1819032 (Refugee)
[2021] AATA 5082
•19 November 2021
1819032 (Refugee) [2021] AATA 5082 (19 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1819032
COUNTRY OF REFERENCE: Sierra Leone
MEMBER:Bridget Cullen
DATE:19 November 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 November 2021 at 10.11 am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – member of particular social group – homosexual man – mistreatment by family and attack by gang – imputed political opinion – father, supporter of a political party, missing and contact with only one sibling – credibility – social media shows contact with other siblings, relationship with woman, and child – late claim to be bisexual – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Sierra Leone, applied for the visa on 30 April 2018. The delegate refused to grant the visa on the basis that after assessment of the applicant’s claims, individually and cumulatively, that they would not face a real chance of persecution or harm if returned to Sierra Leone.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee that Australia owes protection obligations to, or whether he is someone would face significant harm if returned to Sierra Leone.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims at the Department stage can be summated as follows:
·The applicant is a homosexual, Muslim man, and in a relationship with another man named [Mr A], and will be harmed or killed because of this;
·He further feared harm from the Sierra Leone People’s Party for imputed political opinions due to his father’s support of the “All Peoples’ Congress Party”, who he claims has been missing since the political elections in March 2018, and that his house has been burnt down. The applicant further claimed he had no knowledge of where his siblings were. He stated he has nightmares worrying about his family;
·His family mistreat him due to his homosexuality and he has been starved and been on the receiving end of violence due to this and his relationship with [Mr A]. The applicant further claims he cannot go to the police regarding this because it is illegal to be a homosexual in Sierra Leone;
·The applicant claims that whilst competing in [an event] for [a sport] in 2017, that he was struck by a rock on his head by members of the crowd, with the belief that this was because the crowd knew he was a homosexual. He further claimed that he was attacked after this competition, also in 2017, by being struck in the back with a stick during a gang fight;
·The general community and the applicant’s friends have discovered he is a homosexual man and now hate him, and has been in fights with gang members because of his relationship;
·He fears the new government of Sierra Leone and a man named [Mr B] has threatened prosecution due to his homosexuality, and fears he cannot relocate to another country near Sierra Leone as the treatment of homosexuals is worse than where he ordinarily resided.
At the commencement of the hearing, held on 3 November 2021, the Tribunal asked the applicant about his family back in Sierra Leone. He told the Tribunal that his mother, [Ms C], died in childbirth in 2008. He has five siblings – two brothers named [Mr D] and [Mr E]; and three sisters named [Ms F], [Ms G], and [Ms H]. The applicant told the Tribunal that his family is filled with sadness as his father, [Mr I], has been missing since the Sierra Leone People Party came into power. The applicant said, in his Statutory Declaration dated 10 May 2018, that his father was a supporter of rival political party the All People’s Congress. He claims that his coach told him that his father was in great danger, and that members of the Sierra Leone People Party had burnt down the family house located in Bo City. Following these events, the applicant says that his siblings fled to neighbouring country, [Country 1].
The applicant told the Tribunal that he has not been in contact with any of his siblings since fleeing Sierra Leone following [a sports event], with the exception of his sister, [Ms H].
The Tribunal asked the applicant about his relationship with [Mr A], who he claims he was in a homosexual relationship with in Sierra Leone. The applicant said that he has been unable to contact [Mr A] following his arrival in Australia, as he does not have a telephone number or email that he can be reached on. The Tribunal then asked the applicant about [Ms J], a girl that he says he had sex with before his relationship with [Mr A]. [Ms J] was a student at a girl’s school in Sierra Leone. The applicant said that he has had no contact with [Ms J] since 2017. In his statutory declaration, the applicant said that, “Since the day [Mr A] and I had sex I never got feelings for a woman again.”
The applicant was then asked to tell the Tribunal about his current life in Australia. He is living in Canberra, doing work for [Employer 1]. The applicant has provided the Tribunal with a letter of support from his employer, which says that he is “extremely polite and courteous” in performing his work in [a specified] industry. The applicant provided the Tribunal with a receipt from a physio appointment that he had recently, which he says relates to ongoing injuries he has following a gang attack in Sierra Leone. The applicant says that he was attacked because he is gay, and points to a scar on his [body part] that he says is the result of an injury during a public attack where rocks were thrown at him by spectators at a [sporting] event in which he was a participant. There is no documentary evidence before the Tribunal supporting the occurrence of any attack on the applicant while he was still resident in Sierra Leone.
The applicant told the Tribunal that he has not been in any relationships since [Mr A]. He said that he lives in Canberra with a roommate. He reiterated his concerns that he would be in danger, as a homosexual man, were he to return to Sierra Leone.
The Tribunal does not accept the applicant’s claims about any of his concerns in returning to Sierra Leone, including fear of being persecuted on the basis of his political affiliation and alleged homosexuality. This is because the Tribunal finds that the applicant is not being , truthful. The Tribunal has obtained information sourced from the applicant’s publicly accessible [social media] account, which contradicts the applicant’s claims to be homosexual, and not in contact with his friends and family in Sierra Leone. It also suggests that the applicant’s mother may not, as reported by the applicant, be dead either. The Tribunal does not have sufficient information to make a determination as to whether the applicant’s mother is in fact, deceased.
At the hearing, and in accordance with the process set out in s.424AA of the Act, the Tribunal particularised information that was before it. As the hearing was conducted by video link, and to ensure that the applicant was afforded procedural fairness, the Tribunal then sent a s.424A letter containing the [social media] screenshots to the applicant, providing him with 2-weeks to make any additional comments and/or submissions. The applicant acknowledged that the information the Tribunal had obtained was from his [social media] site. He said that, “[social media] is not my real life.”
The information reveals the following:
1.The applicant has been in contact with a “[Ms J]” as recently as 22 August 2021, when the applicant posted a photo tagging “[Ms J]”. While nothing particular turns on whether or not the applicant and [Ms J] remain in contact, it does relate to the applicant’s credibility as a witness given the applicant told the Tribunal he had not been in contact with [Ms J] since 2017. The applicant responded and told the Tribunal that this was a different “[Ms J]”. The Tribunal does not accept the applicant’s evidence on this point, for the reason that he had earlier said in his Statutory Declaration that [Ms J] attended a girl’s school in Sierra Leone, and the publicly available page for “[Ms J]” as tagged by the applicant, reveals that [Ms J, short form] attended [School 1l], a private girl’s school in Freetown, Sierra Leone. The Tribunal does not therefore accept the applicant’s explanation that he was referring to a different [Ms J], who also happens to attend a private school in Sierra Leone. Rather, the Tribunal considers that the applicant was untruthful in his claims that he was not in contact with [Ms J].
2.The applicant also told the Tribunal that he was in contact with one of his three sisters, only – [Ms H]. Yet, the [social media] information reveals that the applicant tagged “[Ms G]” who the applicant tagged in a photo on 19 December 2020 with the words “Happy Birthday baby sis…may u live long to celebrate many more…” In tagging [Ms G] (the name of one of the applicant’s sisters he claims to not be in contact with following his arrival in Australia), the applicant reveals that he remains in communication with his family. This further puts his credibility as a truthful witness in doubt.
3.Most surprisingly, are the posts that reveal the applicant has had a child since his arrival in Australia. In one of the posts, dated [in] May 2021, the applicant is pictured holding his daughter, with the comment “Happy [numberth] birthday to my beautiful daughter….may u live long to celebrate many more.” The comments in the post refer to “baby [Nickname]” – the Tribunal notes that the applicant is a [sportsperson], and his [social media] nickname identifies him as “[Nickname]”. The also refer to the applicant as “dad” and there are comments from 2 women who identify themselves as the grandmother – one woman is named [Ms K], and located in Canberra according to her profile (where the applicant now resides), and another named [Ms C name variant], who lives in Sierra Leone. The Tribunal is unable to determine whether this [Ms C name variant] is the same person as [Ms C], who the applicant says in his mother who passed away.
4.The applicant then told the Tribunal that the relationship with his child’s mother, who he says is [Ms L], was a short one, and that they do not live together. He says that he pays child support and that he is listed as the father on his daughter’s birth certificate. When asked how he could be homosexual, when he had subsequently had a child with a woman, the applicant then told the Tribunal he was bisexual. The Tribunal notes that the applicant has never previously referred to himself as being “bisexual” only making claims to be homosexual.
The applicant responded to the Tribunal’s s.424A letter as follows: “The email and screenshot send to me..I am very sorry because i have no legal advice..i cant respond and comment on that..Thanks”.
The Tribunal does not, in the overall circumstances, accept the applicant’s evidence that he is homosexual or bisexual, or that his family in Sierra Leone is in any danger for political reasons or as a consequence of their relationship to him. The Tribunal gives little weight to the applicant’s evidence, as he has not been straightforward in several material aspects of his evidence. The applicant did not, at any point, mention his relationship with his child’s mother, nor did he mention that he had a child. The Tribunal considers that this is because this evidence demonstrates that the applicant has had a relationship with a woman since arriving in Australia, which he knew would cast doubts on his claims to require protection. Quite bluntly, the Tribunal finds that the applicant has been untruthful.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Bridget Cullen
MemberATTACHMENT - 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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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