as tense election reaches runoff’, 21 March 2018; Armed conflict location and event data project, April 2018; ‘The Sierra Leone Election Triggers Political Violence, April 2018,

[74] The Conversation, 'Coverage of Sierra Leone’s election reflected stereotypes, not reality', 22 April 2018

[75] J L Kormoh, 'Ethnicity and Conflict Instigation in Sierra Leone', Accord, 9 November 2020

120.   The applicant when asked if he feared persecution on the basis of his ethnicity stated that Mende are the largest group and dominate the SLPP whereas the Temne dominate APC. This comment is reflected in country sources. The APC is ‘deeply rooted in the northern regions and in the Temne and Limba ethnic groups’, while ‘the SLPP remains more or less a Mende party based in the south eastern parts of the country’.[76] The applicant said that even if a Temne individual does not support APC they are identified by their ethnic group as a member of APC and can be attacked.

[76] Bertelsmann Stiftung, 'BTI 2020 Country Report Sierra Leone', 29 April 2020

121.   The Tribunal is not satisfied that the applicant would be targeted for reasons of his Temne ethnicity on the basis of imputed political opinion to APC, as for reasons discussed earlier, the Tribunal is not satisfied that there is a real chance of serious harm from the ruling party or authorities as an APC supporter.

Findings on refugee criterion

122.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were he to return to Sierra Leone in the reasonably foreseeable future.

Does the applicant meet the complementary protection criterion?

General principles – complementary protection

123.   If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are 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 (‘the complementary protection criterion’).

124.   ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.

125.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has accepted that the applicant was a Temne and an APC supporter. The Tribunal has not accepted that there is a real chance of serious harm if he was removed from Australia to Sierra Leone, for reasons set out earlier. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.

Findings on complementary protection criterion

126.   The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone there is a real risk of significant harm.

CONCLUDING PARAGRAPHS

127.   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).

1. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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 any of the criteria in s 36(2).

   DECISION

130.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Jane Marquard
Member

ATTACHMENT A – 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.

…

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1816588 (Refugee) [2022] AATA 679

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AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

ABT16 v Minister for Home Affairs [2019] FCA 836

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