1817965 (Refugee)

[2022] AATA 3843

1817965 (Refugee) [2022] AATA 3843 (5 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddique

CASE NUMBER:  1817965

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Meena Sripathy

DATE:5 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2022 at 4:31pm

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion and ethnicity – member of former governing party and employee of government ministry – All Peoples Congress (APC) – campaign and promotional activities – threats by rival party supporters – change of government while applicant in Australia – general threats and attacks and applicant’s wife molested and now in hiding – credibility – limited public profile and activity in home country and no activity in Australia – no harm to wife and children after relocating – country information – politics based on ethno-regional divisions – harassment, intimidation and occasional violence but elections largely free and fair – risk faced by population generally – decision under review affirmed

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

CASES
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Sierra Leone, applied for the visa on 1 May 2018. The delegate refused to grant the visa on the basis of not being satisfied the applicant faced a well founded fear of persecution on account of his political opinion, race or ethnicity and therefore he did not meet the definition of refugee under s 5H(1) of the Act, and was also not satisfied that he faced a real risk of significant harm upon return to Sierra Leone.  

3. The applicant appeared before the Tribunal on 23 February 2022 to give evidence and present arguments by video conference using the MS Teams platform. The Tribunal exercised its discretion to hold the hearing in this mode given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely.  The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages who also appeared by MS Teams.

4. On 1 September 2022 the applicant appeared before the Tribunal for a further hearing, in person. The hearing was conducted with the assistance of an interpreter in the Krio and English languages.  The applicant was represented in relation to the review. The representative attended both hearings.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

5. The issues in this case are whether there is a real chance, if the applicant returns to Sierra Leone that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sierra Leone, there is a real risk that he will suffer significant harm.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Criteria for a protection visa

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

10. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

11. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    Evidence before the Department

13. Information in the application forms indicate the applicant was, at time of application, a [age] year old married man, born in [Town 1], located in Port Loko District, Sierra Leone, and a national of that country by birth. He states he belongs to the Temne ethnic group, is Christian and is [an Occupation 1] by occupation.  He declared his relationship status as married since [Year 1] and provided details of his wife and four children born between [Year 2] and [Year 3].  He travelled to Australia legally on a valid visa and his own passport, which was issued in [2013] and valid to [2018]. He departed his country on [Day 1] March 2018 and arrived here on [Day 2] March 2018. He indicated previous travel to [Country 1] for [Event 1], [Country 2] for [Event 2], [Country 3] for [Event 3], [Country 4] for [Event 4] and Australia for [Event 5] in 2018.  He provided two residential addresses in Sierra Leone, in [Town 1] and Freetown. He declared past employment as [an Occupation 2] for [Employer 1] and with [Organisation 1]. He indicates several post secondary certificate qualifications relating to the fields of [Discipline 1] and [Occupation 1] obtained in Sierra Leone.

14. In a statement of claims attached with his application the applicant stated that he left his country as an official to represent Sierra Leone at [Event 5] in Australia.  He came as a [role], appointed by the [administration] of the previous All Peoples Congress (APC) government.  Prior to this he was an active member of the APC Party, appointed as a youth leader.  He promoted and organised [activities] when needed and was given the opportunity to lead [groups] to international [events].  He is also [an Occupation 2].  He would campaign and promote the APC’s political activities to the nation [in the course of his work]. During the recent 2018 elections, on 7 March 2018 election day he acted as a party agent representing the APC Party in the polling stations.  Threatening remarks were made against him at that time.  By the time the elections were run he was already in Australia for [Event 5].  When the result was called and SLPP was declared as winners, they ordered their supporters to torture, humiliate and beat up APC supporters and burned down their properties. Before he left he asked his wife to take the family to a safe place, but before she could SLPP supporters surrounded the community including their residence looking for him.  His wife was arrested and detained.  Fortunately a neighbour friend who was among the SLPP supporters escaped with her and she is still hiding with the children. Adding to the risk of harm he faces is that his tribal community, the Mende, traditionally support the SLPP and he is considered to be against the community for supporting the APC.  This is another reason he is a target.

15. The applicant was interviewed by the delegate on 16 May 2018.  An audio recording of this interview was provided to the Tribunal in the Department file and the Tribunal has listened to this interview.  During the interview the applicant was asked about his claims and provided further details regarding his fear of harm on the basis of past political activities and his political affiliation.  Details of the information provided during the interview are included in the delegate’s decision record. 

16. On 21 February 2022 the Tribunal received the following documents in support of the review applications:

    ·Photo of [an Employer 1] card with applicant’s name and title ‘[Occupation 2]’

    ·Various photos of the applicant at representative events, including [Event 1], [Event 2], [Event 3] and [Event 4].

    ·Death certificate of applicant’s brother [in] August 2021 indicating death by cardiac arrest

    ·News article written by applicant, dated [Date] about the arrival of the Sierra Leone [Group] in [Country 1] in [Month, year], referring to the applicant as one of the accompanying individuals, being [an Occupation 2] of [Employer 1], who is serving as “[role]” ; an article from the same publication (no reference as to author) also dated [Date] relating to selection of [group members] for [Event 6]

    ·Copy of Freedom House Freedom in the World 2021 Sierra Leone ratings regarding Political Rights and Civil Liberties.

17. At the hearing the applicant gave evidence about his current address where he has been living for the past three years. He works full time as [an Occupation 3] at a [Workplace].

18. He confirmed that he completed the application form with some limited assistance from [Organisation 2]. The Tribunal asked him about the clarification he made to the delegate at the interview regarding his position in the Sierra Leone [Event group], noting that he stated he was [specified role] in the application. He said he was in fact [a different role].  There was no [specified role] as such, and he performed different roles.

19. He is married with four children, twins born in [Year 1], and two others born in [Year 2] and [Year 3].  They are living with friends known to him, near the [Country 5] border. The Tribunal noted that at the department interview he referred to her being in [Country 6] with her sister.  He clarified that the officer may have misheard – he said she was in a town called [Town 2] which is a border town in Sierre Leone close to [Country 5].  They have been at the same place since just after he departed for Australia in March 2018 when there were troubles following the election results.

20. He is in regular contact with them, mobile phone network and time differences permitting.  He usually tries to call them on Fridays after he has finished at work. The Tribunal asked how they are and how they are managing.  He said it is difficult for them.  Until recently his [brother] was helping them but he died in August last year from a heart attack.  The applicant clarified that his brother was not living with them, but he would go to them to assist. 

21. His wife trades food in a small stall.  She lives with her niece.  The children are attending school, in Forms [number] and [number] and class [number] respectively. The applicant sends money to his family, previously through his brother but since he passed away, he sends it directly to his wife. Apart from his wife and children, the applicant has his parents, and [sisters] and the children of his late brother in Sierra Leone.  His sisters are all married and live in different locations with their husbands and families. His parents still live in [Town 1], in their own home. His brother used to live with them before he passed away.  The applicant is in regular contact with them, and last spoke with them last Sunday.  They are okay but worry a lot about him.

22. The applicant gave the following history of his addresses in Sierra Leone. He lived with his parents in their home in [Town 1] since his twins were born in [Year].  They moved in with them to help with the children and remained living there until he came to Australia in 2018.  Prior to 2007 he lived at a different address in [Town 1].  He worked in Freetown and travelled there for work.

23. After finishing school, he completed several short term courses in [Occupation 1].  He started working in [Occupation 1] straight after school, but because his father had problems with his eyes and so he had to become the breadwinner for the family. The Tribunal asked about his work history.  He said he was attached to the [Ministry], and [an Occupation 2] for [Employer 1] and a national [Occupation 3]. The position at [Employer 1] was unpaid, but he did receive a salary from the [Ministry].  He was in the media wing and his role was to promote the activity of the [Ministry] and the [Minister], [Mr A], who was Minister from 2012 to 2018. He also [did a specified task] on behalf [Organisation 1], which was part of the work for the [Ministry]. 

24. He also did other work, for example if people had functions they would hire him to help run the function and he would be paid for that.  He promoted people [through Occupation 2] and got publicity for them.  He was very gifted with [a promotional tool] and so he was very popular and well known.

25. The applicant confirmed his travel history.  He went to [Event 1] as a [Position 1], and to [Country 2] as a [Position 2].  He also travelled to [Country 3] for [Event 3] and [Country 4] as a [Position 3] for the [Group member] in [Year 4]. He never had any issues travelling in or out of these countries or returning to Sierra Leone.

26. When asked how he obtained these positions in these delegations he said it was because of his links with the [Ministry] and his active performance.  He was an active member of the All People’s Congress (APC) which was in Government in this period.

27. The Tribunal asked the applicant about his passport, noting that the one he came to Australia on expired in 2018. He said his brother was able to renew it for him in 2019 and sent his new passport by [courier]. Because he had a passport already, his brother only needed that number and they could confirm his previous passport and issued a new one on that basis. He did not seek to apply for his new passport from the Embassy or Consulate in Australia.  He did not know about this process and would assume it would be long and slow. The Tribunal put to him that it may have some concerns about the plausibility of the process he described to renew his passport.  He said he knew the officer in charge at the passport office, and he called him and told him he had an urgent request. He paid the fee and his brother attended to make the application.  His brother called him while he was at the office and he gave his authority. The Tribunal asked why he applied for a passport in 2019. He said he needed it here to obtain a Medicare card and also for his driver’s licence. The Tribunal asked if he had any issues having his passport renewed. He said he did not because the people in the passport office are known to him from previously.

28. The Tribunal asked the applicant the reasons he made this application. He said it is no secret in his country that he is a member of the previous government’s APC party. He was a mouthpiece for the party with his [work] and was well known everywhere as a supporter of the previous government party.

29. The Tribunal asked how he came to be affiliated with the APC. He said he is from the north of the country and according to his tribal affiliation, Temne, they follow this party whereas the Mende people follow the SLPP.  The applicant confirmed that the reference to him belonging to the Mende tribe in his written application was a mistake and he is in fact from the Temne tribe.

30. In his home area of [Town 1], the majority of the people belong to the Susu tribe and they are supporters of SLPP.  The Temne tribe are a minority in his area.  There are only about 20 houses which belong to Temne and the rest are Susu.  The two tribes have their own mosques, churches, schools. They are divided on matters of politics and religion. It has always been like that since time immemorial. The Tribunal head is Susu.

31. The applicant said that he has never hidden his political affiliation to the APC.  So for example at [public events] and other events he was very vocal promoting the APC candidates and party. He often received threats from political opposition – along the lines of ‘wait until the election result is known and we will come for you’ – these threats were made in public places like coffee shops where people go. The threats were made by SLPP supporters. They considered him like a South African ‘vuvuzela’ for the APC.

32. The Tribunal asked why, if the SLPP won the election, would their supporters go for him.  He said the SLPP have a tradition of engaging in a witch hunt when they get in power. They burn houses, arrest former government officers and burn offices of the APC.

33. The Tribunal asked if there was any particular APC politician he supported or campaigned for. He said he supported the party not any particular person. He supported Samura Kamara for President. The Tribunal asked him what he knew of the election result and what kind of election it was. He said it was a Presidential election and the SLPP candidate Julius Bio won. The Tribunal asked if he knew the outcome of the Parliamentary election. He said he knows that APC won that but later on the SLPP managed to eliminate members of the APC and so they took over majority. The remaining APC MPs walked out on the speaker in Parliament. Police brutalised members of the Parliament. The Tribunal put to him that independent information before it indicates that in 2021 the SLPP lost its Parliamentary majority and asked him if he was aware of that.  In response the applicant said that each district has a representative in Parliament and there are many by elections pending, but if the SLPP are not certain of winning they will not allow the elections to occur.

1. The Tribunal asked the applicant what happened after the elections results were announced.  He said they rampaged in his area. According to his wife all the downtown SLPP supporters came with their ‘pot covers’ and surrounded their house.  She too was well known because she would often prepare food for events.  They were asking for him.  The Tribunal asked if anything happened to his wife.  He said they grabbed her clothes and she was ‘seriously molested’ but otherwise she was not harmed.  His wife was warned to get away from there and the applicant was also worried for her.

2. The Tribunal asked if she was arrested and detained as indicated in his written statement. He said they encircled her and used provoking words but she was calm and she managed to avoid being harmed.  He said that what he meant by that description is that she was ‘arrested’ by the group but a lady amongst them managed to get her out safely.

3. The Tribunal asked who these people were. The applicant said they were SLPP supporters.  There are three of them who have always had issues with them, even harassing them when they are getting water.

4. The Tribunal asked whether in all the previous years he had ever been harmed by them or had problems. He said he was not, because no one would try when the APC were in power.

5. The Tribunal asked if his wife has returned since she left.  He said she has not returned because she is worried they will harm her or the children. The Tribunal asked how his parents and brother were able to remain living there.  He said his parents are old people and no one will bother them.  His brother was a member of a different party called People’s Movement for Democratic Change (PMDC) and did not face the same problems.

6. The Tribunal asked the applicant if he fears harm from these local people known to him, why can’t he live elsewhere upon return to avoid them where people would not be aware of his past activities.  In response the applicant said that he was a well known person in his country.  He campaigned for the APC throughout the country and would be known wherever he went. He said his face was at the forefront of the papers.

7. The Tribunal asked the applicant if he has been involved in any political activities or campaigns in any form since being in Australia. He said he has not because of his status here which does not permit him to. The Tribunal asked him again if he has written or posted anything online or on social media in support of the APC since being in Australia. He said he does speak with authorities from the APC about the future of the party. The constitution was recently fully accepted.  The applicant said the judiciary in his country is not impartial.

8. The Tribunal asked how he communicates with the party from here. He said he used to have access to free calls to Sierra Leone on [telecommunications carrier] but this is no longer available. It is very difficult to communicate with the APC these days, even Ministers are in prison.

9. The applicant confirmed he has not been active on any social media platform.  He is very afraid to engage because he is fearful for his family’s safety and so he has kept a low profile.

10. The Tribunal asked if he returned what would he do, what is he afraid of. He said he is afraid he will face problems because the community is very small.  He fears they will come for him and torture him. There are no human rights there. 

11. The Tribunal put to him that if he goes back and is not involved in doing the promotion work for APC Ministers or candidates why would he have problems. He said no matter where he goes, even a remote village, they will trace him because they know his name and he is very popular. He fears he will be taken to Bengazi which is a prison built for opposition people where recently a former MP, Sherif Carew was taken.  

12. The Tribunal put to him that on the independent information it has seen and what he has said about his past activities, it may not accept there is a real chance he will suffer serious harm if he returns now.  While it accepts there is and was political tension between these two political parties, this occurred during and following the election period and it is now some years later.  In response the applicant said the campaign for the 2023 elections has almost started. In Sierra Leone each party is in power for at least 2 terms and they use all their powers to stay in power. It will not be easy for him if he returns now especially if the campaign for the next election is on.

13. The Tribunal asked if he wishes to say anything further about his fear of harm on the basis of his tribal affiliation.  He said he has never hidden his identity or political affiliation.  He is well known throughout the country. He will be picked at like bones of a fish if he returns. Because of his tribal ties he is bound to support this party.  The Tribunal put to him that he has not referred to any problems experienced by his parents or brother due to their tribal affiliation and given they have remained living among the Susu throughout this period.  In response to this the applicant became emotional and said he does not like to talk about his brother because it upsets him. He believes part of the cause of his brother’s early death was the pressure caused to the family of his situation. Also there are many parties in Sierra Leone and APC and SLPP are only two of the main ones.

14. The Tribunal put to him that it may accept that upon return he will lose opportunities he previously had because of his affiliation with the APC that is no longer in power, but loss of such opportunities does not amount to ‘serious harm’ for the purposes of the criteria the Tribunal is considering. In response the applicant said that he does not dispute that but it is his life he fears losing and there is no opportunities if one has no life. 

15. The Tribunal invited the applicant to provide any further evidence to support his claims, including evidence to establish that his wife and children moved away from [Town 1] in 2018 and have remained away since then, such as evidence of school enrolments and where he sends remittances to. It allowed a period of one week, to 2 March 2022. 

16. On 3 and 7 March 2022 the Tribunal received the following evidence from the applicant:

    ·Prospectus for [School, Town 2]

    ·Photos of children at school, and photos of children and their mother

    ·Receipt for money transfers:

    ·   13 October 2020 for AUD$300 sent to [Mr B] (brother)

    ·   2 July 2021 for AUD $270 sent to [Mr B]

    ·   28 July 2021 for AUD$100 sent to [Ms C] (wife)

    ·   13 April 2021 for AUD$450 sent to [Mr B] (brother)

    ·   20 February 2022 for AUD$100 sent to [Ms C]

    ·   24 February 2022 for AUD$140 sent to [Ms C]

    Further hearing 1 September 2022

17. The Tribunal put to the applicant information it had obtained in an open source search of the internet following the first hearing of a news article[1] which referred to a person by the same name and referred to some similar claims, but also contained significant different information regarding family members and location to the evidence he previously gave to the Tribunal. The Tribunal gave him a copy of the article and invited his comment on it.  He responded immediately, without hesitation that the article did not relate to him.  He stated that the individual referred to may have the same name but it is not him.

    [1] [Source deleted]. 

18. The Tribunal noted that the applicant earlier submitted news articles he claimed were written by him, the last of which dated from 2012.  It noted that it has been unable to locate any more recent articles in its own research and asked if he had published anything since.  The applicant confirmed he had not, because after that time he was no longer involved in print media, he only worked [in Occupation 2]. 

19. The Tribunal asked the applicant what if any political activity he has engaged in since being in Australia. He said he is not involved in any politics from here. He said he was fearful of being framed so he has not been involved. From time to time he has called a senior political from the APC to see how he is. When asked to name this person, he referred to [Mr D] who was [an associate] of the APC Presidential candidate in 2018. When asked for further information about this contact, the applicant said this person was an active member of the APC, and is now the leader of the opposition and an MP.  He phones him from time to time, from a phone booth, just to enquire about his well being. The last time he called him was over two months ago, but he told him that he was busy with a by election. ‘

20. The applicant confirmed that he has not been active in politics since he came to Australia because of his fear of being traced.

21. The Tribunal noted the applicant’s evidence that his wife and children live in [Town 2] and have been living there without incident since he has been in Australia and asked why then he could not live in [Town 2] with his family and be safe from harm. In response the applicant said many people don’t even know they are there. They stay close to the border.  If he returns, he is so renouned and everyone knows him so he would not be safe anywhere. The applicant said his face is a national face, he is well known as a national [Occupation 2] and because of this it is difficult to g back and not be tracked down. He was responsible for the political party (APC’s) [specified] activities and that was how they interacted together.  His life is at risk because of this.

22. The Tribunal discussed with the applicant the issue of third party protection, explaining that Australia does not owe protection if there is a third country he can enter and reside where he can be safe. It put to him that Sierra Leone is a member of Economic Community of West African States (ECOWAS) and under the ECOWAS Treaty he may have rights of entry and residence in any of the member countries and asked whether there was any reason he cannot enter and reside in these countries.  He said he cannot be protected in any of the African countries.  There are also language barriers for him and his children and so he cannot go and live in any of these countries. He said the President of his country travels to all of these places and he would be able to be repatriated easily. He fears harm from the SLPP in all of the ECOWAS countries because they too can enter freely.  The applicant said the issue is not whether he can enter, he is fearful for his life there for the same reasons he is fearful in Sierra Leone. He acknowledged that he has previously travelled to [Country 4] and [Country 5] but on those occasions it was for the purpose of study and work respectively and he had relevant authorisation letters. He said that he would be picked up on the databases upon entry and all of these countries collaborate with each other so he would be at risk of harm because he could be located. The applicant reiterated that he is not safe anywhere in Africa.

23. The Tribunal put to the applicant the country information it has considered suggests that, while there is political violence, a lot of it takes place in the south and east of the country and he is originally from the north which largely remains APC stronghold and on this basis the Tribunal may find he is not at risk of serious harm.  In response the applicant said that political violence is prevalent in the country and there is no justice, no freedom and no human rights.  He referred to recent events where there was a political protest and it lead to largescale killing of people by police and security forces. He referred in particular to the case of a person named Hassan Dumbaya, also known as ‘Evangelist Sam’ who was killed in this incident. Initially the authorities refused to release his body because they did not want anyone to know.  The applicant said that like this person, he is an APC supporter and he fears the same fate awaits him. The Tribunal put to him that its issue is whether he has a profile to attract a risk of harm targeted to him.  While he claims to be a high profile [Occupation 2], known throughout the country, it appears to be based only on his oral testimony.  He said he did not bring all his documents with him when he left his country. Even here in Australia he has been doing [Occupation 2 task] for [Event 7]. 

24. The applicant’s representative summarised that the applicant’s claims are based on his political opinion and affiliation.  He submitted that the country information referred to by the Tribunal is from December 2020  and there has been escalating violence since then.  The incidents the applicant referred to relate to events in August 2022 and he has just now uploaded several articles in support of the applicant’s claims regarding Evangelist Sam.  The Tribunal noted this and undertook to consider this information, the submissions and the applicant’s oral evidence. 

25. Prior to, and following, the second hearing the applicant provided the following documents:

    ·News articles relating to the death in crossfire of Evangelist Sam, reported as a ‘popular APC supporter’ at a protest event on 10 August 2022: Sierra Leone police say Evangelist Samson was killed in crossfire between armed police and ex-combatants, 16 August 2022, The Sierra Leone Telegraph; BREAKING: Police Reveal Why APC Supporter, Evangelist Samson Was Shot Dead, Sierraloaded, by Aaron Parker

    ·Cooper Inveen and Umaru Fofana, Sierra Leone imposes nationwide curfew amid deadly anti-government protests, 11 August 2022, Reuters

    ·Letter dated 31 August 2022 confirming applicant’s employment at [Employer 2] since 30 August 2018.

    Independent Information

    Background information about the political situation in Sierra Leone

26. In March 2018, the opposition Sierra Leone People’s Party (SLPP) candidate, Julius Maada Bio, won the presidential election in a second-round run-off. In the 2018 parliamentary election, the All People's Congress (APC) retained its majority in parliament. Following a High Court decision in May 2019 to remove ten APC members of parliament for allegedly violating electoral laws during the election campaign, and replace them with nine SLPP members, with the tenth to be chosen through a by-election, the SLPP became the largest party in parliament. In March 2021, following a by-election, the SLPP held 59 seats in parliament and the APC 58 seats. In June 2021, it was reported that the SLPP may have lost its majority in parliament after the National Electoral Commission declared an SLPP Member of Parliament the newly elected Paramount Chief of Sambaia Chiefdom.[2]  

    [2] 'Sierra Leone: 20211008163242 - Political Situation - Political Parties - Violence - Sierra Leone People's Party (SLPP) - All People’s Congress (APC) - Activists - Journalists - Poro Society - Recruitment - Athletes Overstaying Abroad - Tribal Affiliations', Country of Origin Information Services Section (COISS), 19 November 2021, 20211123103128

27. The US Department of State (USDOS) report on human rights practices in Sierra Leone for 2020 states that ‘Sierra Leone is a constitutional republic with a directly elected president and a unicameral legislature’.[3] The report continues:

    In March 2018 the opposition Sierra Leone People’s Party [SLPP] candidate, Julius Maada Bio, won the presidential elections. In January 2018 parliamentary elections, the All People’s Congress [APC] 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. Observers found these elections to be largely free and fair.[4]

    [3] 'Country Reports on Human Rights Practices for 2020 - Sierra Leone', US Department of State, 30 March 2021, Executive Summary, p.1, 20210409135837

    [4] 'Country Reports on Human Rights Practices for 2020 - Sierra Leone', US Department of State, 30 March 2021, Executive Summary, p.1, Section 3, pp.12-13, 20210409135837

28. Other credible sources also reported on the assessment that the elections were found to be largely free and fair.  For example, the 2021 Freedom House report[5] and the BTI 2020 country report on Sierra Leone.[6] The BTI report also indicated, however, that in mobilising the electorate, ‘both parties resorted to exploiting existing ethno-regional divides within the country… As in the past, political mass support was generated by accentuating ethnicity rather than presenting competing political visions and programs. This resulted in the deepening of societal antagonisms and contravened the peace consolidation processes’.[7]

    [5] 'Freedom in the World 2021 - Sierra Leone', Freedom House, 2021, A1, pp.2-3, 20211001084356

    [6] 'BTI 2020 Country Report Sierra Leone', Bertelsmann Stiftung, 29 April 2020, p.3, 20200430165835

    [7] 'BTI 2020 Country Report Sierra Leone', Bertelsmann Stiftung, 29 April 2020, p.3, 20200430165835

29. The BTI report further 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’. Antagonism between the APC and the SLPP had ‘led to violent clashes in the run-up to the general elections in March 2018. This was not unexpected. Despite an agreement to prevent violence between supporters of each party, signed by both parties in 2009, their radicalized youth organizations are prone to the use of violence’.[8]

    [8] 'BTI 2020 Country Report Sierra Leone', Bertelsmann Stiftung, 29 April 2020, p.25, 20200430165835

30. An April 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’.[9]

    [9] ‘A little hope in Sierra Leone - Sierra Leone’s new president has made big promises’, The Economist, 14 April 2018, 20211116182555

31. A number of by-elections have been held since the March 2018 elections, helping the SLPP consolidate its power.[10] The practice of importing groups of youth/thugs to intimidate and harass communities prior to by-elections has occurred in recent years.[11] Publically, the APC and SLPP tend to blame incidents of low-level violence on each other.[12]

    [10] ‘Sierra Leone: How the SLPP took power. And then took some more’, L Enria, J Hitchen, African Arguments, 28 October 2019, 20211118133107; ‘The new government’s tense struggle for control a year on’, K De Bruijne, African Arguments, 18 April 2019, 20211116075802

    [11] See footnotes 40-52.

    [12] ‘President Bio's Allegation Dismays APC, Calls for Peace and Justice’, Concord Times, 13 May 2020, 20220317150919

32. 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’.[13]

    [13] 'Country Reports on Human Rights Practices for 2020 - Sierra Leone', US Department of State, 30 March 2021, Section 3, p.13, 20210409135837

33. 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’.[14]

    [14] 'Sierra Leone 2020 Crime & Safety Report', Overseas Security Advisory Council (OSAC), 4 July 2020, 20210924101412

1. An October 2019 article from African Arguments indicates that in the 18 months since the general election, Sierra Leone had held by-elections that had ‘been marred by political violence and accusations of malpractice’. The article refers to the comments of Marcella Samba-Sesay from the Campaign for Good Governance, who said that by-elections in Sierra Leone had ‘become battlegrounds for “a [wider] fight between the APC and SLPP that permeates every space in society, including state institutions”’.[15]

   [15] ‘Sierra Leone: How the SLPP took power. And then took some more.’, Enria, L & Hitchen, J, African Arguments, 28 October 2019, 20211118133107

2. In May 2020, it was reported that over the previous few weeks, sporadic violent clashes had occurred in parts of Sierra Leone, ‘leaving over a dozen people dead, many hospitalised and property destroyed. Reasons for this unrest are unknown but have been widely attributed to coronavirus restrictions’. In an address to the nation, ‘President Bio accused the main opposition, All Peoples Congress (APC), of aiding and abetting the violence by financing, planning and inciting crimes he labelled as “terrorist attacks”’.[16] The government said the unrest was ‘part of a calculated plot by the APC to fulfil a threat by its defeated candidate in 2018 elections to make the country ungovernable’.[17] The APC denied the accusations.[18]

   [16] 'Covid-19 restrictions give rise to political tensions in Sierra Leone', Mail and Guardian Online (South Africa), 18 May 2020, 20200616121306

   [17] 'Sierra Leone president accuses opposition of 'terrorizing' state', Daily Nation -Kenya, 9 May 2020, 20200511104901

   [18] 'Sierra Leone's president accuses main opposition party of inciting violence', Reuters, 10 May 2020, 20200619104919

3. Observers said ‘that accusing the main opposition in such strong terms’ would ‘only aggravate the political tension’ that had ‘been brewing’. This came ‘off the back of the arrests and detention of high profile former ministers in the APC administration’, including ‘Alfred Paolo Conteh, a retired major and former minister of defence, who was accused of treason as well as possession of undeclared weapons. Another arrestee is Sylvia Olayinka Blyden, a journalist and politician who served as former minister of social welfare, gender and children’s affairs, who was arrested for incitement and subversion, according to the Sierra Leone Police’.[19]

   [19] 'Covid-19 restrictions give rise to political tensions in Sierra Leone', Mail and Guardian Online (South Africa), 18 May 2020, 20200616121306

4. Media articles indicate that the SLPP and APC tend to blame politically motivated violence on each other.[20]

   [20] See for example, Sierra Leone's president accuses main opposition party of inciting violence’, Reuters, 10 May 2020, 20220317144122, President Bio's Allegation Dismays APC, Calls for Peace and Justice’, Concord Times, 13 May 2020, 20220317150919

5. In its February 2022 country report on Sierra Leone, Bertelsmann Stiftung indicate that there are on-going risks of violence surrounding elections when parties appeal to ethno-regional divide (tribalism) which is typical.[21]  This risk extends to by-elections and re-run elections. A number of by-elections, re-run elections and paramount chieftaincy elections took place during the reporting period and more are scheduled for 2021. In a hotly contested by-election in Constituency 110, Freetown Peninsula, in December 2020, which was overshadowed by violence and allegations of fraud, the APC candidate won.[22]

   [21] ‘BTI 2022 Country Report - Sierra Leone', Bertelsmann Stiftung, 22 February 2022, p.9, 20220301124010

   [22] ‘BTI 2022 Country Report - Sierra Leone', Bertelsmann Stiftung, 22 February 2022, p.10, 20220301124010

6. Bertelsmann Stiftung report that ‘[i]mprovished youth are particularly prone to political indoctrination and instrumentalization’ and that an ‘enduring lack of socioeconomic opportunities may tempt desperate young men to resort to violence’.[23]

   [23] ‘BTI 2022 Country Report - Sierra Leone', Bertelsmann Stiftung, 22 February 2022, p.35, 20220301124010

7. The Armed Conflict Location and Event Data Project (ACLED) considered the prevalence of political violence in Sierra Leone since the end of the civil war 20 years earlier, finding that political violence had increased since 2014/15:

   By early 2020 Sierra Leone found itself at levels of political violence that were higher than at any time since the end of the war. Some months in 2018 and 2019 show levels of political violence that are comparable with periods during the civil war.[24]

   [24] ACLED, When Emerging Democracies Breed Violence – Sierra Leone 20 years after the civil war, 2020, available at: p 10

8. ACLED reports that official security forces, militias and members of the SLPP and APC are active perpetrators of political violence in Sierra Leone:

   The second most active group are official security forces, most notably police and military forces, including various branches such as the Presidential Guard and the Operational Support Division (OSD). From the data, it is clear that the police forces are more involved than the military in violence. Police are particularly responsible for most violence against civilians events since the end of 2017. Both the larger share of police activity vis-à-vis the military, as well as their overall involvement in violence against civilians, is roughly comparable with other countries in the sub-region.

   A third category of perpetrators are militias and members of the SLPP and APC. It is an open secret that both the SLPP and APC have well-developed security outfits orbiting both parties since at least since 2007, when high-ranking commanders from all former warring factions were recruited into political parties. Party militias are divided into various branches. Ex-combatant commanders generally are on top of the hierarchy, serve as close protection units to party leaders, and run paid and relatively professional party intelligence systems. Next to them are semi-institutionalized militias around the party offices, headed by some notorious leaders who are directly deployable when needed. Orbiting around these militias are large groups of party supporters, more or less experienced in using violence, who move in and out of these semi-institutionalized militias and can be called upon in times of need. Finally, there are specific groups to each party that in varying degrees can control violence. The SLPP has, in addition to its militias, a very large defensive and well-organized structure called the “Benghazi Unit” or “Party Marshalls.” This structure has a presence throughout the country and consists of older ex-combatants, among others.[25]

   [25] Id, p15-16

   FINDINGS AND REASONS

   Nationality

9. On the basis of his Sierra Leone passport, and no issue relating to his identity having been raised by the Department to date, the Tribunal accepts the applicant is a national of Sierra Leone and considers Sierra Leone is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

   Consideration of applicant’s claims

10. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However it is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

11. In the present case, the applicant claims to fear harm upon return to Sierra Leone on the basis of his political affiliation and support of the APC which lost the presidential election in March 2018 and is presently not in power. He claims he had a significant public profile as a supporter and promoter of the APC party. He fears retaliatory harm from SLPP supporters as a result of the loss of power of his party. He claims he has a public profile because he was [an Occupation 2] for [Employer 1], was often asked to MC at public events and he [did specified task] on behalf of [Organisation 1]. He travelled with the Sierra Leone [Group] to [Events 1 and 2] and [Country 4] for [Event 4] and [Event 3].

12. The Tribunal has considered the applicant’s oral evidence to the Department and Tribunal and documentary evidence provided in support of his application, together with independent information about the situation in Sierra Leone available to the Tribunal, including articles provided by the applicant.

    Claims regarding applicant’s background and circumstances

13. The Tribunal accepts that the applicant was born and lived in [Town 1], Port Loko District which is located in the Northern Province of Sierra Leone. He belongs to the Temne tribe and is of Christian faith.  The Tribunal accepts these background details on the evidence of his consistent written and oral evidence, and place of birth indicated on his previous and current passport.  He is married and has four children.  He clarified the location of his wife and children in his oral evidence to the Tribunal and provided further documentary evidence following the hearing.  On this evidence the Tribunal finds that his wife and children are living in the town of [Town 2], also located in the Northern Province of Sierra Leone since 2018 following his departure from the country.

14. The Tribunal accepts the applicant’s claims that he is a long time supporter of the APC party.  He told the Tribunal his affiliation with this party comes from his ethnic group’s (Temne), association with this party, and offered no other explanation or basis for his support. The Tribunal notes that his claim of a tribal affiliation is consistent with independent information before the Tribunal indicating 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.[26] 

    [26] BTI 2020 country report on Sierra Leone states that ‘[w]hile the APC is deeply rooted in the northern regions and in the Temne and Limba ethnic groups, the SLPP remains more or less a Mende party based in the southeastern parts of the country: 'BTI 2020 Country Report Sierra Leone', Bertelsmann Stiftung, 29 April 2020, p.12, 20200430165835; see also  Country Report on Human Rights Practices for 2018 - Sierra Leone', US Department of State, 14 March 2019, Section 3, p.14, 20190314113411

15. The applicant claimed he worked as [an Occupation 2] at [Employer 1], which was not a paid position, but had paid employment with the [Ministry] in various positions, including in its media wing, and that he [did specified tasks] on behalf of [Organisation 1]. While the Tribunal found the applicant’s evidence regarding his employment history somewhat general and vague on details, it is prepared to accept he had an association with [Employer 1] on the evidence of his oral testimony to the delegate and Tribunal, copy of his identification card provided with the application and reference to his position as [an Occupation 2] of [Employer 1] in several news articles dated in [year].[27] Although those articles were written by him, the Tribunal observes they were written long before he came to Australia and made these claims and on this basis the Tribunal accepts they support his claim to have worked there, at least at that time.

    [27] [Sources deleted]

16. The Tribunal accepts that the applicant travelled with the Sierra Leone [groups] to [Event 1], [Event 2], and other international events in [Year] in [Country 3] and [Country 4], and that he came to Australia with the [group] for [Event 5].  He has been consistent in his written and oral evidence about this past travel history and provided supporting documentary evidence including photos and historical news articles written by and referencing him.[28]

    [28] ibid

17. The applicant claimed he was included in these [groups] because of his links with the [Ministry] and his political activism in support of the governing party, All People’s Congress (APC) at this time.  While the Tribunal is prepared to accept this as a plausible and credible explanation for his inclusion in the [groups], given no other basis for his inclusion is obvious from his background and qualifications, it is less convinced about his claims regarding the level and profile of his political activism on behalf of the APC.  The Tribunal found his evidence about his political activism and activities were generalised, vague and lacking in detail. He claimed that he was a vocal promoter of the APC at [public events] and events where he [worked at], and promoted the activity of the [Minister], who he named as [Mr A][29], but provided no other details of his political activities or activism.

    [29] The Tribunal notes that information obtained from open source materials refer to an ‘[Mr A]’ as [Minister] in the former Ernest Nai Koroma administration, consistent  with the applicant’s claim: see for example,  [Sources deleted]; although an individual named [Mr A] is presently a member of the Sierra Leone Parliament and is indicated to belong to the SLPP: [Source deleted]

18. When asked about his involvement in the 2018 election campaign he told the Tribunal he was not actively campaigning for any specific APC candidate. He stated only that he supported the APC Presidential candidate Samura Kamara.  The applicant told the Tribunal he was a ‘national’ [Occupation 2] well known throughout the country and clearly affiliated with, and a supporter of, the APC.   However, apart from his oral testimony he provided no other evidence, of articles or other media coverage, to support the claim of his national profile and the Tribunal is not convinced that he is or was as well known or famous as he claims. 

19. The applicant told the Tribunal he has not been involved in any political activities or activism since he came to Australia. He claims that he has had some phone contact from time to time with senior members of the party, and named [Mr D] as one of these people, but gave scant details of the nature or purpose of his communications, or how often.  In the absence of other evidence to support this claim, the Tribunal is not satisfied on his oral testimony alone that he has a close relationship with senior members of the APC, or has maintained any contact with anyone since he has been in Australia. There is no evidence to support that the applicant has any profile to generate interest in him upon return for his political views or activities having left Sierra Leone over 4 years ago. 

20. On the basis of the evidence, the Tribunal is prepared to accept that the applicant was a supporter of the APC and had a level of connection with the governing party during that period to warrant the political patronage he appeared to have, but it rejects his claim that he was a political activist who had a high profile as an APC supporter across the country.  On his own evidence, the applicant did not actively campaign for a particular APC candidate.  His claims were that he promoted and supported the party generally at events and programs he was involved in while working part time as [an Occupation 2]. The Tribunal accepts he was an APC supporter, consistent with his tribal affiliation and he would have been vocal and confident about his support during the period the APC were in power.

    Claims of past harm and events since the 2018 election results

21. In his application and in oral evidence the applicant claimed that he experienced verbal threats from SLPP supporters in his local area that they will come for him when the election result is known.  He was unable to explain in any convincing manner why members of the SLPP would come after him after they had won the presidential election, other than that they have a tradition of engaging in a witch hunt after they gain power, burning down houses and arresting former government officers. The Tribunal acknowledges the independent information referring to violent clashes between APC and the SLPP in the run-up to the general elections in March 2018 and attacks by SLPP supporters against followers of the APC in the period following the results, occurring in the southern and eastern parts of the country (see paragraphs 62-63 above), but it is not satisfied that he was targeted as claimed.

22. The applicant claimed that, although he was in Australia by this time, he heard that they rampaged through his area and his wife was surrounded by them at their house asking for him.  His evidence to the Tribunal, however, about this incident was significantly different to what he told the delegate at interview and what was provided in his written claims.   He told the Tribunal she was molested and her clothes were groped by a group of 3 SLPP people and they used provocative words towards her, though she was able to escape to safety.  In his evidence to the delegate, the applicant stated that while the SLPP came to look for him at his house, nothing happened to his wife, she was able to be removed from the area by a neighbour and has been living safely elsewhere ever since.  In his written application, on the other hand, the applicant referred to his wife being arrested and detained by the SLPP supporters and only escaping with the help of neighbours. The applicant has not claimed he or his family ever experienced any threats or harm from SLPP supporters in the past.  In light of the Tribunal’s finding rejecting the applicant’s claim to be an active and high profile APC supporter, the lack of any history of past harm from local SLPP members and the above mentioned inconsistencies in his account of this incident, the Tribunal finds that this claim lacks credibility.

23. The Tribunal does not accept that his house was surrounded by SLPP supporters looking for him following the March 2018 election result. It does not accept his wife was attacked, groped or verbally threatened or abused. 

24. The Tribunal finds that neither the applicant nor his wife or children have experienced any direct harm from SLPP supporters before or since the March 2018 elections.

25. As discussed above (paragraph 50), following the first hearing, the Tribunal located a news article that referred to a person with the name of the applicant, but containing various details about the individual and his family that was significantly different from the evidence presented by the applicant in his written application and oral evidence to the Department and Tribunal.  At the second hearing, convened to discuss this issue among other matters, the applicant confirmed that this article did not relate to him or his circumstances. He acknowledged that the name of the subject individual was the same as his but the content of the article was not in reference to him. On this basis the Tribunal places no weight on this article or its contents.

    Risk of future harm

26. The applicant told the Tribunal that his wife and children have lived in [Town 2] since he has been in Australia. Following the hearing he provided evidence of photos of the children, and his family, in front of their school, a school prospectus, and evidence of financial transfers sent to his (now late) brother and his wife in support of his claim that they remain living in [Town 2] to date. 

1. He told the Tribunal that his parents and his brother, until his death in 2019, stayed in their home in [Town 1], where the applicant previously lived with his family.    

2. As indicated above, country information before the Tribunal indicates that politically motivated harassment, intimidation and occasional violence are commonplace, and has been escalating in recent years, in Sierra Leone. Politicians from both main parties tend to promote tribalism to gain support and this leads to regional divisions and violence. Violence is on-going in the sense that it reoccurs during elections but the activities generally ease following the conclusion of an election.

3. The next presidential and parliamentary elections are due in 2023. In the case of the March 2018 presidential and parliamentary elections the SLPP won the presidential election but without a parliamentary majority. The period following the elections was tense and a number of results were challenged in court. More generally, as described in the country information above, the SLPP and APC often utilise groups of youth to harass and intimidate their rivals. Harassment and intimidation can be generalised against political party supporters during electioneering or more targeted towards politicians and their families, or sometimes those with close connections to politicians. Given the 2018 parliamentary elections were won by a slim margin by the SLPP, by-elections have been crucial for the SLPP to consolidate its power, and there have been isolated incidents of harassment and intimidation surrounding some by-elections in various districts during 2021.

4. In February 2021, the National Election Watch (NEW) published an assessment of the pre-election environment in the weeks prior to three by-elections held in Kailahun (Eastern Province) and Kambia (North-Western Province) districts.[30]  Of intertest to the present case the Tribunal notes that the NEW post-election report contained no significant incidents of concern following the Kambia District by-election.[31]  The Tribunal also observes the current sitting Member of Parliament for the Port Loko District in North West Province is a member of the APC.[32]

   [30] Pre-Election Assessment Report Ahead of Bye-Elections in Constituency 010, Ward 012 in Kailahun and Ward 192 in Kambia District’, National Election Watch, 22 February 2021, p.2, 20220310105759

   [31] NEC Conducts Peaceful Bye-election in Ward 192, Khonimaka Chiefdom in Kambia District’, National Election Watch 9 March 2021, 20220310114618

   [32] Hon. Abdul Latiff Sesay (parliament.gov.sl)

5. The Tribunal has considered the applicant’s claims that he fears harm in future on the basis of his profile as a APC supporter, known throughout the country as a public [Occupation 2].  Above, the Tribunal accepted that the applicant was an APC supporter but rejected his claims about being a well known, nationally recognisable or famous [Occupation 2].  It found that neither he, nor members of his family, experienced harm from the SLPP either before or since the March 2018 elections. He has not engaged in any political activity nor has a political profile since he has been in Australia. The Tribunal acknowledges and accepts that a degree of political violence, including between supporters of the APC and SLPP, continues to occur in Sierra Leone.  It accepts there is information which suggests it has in recent years been escalating.  However, having regard to the nature of that violence, as described  and analysed in independent information before the Tribunal (see above paragraph 74), and the Tribunal’s findings about the background and profile of the applicant, it is not satisfied that he personally faces a real chance of serious harm on the basis only of being an APC supporter.

6. While it accepts that he may feel reluctance to return to Sierra Leone given the changed political landscape since his departure, and possible consequent loss of patronage, it is not satisfied he faces a real chance of being targeted for serious harm for reasons of his political affiliation with the APC. The applicant has been outside the country for the last 4 years and has had limited contact with the APC and has not engaged in any political commentary or activism in this time. His wife and children have been living safely in [Town 2], in the North Western Province since 2018, which suffered no significant incidents of concerns during the last by-election.  The Tribunal also notes that the majority of current Members of Parliament in the north and north west provinces belong to APC.[33]

   [33] Members Of Parliament

7. For the above reasons the Tribunal is not satisfied the applicant faces a well founded fear of being persecuted for reasons of his political opinion, or any other reason specified in s5J(1).

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

Complementary protection criterion

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). ‘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.  

102.   Above, the Tribunal rejected the applicant’s claims to be a well-known or famous public [Occupation 2] in Sierra Leone and that his house and wife were attacked following the March 2018 elections.  It was not satisfied that he faces a real chance of serious harm from the authorities or SLPP supporters given the findings made of his profile and background and independent information considered regarding country conditions. For the same reasons, (on the basis of the reasoning in MIAC v SZQRB [2013] FCAFC 33, which equate the standards of ‘real chance’ and ‘real risk’), the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm defined in the legislation, if the applicant were to be removed from Australia to Sierra Leone.

103.   The Tribunal also considered the applicant’s claim that he fears a fate similar to what happened to ‘Evangelist Sam’ who was killed recently in a political protest clash between APC and SLPP supporters. The Tribunal has considered the reports relating to this incident submitted by the applicant together with other independent information of the general security situation in Sierra Leone. To the extent the applicant fears harm from generalised political or other violence, the Tribunal finds that this is a risk faced by the population of the country generally and is not faced by the applicant personally and on this basis there is taken not to be a real risk pursuant to s36(2B).

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

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

   decision

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

Meena Sripathy
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(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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