1820125 (Refugee)

[2022] AATA 4749

1820125 (Refugee) [2022] AATA 4749 (29 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820125

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Gabrielle Cullen

DATE:29 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 29 September 2022 at 1:10pm

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion – All People Congress supporter – campaigned along with uncle – uncle’s death after victory of opposition party – fear of harm from opposition party – credibility issues – inconsistent evidence – referred for Ministerial intervention – Australian citizen daughter – payment of child support – serious, ongoing and irreversible hardship to daughter if applicant removed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 417, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 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 is a citizen of Sierra Leone, claims to fear return because the Sierra Leone People’s Party (SLPP) will harm and kill him due to his association with the All Peoples Congress (APC). He claims his adopted uncle, [Uncle A] (also referred to as his uncle) with whom he lived was heavily involved with the APC and as a result was attacked and killed. He also claims his house was burned down. The applicant also claims he was involved in campaigning for the APC in the lead up to the election before he travelled to Australia as an athlete at the 2018 Commonwealth Games. The applicant claims his friends have warned him not to return because it will not be safe for him.

3. The applicant arrived in Australia on a subclass 408 visa [in] March 2018  as a member of  Sierra Leone’s [Sport 1] team to compete at the 2018 Commonwealth Games in the Gold Coast. He applied for a protection visa on 9 May 2018.

4. On 28 May 2018 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

5. The delegate refused to grant the visa on 5 July 2018. The delegate did not accept the applicant is or was a prominent APC supporter or that he has been imputed with the political opinion of his uncle, [Uncle A],  due to his uncle’s activities with the APC. The delegate did not accept the applicant would face a real chance of serious harm or real risk of significant harm on return to Sierra Leone.

6. The applicant applied to the Tribunal on 11 July 2018 and attached the decision of the Department.

7. The applicant appeared before the Tribunal on 29 August 2021 to give evidence and present arguments and, where relevant, the evidence from this hearing appears in this decision. The applicant indicated he did not require an interpreter and had not requested one before the Tribunal. His partner since 2020, [Ms B], gave evidence in person. At the request of the applicant the Tribunal telephoned [Mr C] in Sierra Leone, who he claims was [a Minister] under the former APC Government and is now [an official] of the Sierra Leone [Sport 1] Federation. The Tribunal also contacted [Mr D] at the request of the applicant, who was his [Sport 1] [team mate] at the 2018 Commonwealth Games. He indicated he was at work and could not speak and the applicant agreed that [Mr D] would submit a statement to the Tribunal instead.

8. The applicant was given until 7 September 2022 to provide any further evidence including evidence of his social, emotional and financial  support of his Australian born daughter with regard to a claim for Ministerial Intervention and responses commenting or responding in writing to any of the s.424AA matters raised.

9. The issues to be considered in this case are as follows:

   ·Is the applicant credible as to his claims?

   ·Does the applicant have a well-founded fear of persecution in relation to Sierra Leone and meet the refugee protection provisions of the Act?

   ·Does he meet the protection obligations under the complementary protection provisions of the Act?

   ·Should there be a referral to the Minister for his intervention?

   Criteria for a protection visa

10. The relevant criteria for a protection visa are outlined in the attachment to this decision.

    CONSIDERATION OF Claims and evidence

11. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:

    ·The applicant’s protection visa application dated 9 May 2018, identity documents and claims outlined in the application.

    ·Applicant’s statutory declarations dated 22 May 2018, 18 August 2022 and statement referred to as Annexure E received 18 August 2022.

    ·Oral evidence of the applicant provided at the Department interview on 28 May 2018 and Tribunal hearing held on 29 August 2022, as well evidence from the witnesses [Ms B], [Mr C] and [Mr D].

    ·Certificate of Merit awarded to the applicant from the Commonwealth Games Federation God Coast 2018.

    ·Commonwealth Games Accreditation Pass.

    ·Email dated 19 April 2018 with a screenshot of an article by [a journalist] titled ‘[deleted]’ dated 10 April 2018. The article refers to election violence in Kemena between supporters of the SLPP and APC and particularly that the applicant’s adopted uncle, [Uncle A] house was set ablaze. It notes that [Uncle A] and his two nephews, the applicant and [Mr D] were in the frontline campaigning for the APC.

    ·On 28 October 2019 the applicant submitted an email stating he has a new daughter [born] on [date] in Queensland. The attached Birth Certificate for the child is dated [date] and notes the applicant as her father.

    ·Photographs of the applicant’s APC t-shirt.

    ·Photographs of the applicant, [Mr D] and [Uncle A] taken 15 May 2014.

    ·Photographs of people claimed to be injured in riots after the 2018 election, including a photograph of a bloodied person wearing an APC t-shirt and photographs claiming to be of [Uncle A] on the ground with injuries, although his face cannot be seen.

    ·Links to News Reports from Sierra Leone from 2018-2022 as to political infighting between the SLPP and APC as follows.

    2018

    oThe Sierra Leone Election Triggers Political Violence (acleddata.com) . The article discusses the increase in incidents of violence between the SLPP and APC from Janaury 2017 to March 2018.

    oSierra Leone : Riots Erupt in Freetown and Kenema as SLPP supporters go on the rampage – Cocorioko dated 5 April 2018. This article refers to market stall  in Freetown being destroyed by members of the SLPP. The comments refer to the police and APC supporters in Kemena. The YouTube video is not in English.

    2019

    ohttps://theorganiser.net/world/110-apc-blasts-slaj-for-falsely-accusing-apc-of-the-death-threatagainst-bbc-reporter

    ohttps://

    ohttps://

    2020

    ohttps://

    ohttp://cocorioko.net/blood-thirsty-slpp-supporters-attack-apc-party-office-injuring-many/

    2021

    ohttp://

    ohttps://

    ohttp://

    2022

    ohttps://youtu.be/3ZkfMPXVoJw

    ohttps://youtu.be/GDlo3jeW72E

    ohttps://youtu.be/j_Tcz0dobPU

    ohttps://youtu.be/M-MTVuiaKXQ

    ohttps://youtu.be/5nRqI0WGhGk

    ohttps://youtu.be/iJXSgYtl4u8

    ohttps://youtu.be/Vntzii6IdPc

    ohttps://youtu.be/DN4EfsUO3wg

    ohttps://amp.cnn.com/cnn/2022/08/10/africa/sierra-leone-protests-intl/index.html

    ohttps://

    ohttps://

    ohttps://

    ohttps://

    ohttps://nationalpost.com/pmn/news-pmn/sierra-leone-in-near-total-internet-shutdownamid-anti-government-protests-netblocks

    ohttps://kfgo.com/2022/08/10/two-police-officers-one-civilian-dead-in-sierra-leoneprotests-say-mortuary-staff/

    ohttps://amp.dw.com/en/sierra-leone-curfew-imposed-after-deadly-protests/a-62771748

    ohttps:// to reports from Human Rights Organisations with notes from the applicant as to the relevance of these reports as outlined below.

    oAmnesty International reports dated 2021 and 2022 noting the police use excessive force against protestors.

    oHuman Rights Commission Sierra Leone. The applicant notes that this organisation has press releases since 2017 which prove how human rights are not respected.  Union. The applicant notes that in the run-up to the presidential and parliamentary elections planned for mid-2023, there is high political polarisation and increasing tensions between the ruling SLPP and opposition. APC. Nations. The applicant notes Sierra Leone must respect human rights law, says UN expert 24 – Sierra Leone Country Report BTI which notes that

    Fighting involving edged weapons and stone throwing between rival supporters and vandalism or arson attacks against party-affiliated property and polling centres are likely to occur during national election and by-election periods. Hotspots are currently the districts of Western Area, Kono, Koinadugu, and Port Loko. Protests by opposition All People's Congress party supporters outside the Supreme Court and party headquarters in the capital, Freetown, as well as in former president Koroma’s hometown of Makeni, took place in 2019 and 2020 in response to court judgments against and prosecutions targeting senior party officials. Armed police known as the Operational Support Division typically respond with the undisciplined use of lethal force.

    oBTI BTI 2022 Sierra Leone Country Report: BTI 2022 (bti-project.org) The report notes that antagonism between the APC and SLPP led to violent clashes in the run up to the March 2018 election and notes there have been sporadic clashes between APC and SLPP supporters and refers to a number of incidents in 2020. The report notes the armed wing of the SLPP, the Operational Support Division (OSD), hs been repeatedly accused of violating human rights and refers to a mining company who used them to crack down on local communities.

    oWikipedia – Human Rights in Sierra Leone - Wikipedia referring to human rights issues pre 2015

    oBBC BBC confirms the Assassination of APC's Hassan Dumbuya aka Evangelist Samson on Aug 14th 2022. - YouTube noting the Assassination of APC's Hassan Dumbuya aka Evangelist Samson on Aug 14th 2022.

    ·Affidavit dated 12 January 2022 from [Mr F], [an official] of the [Sport 1] Federation of Sierra Leone, in support of the applicant. He notes that the applicant was [a member] of the [Sport 1] team at the 2018 Commonwealth Games and that the applicant still maintained ties with his uncle, [Uncle A], a strong political figure with the then ruling APC. [Mr F] notes the applicant often volunteered at political rallies and meetings with the distribution of political merchandise. He notes that following the elections there was a purge in the South Eastern District including Kenema and that lives and properties of opposition members were pillaged and plundered and that the applicant’s uncle was one such victim. He notes that their federation received verified reports from [Police officer G] that the applicant’s home was pillaged and burnt down with his uncle killed in the process. He notes political violence has been at an all-time high.

    ·Letter of recommendation dated 2 August 2022 from [a] Coordinator, [Organisation 1] supporting his application for permanent residence.

    ·Letter of recommendation dated 12 August 2022 from [named person], [Sport 1 NSW][supporting] his application for permanent  residence

    ·Affidavit dated [January] 2022 from [the] District Chairman of the APC. He claims he was the District Chairman of the APC from 2015 to April 2022 and that he is writing to support the applicant’s protection application. He notes that he knows the applicant through his late uncle, [Uncle A] who was a staunch member of the APC and grassroots mobiliser in the Eastern Region of Sierra Leone. He notes he is aware the applicant lived with his uncle and rendered services to the party through his uncle. He attests that [Uncle A] was killed by marauding youths of the current ruling party following the April 2018 polls that ushered the SLPP to power. He submits that [Uncle A] was an easy target for those people who vowed to eliminate all forms of opposition within the region. He submits that he is also aware of vows made to eliminate  known and existing family members should they endeavour to return to claim possessions or property in Kenema. He submits that specific references were made against the applicant and his “brother” [Mr D] who lived with [Uncle A] before travelling to the Commonwealth Games.

    ·Letter of recommendation dated 2 August 2022 from [a] Mentor Coach, [University 1] [Sport 1] Club.

    ·Post-hearing submissions including

    oStatutory declaration dated 1 September 2022 by [Ms B], the applicant’s current partner noting the following.

    That I am in a romantic relationship with [the applicant] since 7th September 2020 and we have been living together since 21st November 2020.

    That [the applicant] has a daughter which I have met and spent time with (please refer to the attached files which marked as ‘A’.

    That [the applicant] and I have spent last Christmas 2021-2022 in Brisbane visiting his daughter and spending our two weeks holiday with her (please refer to the attached filed which marked as ‘A’).

    That [the applicant] calls his daughter almost every day through Facetime.

    That [the applicant] is a caring father and he always has his daughter in his thoughts and prayers.

    That [the applicant] and I are planning to have his daughter this Christmas 2022 for at least one week in our house in Sydney.

    oApplicant’s Statutory Declaration dated 1 September 2022 including the following evidence as to his relationship with his daughter

    That I have an [Australian] [age] [daughter] (please refer to the attached files which marked as ‘A’) and I was there when she was born (please refer to the attached files which marked as ‘B’).

    That I am a paying my monthly child support since she was born (please refer to the attached files which marked as ‘C’) and I visit her anytime that I have 4 days off or holidays (please refer to the attached files which marked as ‘D’).

    That I am a caring father I am supporting and helping the mother of my child as much as I can (please refer to the attached files which marked as ‘E’).

    That I call my daughter every day using facetime so she can see me and we can talk (please refer to the attached files which marked as ‘F’).

    That I have opened a bank account in 2020 for my daughter where I am saving $20 weekly (please refer to the attached files which marked as ‘G’.

    That I will visit her [for] her birthday and I will spend two weeks with my daughter.

    That I love my daughter so deeply and I want to be part of her life as much as I can. She is my everything.

    oStatutory Declaration dated 31 August 2022 by [Ms E], the applicant’s daughter’s mother as follows.

    [The applicant] and myself have a soon to be [age] years old [daughter], she was born on [date]. [The applicant] has an extremely close relationship with his daughter. [The applicant] travels to Queensland every six weeks to visit [his daughter] when he has his four days off from work. [The applicant] visits every six weeks due to his busy work schedule. [The applicant] always provides for his daughter plus pays child support every month and has never had an issue doing so, [the applicant] always tries his very best with raising [his daughter] and is there for his daughter 24/7 no matter what time of day or night [the applicant] is always there regardless of anything. not only Is [the applicant] there for our daughter he is also there for myself too. [His daughter] is his number one! I believe [the applicant] is a fantastic father to our daughter as [she] is absolutely lost without her father most days as this is why both [the applicant] and [his daughter] video call each other every single day and some days the video calls can last nearly all day, [his daughter] also loves to take screenshots her father when they are on a video call so she can later look back at the photos she took of her daddy as she likes to say, those screenshots are the highlight of our daughters day. I also have a younger [daughter], she absolutely loves her [Uncle], so in this house we have a Daddy for [his daughter] and an Uncle [for] [my younger daughter]. We have such a fantastic Co-parenting system and have had this routine for well over two years now. We have learnt that no amount of distance between us will ever keep us from co-parenting our daughter [and] now that we call Queensland home [the applicant] makes the most amazing efforts with us all. I wish [the applicant] nothing but the best in life and l look forward to many more years co-parenting our daughter together.

    oStatutory Declaration by [Mr D] dated 1 September 2022 as to the applicant’s and his claims.

    oQueensland Birth Certificate of the applicant’s daughter born on [date] showing the applicant is her father and [Ms E] is her mother

    oPhotographs of the applicant and [Ms E] at the birth of their daughter.

    oEvidence of Child Support Payment history by the applicant from 29 August 2021 to 29 August 2022 of [amount] per month.

    oPhotographs from May 2020, October 2020, January 2021, February 2021, December 2021, April-May 2022 evidencing the close relationship and visits between the applicant and his daughter.

    oEvidence of daily Facetime calls to his daughter by the applicant, through her mother.

    oCommonwealth Bank Account evidencing weekly transfer of $20 payments from 31 August 2021 to February 2022 for his daughter.

    ·DFAT Thematic Report – Economic Community of West Africa dated 3 December 2020.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

1. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

   The applicant’s claims

2. The applicant answered questions in his protection visa application as follows:

   76. Why did you leave that country?

   I left Sierra Leone to participate in the Commonwealth Games in Australia. A run-off election happened in Sierra Leone while I was in Australia and the party (All People Congress) that my uncle supported lost. I helped my uncle in promoting our party. Uncle left the place because he was attacked, and his house was burnt down after the election and I believe that I will be harmed if I return because I had lived in the same family home and supported the uncle during the election. 

   77. What do you think will happen if you return to that country

   The people supporting the party SLPP in power now will harm him and kill me. My uncle was attacked and my house was burned down. I was warned by friends not to return because I will not be safe.  

   78. Did you experience harm in that country

   No

   I was safe before I left Sierra Leone because the party that I and my uncle supported were in power.

   79. Did you seek help within the country after the harm?

   I have not returned to Sierra Leone after the Commonwealth Games because I am afraid for my safety.

   80. Did you move or try to move to another part of that country to seek safety?

   I have not returned to Sierra Leone after the Commonwealth Games because I am afraid for my safety.

   81. Do you think you will be harmed or mistreated if you return to that country?

   My uncle was badly beaten and tour house was burned down. I believe that I will be physically harmed or even killed if I return to Sierra leone. The people who would harm me are supporters of the party in power (SLPP)  as I am a supporter of the party that lost the election.

   82. Do you think the authorities of that country will protect you if you go back?

   The SLPP are unable to control their supporters and stop the violence.

   83: Do you think you would be able to relocate within that country to an area where you would not be harmed? No.

   The violence is present in all of Sierra Leone. I would not be safe wherever I am. In other countries like ECOWAS countries, I feel that I will not be safe because I am a national player, and  people in those countries would identify me and I will be persecuted there as well.

3. The applicant also submitted to the Department the following statutory declaration dated 22 May 2018 as follows.

   I fear that if I were to be forced to return to Sierra Leone I will be seriously harmed.

   My background

   I was born on [date] in Freetown in the Western Area of Sierra Leone. I am Sierra Leonean by citizenship. I grew up in the Freetown in Sierra Leone.

   For much of my childhood, I lived with my (non-biological) uncle, [Uncle A] in [the] Eastern Region. I started living with my uncle when I was [age]. I used to live with my father, before he passed away in December 2014, after which I lived with my uncle. My father passed away from a sickness, wasn't treated because of fear of Ebola. My father's name was [deleted].

   I am a professional [Sport 1] player, having competed for Sierra Leone at the international level in [Country 1], [Country 2] and [Country 3]. I started playing [Sport 1] when I was small. I used to watch it and had a love for the game. I started playing the game when I grew up. In 2013, I started representing my country and Under 19 World Championship qualification finals were hosted in Sierra Leone. The team qualified to go to the competition in [Country 1]. In 2014, we went and played another completion in [Country 4]. We won. We qualified to go representing SL in [Country 5]. Unfortunately, we had the Ebola outbreak and Sierra Leone was not able compete in [Country 5]. In 2014, we were qualified to go to [Country 2]. In 2015, there was a continental competition in Africa held in [Country 3]. We went to play there as well. We passed second stage and we qualified, but ultimately [another country] was asked to go. In 2017, we went to [Country 6], where we were qualified as one of the four African countries to go to [Country 7]. In 2018, there was a competition for all Commonwealth countries in Africa. It was held in Sierra Leone. They were looking for one country to represent at the Gold Coast Commonwealth Games. We were qualified and that is why we came to Australia.

   My family background

   I don't know much about my Mum because I grew up with my Dad. My Mum and Dad divorced when I was [age] and my Mum left after that. I only know my dad. My Mum passed away in one of the provinces, and my Dad heard about it and told me in 2010 when I was [age] years old. My mother's name [deleted].

   I have one sibling, namely one older brother, with whom I am no longer in contact as he left home when I was very young. I don't know where he is or old how he is. [deleted].

   The only family I know in Sierra Leone is my guardian, [Uncle A].

   Coming to Australia

   I left Sierra Leone on March 25, 2018 to participate in the Commonwealth Games on the Gold Coast, Queensland. During the time I was in Australia, a presidential run-off election took place in Sierra Leone on 27 March 2018, which removed the All People's Congress (APC) from power.

   My uncle, [Uncle A], was an outspoken supporter of this party. My uncle is a prominent man in the APC party. My uncle was committed to the party. He had been with the party for a while, at least from when I first met him in 2014, and everybody loved him; he was very friendly. He used to sharing the party T-shirts with everyone in order to support the party in the election. He would make these T-shirts and hats on his own and talk to people. He never thought the APC would not win the election.

   In the lead up to the election, I assisted my uncle in promoting the APC. I did this primarily by handing out t-shirts, hats and other merchandise. During the campaign, we would go around with him and stand by his side, talking about all the APC has done in terms of development. It was a real surprise that we did not win the election.

   After the election, my uncle was forced to leave his home, as he was physically attacked by supporters of the rival (winning) party, the Sierra Leone People's Party (SLPP). Rocks were thrown at his house. These supporters also set fire to his house, which resulted it being burnt down. This is the same house that I lived in back home in Sierra Leone before coming to Australia.

   My uncle was living in a place that was a stronghold of the SLPP. When the result was announced, because the people knew him personally and knew where he lived, they beat him up and burnt the house.

   Because I am here, a few of my friends have informed me of what happened through [social media]. Even during the GC games, we were really stressed about everything that was going on in Sierra Leone. I don't know my uncle's whereabouts because all I know is from the news and small reports. I know rocks were thrown at the house and the how was burnt down, but I don't know what happened to him or his wife.

   What I fear would happen if I was forced to return to Sierra Leone

   I cannot return to Sierra Leone, as I believe I will be subjected to the same level of harm that my uncle experienced. Many of the locals in my home city know that I assisted my uncle in supporting the APC. As a result, the supporters of the SLPP will target me upon my return.

   Looking at my uncle’s fate and other supporters, I know after that result because this party (SLPP) that won has been fighting for a long time to be in power. They will have lots they want to do back to his party. My only hope was my uncle. Even if he is alive, he himself is a vulnerable now because he lost the election, lost home and has suffered physical injuries and mental trauma. I know if I go back, people know that I supported APC party, they will be hunting us and I am fearful about my safety and well being.

   I have been warned by friends who are still in Sierra Leone not to return. Some have been attacked, and one was badly beaten in a fight. I have been told that it would not be safe for me to return.

   These people [involving with SLPP] have been aggressive But when they are not in government, they could not do anything, because we were protected. They can't influence policy and army. But we knew if SLPP come to power, their supporter got power and protection so they will be very aggressive to take revenge against us. They think they can do anything to the person supporting the APC.

   The security now is not effectively working for the people because it seems chaotic to us. As a youth and a supporter of APC, I know the supporter of SLPP have been frustrated for so long because they had been out of power. Even they have been very, very aggressive before when they were in power but they could not harm us because we were protected. Some of those SLPP are former military people (such as the president now). I am scared of my life from them because they know as to how they can torture people.

   Why I cannot relocate to other parts of Sierra Leone

   I cannot relocate as the SLPP is now the national government. Their supporters can act without repercussions in any part of the country. The supporters of SLPP can identified me no matter where I go.

   Sierra Leone can't be safe for people like me because security is not enough. When I am sleeping, I will have nightmares about people that might harm me. That's why I am really afraid and if I go back I might be killed or harmed. Also, I am unlikely to be able to play [Sport 1].

   As a professional athlete competing at the national level, it is very likely that I will be identified and therefore targeted wherever I go. Members of the SLPP are all over, because they are the ruling party and fill the government positions.

   Why I believe the authorities in my home country and/or my country of former habitual residence will not protect me if I go back:

   The victory of the SLPP means that many of their supporters have become more active in their violence and intimidation, and believe they can act with impunity to their enemy like me.

   Prior to the election, when the APC was in power, it would have been safe for me to return.

   Now, the SLPP is unable to control their supporters, and are unable to prevent the violence from taking place. The party members have been attacking the police, beating them up, some have lost their life. Me, as a civilian cannot defend myself. The security cannot provide the safety, especially to me who is the supporter of APC.

   I can remember one incident happening in Kanema. I saw how they treated the police. It happened also in Freetown. Most of this on the media and Facebook, it is all over how these party members treat the security people. If those police are not safe, how can they provide safety to other people.

   And I make this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

4. At the Department interview held on 28 May 2018 the applicant reiterated his claim to fear return on account of his and his adopted uncle’s political activities. He indicated he was living with [Mr D] at the time of the interview and he  had travelled to Australia with [Mr D] to represent Sierra Leone at the Commonwealth Games in [Sport 1]. He indicated his father had died and he began living with his adopted uncle in 2014. He said [Mr D] also lived with him and his adopted uncle in Sierra Leone. He said he has a brother but they are not in touch. As to why he fears return to Sierra Leone, he said his uncle was a supporter of the APC and he, the applicant. also supported the same party. He said when the results of the election were announced that the opposition party SLPP had won he was in Australia and as soon as the announcement was made the SLPP members went to his uncle’s home, beat him and burned the house. He said he has had news that his life is also at risk. He said he found out about this around the time of the [deleted] match versus [stated country]. He said he was told by a friend but despite repeated questioning could not name the person who had told him via [social media] what had happened to his uncle. He said and confirmed  no one knows where his uncle is and they do not know whether he is alive.  He said his friend saw the SLPP go in and attack his uncle’s house. He said he last talked to his uncle on 5 April 2018. As to why his uncle was targeted after the election, he said his uncle bough t-shirts and had then stencilled for the APC and would distribute them. He said his uncle did not have a position in the party but hoped when they won the election, he would be given one. He said he did not join the APC but he was planning to on return to Sierra Leone. He said he bought some of the t-shirts his uncle made with him to Australia and was planning to wear them on return to Sierra Leone as he thought the APC would win.  He confirmed the t-shirts where with him in Australia and the delegate asked him to send a photo within 7 days of the interview; however, the applicant did not.

5. As to what will happen to the applicant on return; he said his uncle was a senior supporter and he was living with him and distributing the APC t-shirts as well. He claims if he returns he will be harmed and killed and he referred to what has happened to his uncle. As to his activities he said he would hand out the t-shirts and people would listen to him talk about the APC and the good things they have done. He outlined what he said to people as to why they should vote for the APC and referred to the construction of roads, building markets, improving water supply and electricity supply.

6. When asked if he ever came across SLPP people while campaigning; he said they did when they went around and met the groups and he said they would insult them and threaten them saying you wait until the elections are over. He said nothing actually happened and noted that at that time the APC was in power.

7. When asked if he had anything to add he answered in the negative.

8. The applicant made the following written submissions to the Tribunal on 18 August 2022:

   ·That his previous statement was in error that [Uncle A] had a wife. He notes that at the time he and [Mr D] lived with his uncle he never had a wife or girlfriend and his previous declaration was written by workers from the Refugee and Immigration Legal Services. He submits that he did not write, speak or understand English properly at the time.

   ·He writes:

   That I was and am, a strong supporter of the All People Congress Party (APC). As a sportsman, I cannot be associated with politicians publicly because sponsorships and professional opportunities can be affected negatively. However, I can provide African witnesses who saw me helping my [Uncle A] during the campaign, participating in APC meetings and talking about the good things that the party has done. One of them is [Mr C]who was [an APC Minister ] in the previous government and is now [an official] of the Sierra Leone [Sport 1] Federation. Also, I have delivered to this tribunal two affidavits which prove this support from my [Uncle A] and myself (please refer to the attached files which marked as 'A'). Finally, [Mr D] can testify that what I have said above is true and correct.

   ·Regarding the threats he experienced he cannot present any physical evidence as they were all verbal in nature; however, he can provide African witnesses and [Mr D] can confirm they took place.

   ·It is difficult is difficult to obtain evidence form Sierra Leone due to its poverty and lack of communication but the pictures he had sent to the Tribunal of [Uncle A]’s death are the only evidence he has. He also refers to affidavits submitted and outlined above.

   ·During his interview on 28 May 2018, he could not remember the name of the person who communicated to him the terrible incident relating to his uncle that occurred in April 2018. He claims he was very nervous at the time and his name is [Mr H] who was not a close friend but a member of the sporting community [social media] chat. He claims between April 2018 and June 2018 he tried to contact his uncle and [Mr H] but both telephone numbers were unavailable. He claims he asked the Sporting Community [social media] chat about them but no one could give him an answer

   ·In June 2018 [Mr H] again contacted him and told him that his uncle was killed and sent him pictures of his uncle’s death. He claims after this he called [Mr C], who is [an official] of the Sierra Leone [Sport 1] Federation who confirmed what had happened to his uncle.

   ·He also notes the following:

   That as a successful Sierra Leonean sportsman I was part of a team that was the second-best [Sport 1] team in the whole of Africa in 2018. As such, I had a promising future which included attending the Olympic Games in Japan and other high-profile events. At the time, I had never planned to stay in Australia so all of my belongings were in Sierra Leone and I had only brought my APC t-shirt which I thought I would wear on my arrival to my country. However, the critical situation in my country forced me to apply for the Australian protection visa which has radically altered my career and life trajectory. Mainly that, I cannot achieve my dream to become a professional [Sport 1] player and instead, I [doing a certain line of work]. Having said this, I am extraordinarily grateful that my life is no longer at risk and I have freedom, the greatest gift of all.

   ·Currently Sierra Leone is preparing for a new election so the situation is again unstable.

   ·He has [a] daughter who is [age] who he loves dearly and a respectable job [with] [Organisation 1]. He now has a wonderful partner and daughter and great job.

9. At the Tribunal hearing held on 29 August 2022 when asked as to why he fears return, the applicant reiterated his claim to fear return on account of his uncle’s strong involvement with the APC and his involvement distributing APC T-shirts and campaigning for the APC prior to the 7 March 2018 election.

10. As to the witness, [Ms B], both she and the applicant confirmed they have been living together since 2020. [Ms B] advised she holds a student visa but has applied for a skilled visa which is before the Department.

11. The applicant indicated he travelled to Australia, leaving Sierra Leone on 25 March 2018 and arriving on 27 March 2018 to represent Sierra Leone in the [Sport 1] team with [Mr D].

12. He confirmed he has no family in Sierra Leone, apart from a brother with whom he is no longer in contact. He indicated he began to live with his uncle, [Uncle A] in December 2014 after his father had passed away. He said [Uncle A] had been watching them play [Sport 1] and then around December 2014 offered both he and [Mr D] to live with him at his home in Kenema and to support them. He said [Mr D] lived with him with his late father from 2013 and then they both moved to live with [Uncle A] in December 2014.

13. The Tribunal asked him detail about [Uncle A]. He said [Uncle A]  worked as a [Occupation 1], and that was his main job [and] he did that job on the weekdays. He said [Uncle A]’s [work place] was close to the APC Office and he would go there after he finished work. He said while neither he nor [Mr D] worked with him as a [Occupation 1], they both knew he worked as a [Occupation 1].

14. As to [Uncle A]’s political role, he said he was a member of the youth wing, not a leader as there was no leader. He said [Uncle A] worked with the District Chairman of the [APC].

15. As to the applicant’s involvement with the APC, he said the three of them, he, [Mr D] and [Uncle A] around August/September 2017 went to an APC meeting in Freetown to decide matters relating to the Convention to elect the presidential candidate. He said this Convention was held in October 2017 where Dr Samura Kamara was elected as the candidate. He said he and [Mr D] did not go to this Convention held in October 2017 only [Uncle A] went.

1. The applicant said from January 2018 until the election on 7 March 2018, he, together with [Mr D] and [Uncle A] would distribute the APC t-shirts and campaign for the APC. He said as high profile sportsmen they, [Mr D] and himself, were influential. He said they would tell the people why they should vote for the APC. As to when they did this; he said only on weekends during the above-mentioned period but not every weekend as [Uncle A] was sometimes dealing with APC matters at his home and he referred to the Chairman of the APC visiting his uncle. He confirmed that he would only campaign with [Mr D] and [Uncle A] and they never went without [Uncle A] to campaign and distribute the APC t-shirts and it was only on weekends that they went. He said during the week [Uncle A] would work [in] his regular job, then attend the APC office later. He said he was not with him during those times so maybe [Uncle A] also  campaigned on the weekdays, Monday to Friday.

2. The Tribunal asked the applicant about the election, including both the presidential and parliamentary elections which were held at the same time. He confirmed he voted in the 7 March 2018 elections. When asked which constituency he was in for the parliamentary elections; he said he did not know nor could he name the APC candidate for his constituency or any of them in the Kenema area. He said he did not know the number of APC candidates in his area of Kenema. The Tribunal raised with the applicant via s.424AA the numbers of the constituencies and the name of the APC candidates in them at the 2018 parliamentary elections in the Kenema area. It outlined the relevance of the information and raised as of concern his lack of knowledge as to the APC parliamentary candidates in the Kenema area. He said he was only involved in electing the Presidential candidate and did not vote for any candidate to be an MP in his area. It questioned if he loved the party why he did not vote in the parliamentary elections, and only voted for the president. He also said he would be involved in the APC if he returned to Sierra Leone.

3. He said he was not a member of the APC and said this was because he was a high-profile sportsman and when asked why, he said becoming a member could have hurt his sporting career. The Tribunal questioned this when it is his claim as a high-profile sportsman he was publicly campaigning for the APC. He said he was only involved in supporting his uncle . The Tribunal asked why he was involved in the distribution of t-shirts  and telling people  to vote for the APC: and he said both as he loves the party and to support his uncle.

4. He said he only voted in the 7 March 2018 elections, then he travelled to Australia. He said there were then runoff elections where the results were released in April 2018. He said the last time he spoke to his uncle was on 5 April 2018 after the runoff election results had been announced. He said this was on the day of the [deleted] game against Australia. He said 12 hours later when he had finished the [deleted] game, he tried to call his uncle but could not reach him. He said this is when the incident happened to his uncle and he confirmed he found out his uncle had been attacked on 5 April 2018. The Tribunal questioned this as independent information indicates all the [Sport 1]  2018 Commonwealth Games [deleted] matches were held on [date] April 2018 and the  [Sport 1] [deleted] games began on [date] April 2018. It raised with him that if he received the information as to his uncle on 5 April 2018 that would have been before the [deleted] games not the [deleted].

5. The Tribunal asked him about the news article submitted to the Department [titled] ‘[deleted]’. The applicant said before he received the article, he had heard the SLPP had won the election and tried to ring his uncle but could not reach him. He said he came across [Mr H] on their sporting [social media] chat who told him that the SLPP after winning the election went to his uncle’s house, his uncle came out, they beat him then burned down his house. He said [Mr H] said his uncle was nowhere to be found. He said he continued to ask around for more information but could find no information, then he received the article on 6 or 7 April. The Tribunal questioned this as the article is dated 10 April 2018. He said and confirmed that on 20 June 2018 he found out his uncle was not alive.

6. The Tribunal asked whether he was still living with [Mr D] on 20 June 2018, being the time he received the news his uncle, [Uncle A] was no longer alive. He answered in the affirmative and said [Mr D] was also concerned about hs uncle. Via the process outlined in s.424AA the Tribunal raised with the applicant that [Mr D] indicated at his Department interview on 26 June 2018 that he did not know the whereabouts of his adopted uncle, [Uncle A] or whether he was alive. The Tribunal also raised as of concern why at the Department interview he was unable to advise who told him about the incident with his uncle but he could today. It questioned the credibility of his claims.

7. The Tribunal asked the applicant why he believes he will be harmed or is at a risk of harm on his return to Sierra Leone. He referred to verbal threats he received from the SLPP when distributing the APC t-shirts and campaigning for the APC with is uncle. He said they said that when they came to power they would eliminate them. As to when they were verbally threatened by the SLPP he said every weekend when they were distributing the t-shirts. The Tribunal asked what they threatened them with and he said that they said that “you think you are in control but when we are in power we will destroy your lives and kill you”. He said it was very serious. The Tribunal questioned why then he did not mention this detail in his application for the visa, including the attached statement and at the Department interview. It outlined what he said at the Department interview with regard to the threats and questioned whether he is a credible witness as to the threats.

8. The Tribunal raised a number of concerns as to the credibility of the applicant’s claims, including inconsistencies with the evidence of [Mr D] via s.424AA, some which have been outlined above and where relevant these have been outlined below. It questioned whether he was ever involved in the APC in the manner claimed, he had faced the difficulties he claims, his uncle [Uncle A] faced the difficulties he claims, whether his uncle was ever involved with the APC and whether he fears return for the reasons he claims. Where relevant these concerns have been outlined below.

9. The Tribunal referred to the newspaper article, documents, affidavit and additional evidence he submitted and questioned the weight to be placed on these. The concerns are outlined below. It raised with him that information indicates a prevalence of document fraud in Sierra Leone, including in the writing of newspaper articles. It raised with him via s.424AA that it could find no other articles written by the journalist[referred] to in the article submitted to the Department dated 10 April 2018. It raised with him independent country information of reports into the Kenema difficulties on 5 April 2018 and that while they mentioned the burning of the youth leader’s home and of the police station, there was no reference to the applicant’s uncle [Uncle A], which it may expect if true.

10. The applicant confirmed that the people who wrote the letters from [Sport 1] NSW, [University 1] and [Organisation 1] had only know the applicant following his arrival in Australia

11. The Tribunal also raised with the applicant independent information as to the treatment of APC members and followers and questioned that even if it accepted he was a supporter of the APC whether he would face a real chance of serious harm and/or real risk of significant harm for being a n APC campaigner, activist or follower if he returns.

12. The witness [Ms B] said she did not know the applicant before they met in 2020 and what she knows of his claims in Sierra Leone is what he has told her. She said she has seen his suffering and that he is scared to return. As to why the applicant is scared; she said he told her he had been threatened in the past and that something will happen to him if he returns to Sierra Leone.  She said in her opinion he is a loyal, trustworthy and good man.

13. The Tribunal also spoke by telephone to a man who claimed to be [Mr C], who is [an official] of the Sierra Leone [Sport 1] Organisation and former Minister [prior] to the elections in 2018. [Mr C] confirmed the applicant’s sporting career as a [Sport 1] player as claimed and that he played with [Mr D]. He referred to the death of the applicant’s  uncle and said he had reports from police who went to the area who said his house was torched, and the applicant’s uncle lost his life as he was in his house.  He confirmed this. He said [Uncle A] fled the party office when the APC office was attacked and the mob chased him to his home and he died in the fire. The Tribunal asked why he as a prominent APC supporter can safely live in Sierra Leone and he said he cannot leave as he is  helping the current government into the inquiry into his conduct. He said there is a ban on him travelling and he must report daily to the police . The Tribunal asked if the applicant’s uncle was beaten, he said the details are not clear but he knows he was chased by a mob from the party office and then killed. The Tribunal asked when he realised the applicant’s uncle had been burnt in his home; he said [Police officer G] was beaten as well. The Tribunal asked when he find out the applicant’s uncle had died; he said he cannot say exactly and he said between April or May. He said around 7 April 2018 to May there was so much chaos. The Tribunal asked him to confirm that he was he saying he found out soon after the riot of 5 April that the applicant’s uncle had died and he answered in the affirmative. He said he could not receive confirmation for a while.

14. The Tribunal raised matters of concern from [Mr C]’s evidence with the applicant via s.424AA as outlined below and suggested it may place no weight on his evidence as supporting his claims .

15. The Tribunal also asked the applicant about his daughter. The applicant said she lives in Brisbane and he supports her through child support payments of [amount] per month, regularly visits her approximately every 6 weeks when he has 4 days leave in a row. He said he FaceTime’s her every day, is close to her mother and provides child support of [amount] per month. He was given time to provide further evidence as to the financial and emotional support he provides. He confirmed his daughter is an Australian citizen.

16. When asked if he had anything to add, he indicated he had trust in the Tribunal.

17. In his post hearing statutory declaration, the applicant notes that he received the article submitted to the Department by [a  journalist] titled ‘[deleted]’ some days later after knowing of the riots in Kenema on 5^th April and he found it online. He said he has not created or faked it and does not know the author.

18. [Mr D] in his statutory declaration dated 1 September 2022, received after the hearing, claims that during his Department interview on 26 June 2018 it was his first time dealing with the Australian Government and he was fully worried and deeply concerned about his future. He claims he received the information as to his uncle’s death on 20 June 2018 as the applicant claims, that he was not a member of the APC, because as a sportsman he could not be linked to any party otherwise his sports career could be jeopardised. He claims he was actively involved with the applicant during the pre-campaign in 2018 and joined him in some trips to Freetown for the APC such as in September 2017. He also notes his uncle used to work in a  [certain role] and with the APC, however his main income was from his [job] and that he and the applicant received death threats from SLPP supporters during the time they helped to distribute the APC merchandise.

19. Evidence was also provided as to the applicant’s social, emotional, and financial support of his Australian daughter after the hearing as outlined above.

    Is the applicant credible as to his claims?

20. Having sighted a copy of the applicant’s identity documents, and on the basis of his evidence at hearing, the Tribunal accepts that the applicant is a national of Sierra Leone for the purposes of s.36(2)(a) of the Act. For the purposes of s.36(2)(aa) the Tribunal accepts that Sierra Leone is the receiving country.

21. As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding central aspects of the applicant’s claims and evidence, there are other aspects of his claimed circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts the following:

    ·The applicant was an elite [Sport 1] player who represented his country at the 2018 Gold Coast Commonwealth Games. He currently trains and plays with the NSW team and assists coaching [a] team.

    ·He has an Australian citizen daughter, born [date] in Australia who he is emotionally close to and supports financially including [amount] per month in  child support payments as well provided $20 per week. While he lives in Sydney, he visits his daughter every 6 weeks and facetimes her daily. The Tribunal accepts the submissions of the applicant, his current partner and his daughter’s mother that he and his daughter are extremely close and she relies on him.

22. Notwithstanding the above, for the reasons that follow, the Tribunal does not accept that the applicant is a credible witness as to having faced the difficulties he claims and fearing return for the reasons he claims. It follows the Tribunal does not accept he was ever involved in the APC distributing t-shirts or any merchandise and campaigning  or that he faced any of the difficulties he claims while campaigning for the APC in Sierra Leone or that his uncle ever faced the difficulties he claims due to any involvement with the APC or that he fears return for the reasons he claims. It finds his testimony to be inconsistent as to these claims and is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.

    Involvement in the APC

23. Central to the applicant’s claims as to why he fears return is his claim of involvement with the APC as his uncle [Uncle A], who he was living with in Sierra Leone, was an active supporter of the APC and that he also was and is an ardent supporter of the APC.  He claims he campaigned with his uncle and [Mr D] distributing APC t-shirts and other merchandise created by his uncle and telling people what is good about the APC. However, for the reasons that follow the Tribunal does not accept that he was ever involved in the APC in the manner claimed or undertook any activities for the APC campaigning, distributing t-shirts and other merchandise or undertaking any political activities involved with the APC. This adds to the finding he is not a credible witness.

24. Firstly, despite claiming he was actively involved with [Mr D] in campaigning for the APC in Sierra Leone, their evidence was inconsistent as follows:

    ·At hearing the applicant indicated that together with his uncle and [Mr D] they travelled to Freetown to attend an APC meeting in August/September 2017 to organise the Convention in October 2017 where the APC Presidential candidate would be selected. However, in contrast, as raised with the applicant via s.424AA [Mr D] indicated at his Department interview held on 26 June 2018 that he first became involved in APC politics in Janaury 2018. [Mr D] confirmed that he had never been involved in politics prior to Janaury 2018 at his Department interview.

    ·At hearing the applicant indicated and confirmed that from Janaury 2018 to the election in March 2018 he campaigned in Kenema by distributing the t-shirts and telling people about the APC with [Mr D] and his uncle. He said he only ever campaigned with [Mr D] and his uncle and it happened most weekends except when his uncle stayed at home and then APC people would visit his uncle at their home in Kenema. He confirmed that at those times he and [Mr D] did not campaign or distribute the t-shirts without their uncle. The applicant said it was just him, [Mr D] and his uncle. However, in contrast, as raised via s.424AA, while [Mr D] also said at his Department interview held on 26 June 2018 that they would campaign on weekends in Kenema, as well as some Fridays, in contrast he said sometimes when his uncle went to Freetown they would campaign alone. [Mr D] said when speaking of others campaigning that he was referring to supporters of the party who lived in the neighbourhood, friends and neighbours. In response the applicant said he was involved in politics as claimed and referred to the attached supporting  affidavits from third parties.

25. When these concerns were raised the applicant indicated that he did not know why [Mr D] stated that and that it is true he was there campaigning for the APC. He referred to the affidavits submitted to the Tribunal which confirm his involvement in the APC, which have been considered below. After the hearing, a statutory declaration was  submitted by [Mr D] which indicated that during his interview he was nervous and scared, worried and out of his mind as he was deeply concerned about his future and he stated that he was involved with the applicant in joining him to travel to Freetown for APC meetings in September 2017 but he did not comment on the second concern outlined above except to say that  he actively helped his uncle [Uncle A] campaign.

26. The Tribunal has considered these responses and that nervousness, fear or  any of the reasons both he and [Mr D] have provided explain the above inconsistencies. The Tribunal does not accept that the post-hearing statutory declaration of [Mr D] outweighs the concerns and inconsistencies outlined above.   This is particularly so as the interview with [Mr D] was held only months after the claimed campaigning for the APC and it is of the view if [Mr D] was involved in the September 2017 APC meeting in Freetown he would have stated so at his interview, despite being nervous and scared. The Tribunal is of the view if the applicant campaigned in the manner claimed with [Mr D] they would be consistent as to who they campaigned with and whether they campaigned always with [Uncle A] or sometimes without him.  It therefore does not accept the responses explain the inconsistencies. It adds to the finding the applicant is not a credible witness.

27. Further, the Tribunal views as undermining the applicant’s claim as to his past involvement and any future involvement in the APC his lack of membership of the party. Despite claiming he is an ardent supporter of the APC and this was one of the reasons he campaigned, together with wanting to support his uncle, he indicated that he never became a member of the APC, although he said he was going to on return to Sierra Leone. When the Tribunal questioned why he had never become a member and that it may undermine his claim to be an ardent supporter of the APC, he referred to it not being a good thing for his sporting career to be politically supporting the party and that it may jeopardise his future career. In a statement to the Tribunal, he said  he cannot be identified with politicians publicly because sponsorships and professional opportunities can be affected negatively. However, the Tribunal does not accept this explanation as to why he did not become a member, as his evidence at hearing and to the Department at interview was that he was going door to door publicly campaigning for the party, talking about the APC and its accomplishments. That he was already publicly showing his strong interest in the APC  undermines his reason for not becoming a member. [Mr D] in  his post hearing submission also gave a similar reason for not becoming a member, but for similar reasoning as to that above it does not accept this as overcoming the Tribunal’s concern. The Tribunal views the applicant’s lack of membership of the APC despite claiming to be an ardent supporter to  be significant. It adds to the finding the applicant was never involved in the APC or a supporter in the manner claimed. It adds to the finding he is not a credible witness.

1. Further, the Tribunal views as undermining the applicant’s claim as to his past involvement and any future involvement in the APC and politics, his lack of knowledge of the APC candidates in the Kenema area contesting the parliamentary elections being held at the same time as the Presidential elections and the electoral area he was part of. When asked he said he could not remember any name or the constituency he was part of or the number of APC candidates in the area of Kenema. This is despite claiming to have voted in the 7 March 2018 elections. Information, as raised with the applicant,  indicates that on 7 March 2018 Sierra Leone held elections for the President as well as for members of the parliament and local council.[1] Information indicates that Kenema has 11 constituencies who each vote for a Member of Parliament and are number 011 to 021 as well as a paramount chief.[2] The APC had candidates represented in each of Kenema’s 11 constituencies or electoral areas as follows, as raised with the applicant via s.424AA.

   [1] European Union election Observation Mission; Final Report Republic of Sierra Leone Presidential parliamentary and Local Council Elections 2018 June 2018https:// Members Of Parliament DISTRICT APC Candidates

   
   011-Alpha .D. Koroma
   012-Lansana Brima Sangawulo
   013-Kanneh John Idriss
   014-Gendehmeh Umar (Bob k)
   015-Gandoh Amara .L.
   016-Musa Andrew. J.
   117-Bapa Augusine .S.
   018-Dr Kamanda Murray
   019-Lavalin Lahai .D.
   020-Adama C. Kallon
   021-Anthony Mustapha[3]

   [3] Sierra Network All People’s Congress Parliamentarian Candidates for 7^th March 2018 APC Parliamentarian Candidates For 7th March 2018 National Elections - Sierra Network (snradio.net) >

   When the Tribunal raised its concern as to his lack of knowledge of his electoral area or that he was unable to name any of the APC candidates in his area of Kenema he indicated that he only voted in the Presidential elections. While he was able to name consistent with independent information the 2 Presidential candidates from the APC and SLPP, the Tribunal is of the view if he was campaigning for the APC as claimed and  his uncle was an active supporter who he claims used to talk to him about the party, and that if he was involved as claimed , he would have been able to provide information as to the local APC candidates vying to be Members of Parliament in the 2018 elections, particularly in his electoral area. This is particularly so as the independent information indicates that Parliament, and therefore elected MPs have the power to introduce, make and enact laws in Sierra Leone. In response when the concern was raised the applicant said he did not know the name of his parliamentarian as he voted for the President as he believes his ideology. He indicated  a person could vote for the President, MP, mayor and local council but he just voted for the President as he believes in his manifesto.

2. The Tribunal does not accept this explanation and is of the view if he was involved as claimed, publicly campaigning for the APC from Janaury 2018 to March 2018, an ardent supporter who spoke to the public about why to vote for the APC when distributing the APC t-shirts and merchandise, he would have been able to provide information as to his local electoral area and some information as to the local candidates in Kenema, particularly the one in his electoral area . The Tribunal is also of the view if he was an ardent supporter who loved the party he would have also voted in the parliamentary elections, which were held at the same time and known his local parliamentary member’s name. These matters add to the finding he was not involved in the APC, undertaking the activities for the APC as claimed or a supporter as claimed. It adds to the finding he is not a credible witness.

3. While not solely determinative, the Tribunal views as of concern that the applicant in his statement from May 2018, submitted to the Department, refers to the runoff Presidential elections being held on 27 March 2018. While he was able to indicate there were runoff elections, independent information indicates that while they were originally scheduled to be held on 27 March 2018 they were delayed until on 31 March 2018 due to an injunction by the Supreme Court[4]. Whilst the Tribunal accepts this happened after the applicant departed Sierra Leone for the Commonwealth Games in the Gold Coast it is of the view that if he was a supporter of the APC and campaigned as he claimed he would have been able to note the correct date of the runoff election in his statement to the Department, particularly as it was made only a short time after the elections. The Tribunal notes his claim his statement was written by hs representative and that he does not speak, read or write English although he signed the application form which indicated he does speak, read and write English  . The Tribunal therefore does not accept the reason for the inconsistency is that his former representative inserted the wrong date and he did not know as he cannot speak, read or write English. It adds to the finding the applicant was not involved in the APC in the manner claimed. It adds to the finding he is not a credible witness.

   [Uncle A]’s work

   [4] US Department of State:  Sierra Leone 2018 Human Rights Report ; Oxford Constitutional Law: The 2018 Sierra Leone Presidential Election Oxford Constitutional Law: The 2018 Sierra Leone Presidential Election (ouplaw.com) >

   While not solely determinative, the Tribunal views as of concern the inconsistent evidence between the applicant and [Mr D] as to their uncle’s work. At hearing the applicant indicated both he and [Mr D] had lived with [Uncle A] since December 2014; however, at hearing the applicant indicated [Uncle A] was a [Occupation 1] during the weekdays, although he regularly visited the APC office and [Mr D] indicated, that for work, [Uncle A] worked for the APC and campaigned. When [Mr D] was asked if his uncle did any other work other than for the APC he answered in the negative and said that was all he did as well as coming to the [Sport 1]in the evening.

4. When the concern was raised with the applicant via s.424AA at hearing he said he did not know why [Mr D] did not state that. In a post hearing statutory declaration [Mr D] claimed that his uncle, [Uncle A] used to work in a [certain role] and with the APC party but that his main income came from his [job] and referred to nervousness, fear and not knowing the Australian process as reason for the inconsistency. The Tribunal has considered the responses and that nervousness, fear or any of the reasons both he and [Mr D] have provided  explain the inconsistencies above. The Tribunal does not accept that the post-hearing statutory declaration of [Mr D] outweighs the concerns and inconsistencies outlined above.   The Tribunal has difficulty accepting that nervousness, fear, or any of the reasons put forward by [Mr D] would result in him being unable or forgetting that [Uncle A], who he lived with for a number of years worked in [a certain role] if that was the case or that the applicant and [Mr D] would not be consistent as to their uncle’s work. It adds to the finding the applicant  is not a credible witness.

   Difficulties faced by the applicants [Uncle A] after the election results were announced

5. For the reasons that follow the Tribunal does not accept that the applicant’s uncle faced the difficulties claimed. It adds to the finding the applicant is not a credible witness.

6. Firstly, the applicant claims that his uncle rang him on the day the election results were announced on 5 April 2018, in the morning Australian time, being 4 April 2018 in Sierra Leone to tell him the SLPP had won the election. He said he received the call the day of his [deleted] game versus [stated country] in the 2018 Commonwealth Games. He said that evening, 12 hours later  he was unable to contact his uncle, was looking at his phone for messages and calling people. He said in that 12 hours the incident happened to his uncle. He said and confirmed he received the news that his uncle had been attacked and his house burnt down on 5 April 2018 in Australia. He confirmed this all happened the day he played the [deleted] versus [stated country]. He said he received the article submitted to the Department later around 6 or 7 April 2018. At the Department interview he also stated he heard about his uncle on the day he played the [deleted] match versus [stated country]. However, independent information indicates that all the Commonwealth Games [Sport 1] [deleted] matches were played  on 10 April and on 5 April when he claims he heard of his uncle the [matches] had not even begun as they were first played on 6 April.[5] When the Tribunal raised the information with the applicant, he did not explain the inconsistency. While the Tribunal accepts he may not remember the dates he received the news his uncle had been attacked it is of the view, due to the claimed effect it had on him, that he would know whether it was before the [deleted] match versus [stated country] or prior to the [deleted] games. It is inconsistent that he heard his uncle had been attacked about 12 hours after he spoke to his uncle at the time the election results were announced on 5 April Australian time, if it was at the time of the [deleted] match versus [stated country]. This leads to the Tribunal to find his uncle was not attacked as claimed and adds to the finding the applicant is not a credible witness.

   [5] [Deleted].

7. Further, despite claiming he and [Mr D] were living together until the end of 2018 in Australia and that he, the applicant  found out that his uncle [Uncle A] was dead on 20 June 2018, [Mr D] indicated at his Department interview held after that on 26 June 2018 that he did not know the whereabouts of [Uncle A]. When raised with the applicant via s.424AA and that it undermines the credibility of his claim he did not provide a substantive response. In a post hearing statutory declaration [Mr D] claimed that  he received the news his uncle was dead on 20 June 2018 as the applicant claims but at the time of his Department interview on 26 June 2018 he was nervous and scared as it was his first time dealing with the Australian Government and that he was out of his mind worried about his future.

8. The Tribunal is of the view if the applicant found out their uncle was dead on 20 June 2018 as claimed, [Mr D] would have known this at his interview on 26 June 2018 and advised the Department when asked, especially as they were living together at the time. The Tribunal has considered the response and does not accept that the post-hearing statutory declaration of [Mr D] outweighs the concerns and inconsistencies outlined above.  The Tribunal has difficulty accepting that nervousness, fear or any of the reasons put forward by [Mr D] would result in him being unable to tell the Department at interview he had found out his uncle was dead. It adds to the finding the applicant is not credible as to this claim and adds to the finding he is not a  credible witness.

9. Further, the Tribunal views as undermining his claim his vague evidence as to who told him his uncle had been attacked, his house burnt down and they did not know his whereabouts. To the Tribunal the applicant advised it was [Mr H], who also told him on 20 June 2018 his uncle had died. However, at the Department interview he was unable to name the person who had told him of what had happened to his uncle. This is despite him claiming at hearing that he had repeatedly tried to call [Mr H] who he said had told him on 20 June 2018. He indicated in a written statement to the Tribunal that the reason he could not remember [Mr H] was the person who told him when asked at the Department interview was because he was not a close friend just a member of the sporting community and that he was nervous at that interview. The Tribunal does not accept this explanation that these reasons would cause  him to forget the person’s name particularly as it was so close in time and as he indicated he repeatedly tried to call [Mr H] but his number was unavailable and the significance of the event.

10. These matters lead the Tribunal to find [Uncle A] was not attacked, beaten, killed or his house burnt down by SLPP supporters in April 2018 or at any time. It adds to the finding the applicant is not a credible witness.

    Difficulties faced in Sierra Leone while distributing t-shirts and other merchandise and campaigning for the APC

11. For the reasons that follow the Tribunal does not accept that the applicant faced the difficulties he claims due to activities distributing the APC t-shirts and merchandise, as well as campaigning door to door telling people about the APC or as a result of his uncle’s claimed activities for the APC. It adds to the finding he is not a credible witness.

12. At hearing the applicant claimed and confirmed that from Janaury 2018 to March 2018 he, [Mr D] and his uncle would campaign together most weekends. He confirmed that he and [Mr D] always campaigned together with [Uncle A]. He claimed they were verbally threatened by the SLPP guys that they would destroy their life and kill them. He said the SLPP supporters indicated that when they come to power they would eliminate him and his uncle. He said the threats happened every weekend they campaigned. However, for the reasons that follow the Tribunal does not accept that the applicant faced any of the difficulties he claims. It adds to the finding he is not a credible witness.

13. Firstly, the applicant did not refer to these threats in his application for the visa when answering questions relating to his protection claim or in his more detailed statement submitted to the Department. In his statement to the Department he only referred to the SLPP being aggressive before when in power but they could not harm them because they were protected. The Tribunal is of the view if he was directly threatened as claimed at the Tribunal hearing he would refer to this in his application or statement to the Department.

14. Further, while at the Department interview  he referred to them saying that the when they met the SLPP groups they would normally insult them, tell then to get away and threatened them by saying “ you wait when we win the election” the Tribunal is of the view if the applicant was threatened in the manner claimed at hearing including the SLPP supporters saying that that they would kill or eliminate them; he would have mentioned that when asked at the Department interview. When the concern was raised, he said he was threatened on a weekly basis. When the Tribunal raised with him that it may expect if he was threatened to be killed on a weekly basis, he would have raised it sooner and more explicitly at the Department interview or prior to that; he responded that they threatened to destroy his life. The Tribunal is of the view this does not explain the inconsistency.

15. Further, despite his claim he and [Mr D] were together campaigning on all occasions he provided significantly different evidence to [Mr D] as to the threats faced. In particular, while [Mr D] also indicated there were verbal threats made by the SLPP while campaigning, as raised with the applicant via s.424AA, [Mr D] indicated that the threats happened on two occasions and that the last time was a week before the election which was very serious when they were threatened that they would lose everything and everything his uncle acquired would be burnt to the ground. He did not say they happened weekly. In response the applicant said the confirmation is that his uncle has died, and he does not know why [Mr D] said that. The Tribunal is of the view that if the applicant and [Mr D] were threatened on numerous occasions with their life on a weekly basis they would be consistent as to this.

16. In a post hearing statutory declaration [Mr D] claimed that he and the applicant received death threats from SLPP supporters during the time that they were helping their uncle to distribute the APC merchandise. He said at the time of his Department interview on 26 June 2018 he was nervous, scared as it was his first time dealing with the Australian Government and that he was out of his mind worried about his future. The Tribunal has considered the response and does not accept that the post-hearing statutory declaration of [Mr D] outweighs the concerns and inconsistencies outlined above.   

17. The Tribunal is of the view if the applicant  was threatened as he claims he would have mentioned this in his application, initial statement and provided more consistent evidence between the Department and Tribunal, and with [Mr D] as to the difficulties faced. This adds to the finding he is not a credible witness.

    Credibility summary

18. For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to why he fears return and the difficulties he claims he faced and will face on return. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims and why he fears return to Sierra Leone. Accordingly, for all of the above reasons, in light of its findings that he is not a reliable witness, the Tribunal has no confidence in accepting that his evidence about the key aspects of his claims as to his involvement in political activism and the harm he faced was based on personal or actual experiences or for any of the reasons he claims, and considers it was fabricated to create a claim to be owed protection.

19. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, fear and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. It does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant was not a reliable witness.

20. In making this finding the Tribunal has considered his claim that omissions and inconsistencies have arisen because the applicant was scared and in fear as to what will happen on return. It does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant was not a reliable witness.

21. In making this finding the Tribunal has also considered that some information has been consistent over time including that he was involved in the APC, his uncle was attacked and his house as burnt down, that he and [Mr D] campaigned with his uncle, that he could name the candidates for the 2018 presidential election and who won and at the Tribunal hearing provide information consistent with independent information  as to recent political history in Sierra Leone. However, the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

22. In making this finding the Tribunal has considered the photo of APC support t-shirts and the actual t-shirts submitted to the Tribunal  which he claimed were similar to the ones he distributed. He claimed he bought it to Australia and was going to wear it home as he believed the APC would win. He indicated this showed his support for the APC. At the Department interview, despite referring to having the t-shirt with him in Australia and being requested to send a photo of the t-shirt to the Department following the interview within 7 days he did not. The Tribunal is of the view if he had the t-shirt at that time, he would have submitted a photo to the Department.  Based on his lack of credibility and the concerns above, the Tribunal places no weight on the submission of the APC t-shirts and photographs of the t-shirts submitted as evidence of his involvement in the APC or as evidence of his claims.

1. In making this finding the Tribunal has considered the article titled ‘[deleted]’ by [a journalist]. The article is dated 10 April 2018. The article refers to election violence in Kemena between supporters of the SLPP and  the APC and particularly that the applicant’s adopted uncle, [Uncle A]’s house was set ablaze. It notes that [Uncle A] and his two nephews, the applicant and [Mr D] were in the frontline  campaigning for the APC. The Tribunal has above found that the applicant was not involved with the APC as claimed so in light of this, gives little weight to an article which states that he was involved in the APC. It also notes the information about availability of fraudulent documents, discussed further below. Furthermore,  sources suggest that asylum seekers from West Africa have on occasion submitted fake news stories as evidence in support of asylum claims[6] and Australian migrants often pay large sums, often thousands of Euros to people who are sophisticated criminal smugglers or migration brokers.[7] Fraud is widespread across the region with fraudulent documents in use for visa applications.[8] Further, as also raised with the applicant the Tribunal could find no other article or reference to the journalist [which] it may expect if he was a journalist in Sierra Leone. Further, the article is dated 10 April 2018 , however the applicant indicated he received it on 6 or 7 April 2018. The Tribunal is therefore not satisfied as to the authenticity of the document given the Tribunal’s lack of satisfaction as the applicant’s political claims, his uncle being harmed as claimed, and evidence of widespread fraud in document production in Sierra Leone.

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

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

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

2. In making this finding the Tribunal has considered all the other articles and country information submitted by the applicant as to the difficulties faced by APC supporters in Sierra Leone. However, based on the Tribunal finding that the applicant lacks credibility, including with regard to his or his uncle’s actual involvement in the APC and the difficulties they faced,  the Tribunal does not accept these articles explain or excuse the concerns which, cumulatively, have led it to find that the applicant was not a reliable witness.

3. In making the finding the Tribunal has considered the evidence of his current partner [Ms B]  as to the applicant’s claims. The Tribunal notes that both the applicant and [Ms B] advised at hearing that they first met in 2020 after the applicant came to Australia and that the  applicant advised [Ms B] as to his claims and fear of return. As the evidence indicates  the applicant advised [Ms B] of his claims based on the applicant’s lack of credibility as to these claims it places no weight on [Ms B]’s evidence as to his claims, fear of return and difficulties faced in Sierra Leone.

4. In making this finding the Tribunal has considered the oral evidence of [Mr C]. Of concern is that his evidence was inconsistent with that of the applicant’s as to what and when they heard of the death of his uncle [Uncle A]. [Mr C] said he heard soon after he died, sometime between April and May 2018 , whereas the applicant indicated that despite calling regularly and trying to find out he did not find out his uncle had died until 20 June 2018. Further [Mr C] said [Uncle A] was at the APC office at the time of the incident, ran to his home and was burnt inside whereas the applicant indicated his uncle was inside his house when first approached by the SLPP supporters, came outside and was beaten and his house was burned. Due to the above concerns and the significant credibility aspects outlined above with the applicant’s evidence, the evidence of [Mr C] does not lead the Tribunal to change its view that the applicant is not a credible witness.

5. In making this finding the Tribunal has considered the letter of recommendation dated 2 August 2022 from [a] Coordinator, [Organisation 1] supporting the applicant’s application for permanent  residency, the letter of recommendation dated 12 August 2022 from [named person], [Sport 1 NSW][supporting] his application for permanent residence and the letter of recommendation dated 2 August 2022 from [a] Mentor Coach, [University 1] [Sport 1] Club. As none of these letters of recommendation refer to or support the reasons for the applicant’s claims for protection, none of the information in these letters outweighs the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

6. In making this finding the Tribunal has  also considered the affidavits from [Mr F], [an official] of the [Sport 1] Federation of Sierra Leone, and from [the] Kenema District Chairman of the APC supporting the applicant’s claims of political involvement with the APC in Sierra Leone, that his  home was pillaged and burnt down with his uncle killed in the process . However, based on the prevalence of document fraud in Sierra Leone[9], as raised with the applicant at hearing, and on the basis of the applicant’s lack of credibility, the Tribunal places no weight on these letters as evidence of the applicant’s claims and the difficulties he faced.

   [9] DFAT Thematic Report – Economic Community of West Africa dated 3 December 2020 at 5.22

7. In making this finding it has also considered above the post-hearing statutory declaration of [Mr D] explaining the reasons for the inconsistencies  between his and the applicant’s evidence but has not accepted his reasons as outlined above.

8. In making this finding the Tribunal has considered the photographs of people claimed to be injured in riots after the election results were announced, including a photograph of a bloodied person wearing an APC t-shirt claiming to be of [Uncle A] . As the face of the photo of the person on the ground injured cannot be seen and based on  the applicant’s lack of credibility, the Tribunal places no weight on these photographs as evidence of the applicant’s claims and the difficulties he faced.

9. Therefore, based on the applicant’s lack of credibility, and on the evidence before it, the Tribunal does not accept the applicant was ever involved with or had any political profile as a community or political activist or  campaigner with the APC. It follows it does not accept he attended APC meetings, campaigned for the APC prior to the 2018 election by telling people about the APC and distributed merchandise. It follows it does not accept he campaigned with [Uncle A] or anyone else or that his uncle was a member, leader and activist of the APC. It follows it does not accept at any time he was in Sierra Leone he received threats or insults or had any verbal exchanges with SLPP candidates as he was campaigning for the APC. It follows  it does not accept he was ever threatened with harm or that he would be killed if the SLPP won the election.

10. Based on the applicant’s lack of credibility it follows it does not accept that after the elections were announced  [Uncle A] was chased, beaten, threatened , his house was burnt and he was killed. It follows it does not accept threats were made to harm the applicant due to his association with [Uncle A] as he lived with him, campaigned with him or for any of the reasons he claims. It follows it does not accept his friends or anyone else has told him not to return as the SLPP supporters or anyone else has vowed to kill, harm or eliminate him due to his association with [Uncle A] or because of his own political opinion.

11. It follows based on his lack of credibility, that the Tribunal does not accept that the applicant did not return to Sierra Leone after the 2018 Commonwealth Games because he feared for his life or he feared he would be attacked, harmed or killed for the reasons he claims due to the difficulties [Uncle A] faced or because the SLPP won the elections or for any of the reasons he claims.

12. It follows that the Tribunal does not accept he was or is of any interest to any group due to an actual or imputed political opinion or for any of the reasons he claims or that he held or holds any concerns for his safety or fears being harmed for any of the reasons he claims.

    Does the applicant have a well-founded fear of persecution in relation to Sierra Leone and meet the refugee protection provisions of the Act and does he meet the protection obligations under the complementary protection provisions of the Act?

    Political and imputed political opinion

13. Based on its findings as to the applicant’s credibility and findings of fact outlined in the paragraphs under the heading Credibility summary the Tribunal has found that the applicant was and never has been involved with the APC, that he never campaigned for the APC or handed out APC merchandise or that his uncle, [Uncle A] was involved in the APC or  faced the difficulties the applicant claims. It does not accept he was ever threatened with harm because of any political or imputed political opinion associated with the APC because of [Uncle A]’s involvement including because he lived with him. The Tribunal has rejected in its entirety the difficulties the applicant claims happened to him and his uncle in Sierra Leone. It follows it does not accept that the SLPP supporters or anyone else, had any interest in the applicant prior to or at the time he left Sierra Leone up to his departure in March 2018, for the reasons he claims, or will have in the future, based on his or his uncle’s claimed political membership and activities.

14. As the Tribunal has found that the applicant was never involved in the APC, it follows that the Tribunal is not satisfied that the applicant will participate in the APC in any way on return or will suffer persecution by being prevented from being involved. It therefore does not accept, as he has not been involved in the past, that he will continue to be involved in the APC, or carry out any political activities as a member or supporter or advocate for the APC were he to return to Sierra Leone.

15. It follows were the applicant to return to Sierra Leone it does not accept he will be targeted by members of the SLPP, government or anyone else because of any political activity he claims he had in the past or will have in the future or any imputed political opinion he may hold due to his claim his uncle [Uncle A] was involved in the APC and /or that he was family and they lived together. It follows it does not accept he will be arrested, killed, harassed, threatened, attacked, beaten, tortured, or be unable to earn a livelihood.

16. It follows that the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm were he to return to Sierra Leone in the reasonably foreseeable future due to an actual or imputed political opinion as a supporter of the APC or as a member or campaigner for the APC.

17. Similarly, based on the findings above and on the information before it the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm on his return to Sierra Leone due to an actual or imputed political opinion as a supporter of the APC or as a member or campaigner for the APC .

    Conclusion regarding the Refugees Provisions  

18. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Sierra Leone in the reasonably foreseeable future.  On the basis of the above the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons, if he returns in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Conclusion regarding Complementary protection

19. The Tribunal has also considered whether the applicant is eligible for complementary protection. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of the applicant being subjected to significant harm in Sierra Leone in the reasonably foreseeable future. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, there is a real risk that he will suffer significant harm as defined in s.36(2A), on the basis of his claims considered individually or cumulatively.

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

    Ministerial Intervention

21. The Tribunal notes that under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. 

22. The Minister’s Guidelines indicate the matters that should be brought to his attention[10]. In particular it refers to

    [10] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)

    Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.[11]

    [11] Ibid

100.   Information before the Tribunal indicates that the applicant is the biological father of an Australian citizen who is [age]. Although he is not in an ongoing relationship with her mother, who is also an Australian citizen, he provides significant support to her and his child. The Tribunal accepts that he is very close to his daughter and provides significant financial and emotional support to both his daughter and the mother of his daughter. He visits his daughter regularly and talks to her daily and provides her with [amount] in child support per month as well as $20 per week. If he was removed it is highly unlikely due to the age of his daughter and where the applicant is from that they would be able to continue to see each other regularly or he would be able to provide the much needed emotional and financial  support to her.  The Tribunal is of the view that being removed from his daughter, who is only [age] would result in serious, ongoing and irreversible hardship to the applicant’s daughter, an Australian citizen.

101.   It also notes he is a talented sportsman as per the letters of recommendation.

102.   Having regard to the applicant’s circumstances outlined above and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

CONCLUSION

103.   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).

104.   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).

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

decision

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

Gabrielle Cullen
Member

APPENDIX - Relevant law

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.

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

Mandatory considerations

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

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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