1820585 (Refugee)

1820585 (Refugee) [2023] AATA 4521 (17 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820585
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Peter Haag
DATE:17 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 October 2023 at 11:18am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – imputed political opinion – anti Sierra Leone People's Party (SLPP) – threatened and assaulted by relative over land title – father murdered – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sierra Leone, applied for the visa on 3 May 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 9 October 2023 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, 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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal relevantly applied this provision when considering the applicant’s claims and evidence.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s background
In his application for a protection visa, the applicant claims to be a citizen of Sierra Leone, born on [date] in [Town 1], Sierra Leone. He claims to be an ethnic Temne of Muslim faith who can speak Krio, Temne and English, and read and write English.
In his visa application, the applicant provided details of his mother, three brothers and a stepbrother, who are all citizens of Sierra Leone residing in Sierra Leone at the time of the visa application.
At the time of his visa application, the applicant was residing in [suburb], N.S.W, Australia and has been residing there since April 2018. He did not provide details of any previous residential addresses.
In his visa application, the applicant stated that he attended primary school between September [year] and June [year]. He did not provide details of any further education or qualifications.
The applicant did not provide details of any current or previous employment in his visa application.
Applicant’s identity
The applicant provided the Department with a copy of his Sierra Leonean passport.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Sierra Leone, and as such his protection claims will be assessed against Sierra Leone as the country of reference and ‘receiving country’ respectively.
Migration history
[In] March 2018 the applicant arrived in Australia on a Temporary Activity (GG-408) visa.
On 3 May 2018 the applicant lodged an application for a protection visa and on 5 July 2018 the delegate for the Minister refused the visa application.
On 16 July 2018 the applicant lodged an application with the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection in the following statement attached to his protection visa application on 3 May 2018:[1]
I fear that if I return to Sierra Leone, I will be seriously harmed by my uncle or his associate because my uncle wants to take the land that was my father's, and the authorities will not protect me form this harm.
It all started when my grandfather died on the 13th of April 2015. My father's youngest brother was very angry when he learnt that my grandfather gave my dad the largest piece of property which contained iron ore. My father used the land for business, such as cutting wood for sale and breaking stones for sale for use by people who build houses. This is how we make a living. My father used that money for our education, such as paying for school fees.
On the 16th of March 2016 my uncle came to my father's home and said he wanted to discuss business with my dad. My father asked me to be present since I was the oldest male child in the family. This upset my uncle and he was not happy when I was present. The decision was made that my father was to sell the land to a politician and my dad said no to them, which resulted in my uncle walking out angrily.
On the 15th of September 2017 my uncle returned and he threatened my father and the entire family to give him the land documents. However my father ignored his threats. Then my uncle came on [date] December 2017 with the politician and with some thugs. I was at [Location 1, training] to come to Australia. However when I went home I saw people standing around my compound screaming and I rushed to the gates and saw my dad on the ground bleeding and they also jumped on me attacking me. I passed out from the beating and I was in a coma for two days, when I finally awoke I asked for my father and I was told he was dead.
After the 40th day ceremony of my father's death, my uncle came once again and asked me for the land documents. He asked me where my father kept the documents and said he wanted them now. My father had instructed me not to give my uncle the documents. I had to leave to the house so my uncle would not harm me. I took the documents to my friend for safe keeping.
My uncle wants this land so badly because of the mineral properties such as iron ore and he wants to sell it to the politician. It is very valuable piece of property. I don't want to give up the land because I promised my father before he died that I would not give it up. My father died for the land so I must honour his life.
Our police cannot do anything to protect me from my uncle and that politician. I am very traumatised and stressed because if I were to return to any country near my home country them they will find me. That is why I am seeking protection in Australia.
I have a bone fracture from the assault by my uncle and the thugs. Before coming to Australia, I thought it was just a minor [Body Part 1] problem. But when I got to Australia and was in training, the pain got much worse and I had an X-ray. I was then told I was not allowed to [compete] because of the injury. This why I am seeking protection I am extremely traumatised and stressed, please help in the name of God, thank you.
[1] Department file [number], Doc ID [number].
On 4 May 2018 the applicant submitted to the Department a photocopy of three black and white photographs purportedly depicting the injuries referred to in his statement of claims, and a copy of the CD of the X-ray images of his [Body Part 1], made by [X-ray clinic], dated [date] March 2018.[2]
[2] Ibid, Doc ID [number].
On 4 May 2018 the applicant lodged with the Department copies of two photographs which, according to the handwritten caption on the photographs, states the photographs depict the applicant’s deceased father. The caption also indicates the images were sent by a friend (unnamed) to the applicant’s telephone on an undisclosed date.[3]
[3] Ibid, Doc ID [number].
On 23 May 2018 the applicant submitted to the Department the following supplementary statement of his protection claims, signed, and dated 23 May 2018:[4]
[4] Ibid, Doc ID [number].
1. The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to Sierra Leone. I will provide further information in relation to my claims during any interview with the Department of Home Affairs.
2. I fear that if I was forced to return to Sierra Leone, I would be seriously harmed because of the property dispute that is continuing with my family and because of my imputed political opinion against the SLPP.
3. I fear this harm from my uncle, the politician, the thugs that have previously harmed me and killed me father, and the Sierra Leonean authorities.
My background and history
4. I was born in [Town 1], Northern Region, Sierra Leone on [date].
5. I am Temne ethnicity and a Muslim.
6. I am a citizen of Sierra Leone. I am not a citizen of any other country, nor do I have a legal right to reside in any other country.
7. I am not married and I do not have children.
8. Most recently I worked as an [Occupation 1].
9. I came to Australia by plane, arriving [in] March 2018 as an [Occupation 1] in the Sierra Leonean [team].
Problems in Sierra Leone
10. The problems in Sierra Leone started when my paternal grandfather died on 13 April 2015. My paternal grandmother had already died many years ago. My grandfather gave the largest piece of family land to my father. My father was the oldest son, so it was tradition to pass the largest parcel of land to my father.
11. The land was used to sell timber and stone. We would sell the timer as firewood. We would also crush stone on the land which would then be purchased to make a type of concrete/mortar that could be used to build houses.
12. There is also iron ore on the property which makes the land valuable.
13. My paternal uncle - [Mr A] - is the younger brother of my father. He was very upset when my father was left the largest parcel of land after my grandfather died.
14. I sometimes resided at [Location 2] which is located in Freetown. [Location 2] is [approximate travel time] from the family property (sometimes [longer travel time] depending on the traffic). I would often spend a few weeks at a time training at [Location 2], and would then go home and stay with my father. It depended on the training schedule of my coach.
15. I first became aware that my uncle was upset and angry about the property being left to my father on 16 March 2016. On this date I was at home, and was not at [Location 2]. I lived in a separate lodging behind the main house. In Sierra Leone, we refer to this type of lodging as the "boy squatter'' as it is where the sons stay when they get older. On this day I remember my father coming out to the boy squatter to get me. He told me that my uncle was here and wanted to discuss the property, and he wanted me to be present. He asked this of me as I am the oldest male child.
16. My uncle was very angry when I saw him. It was clear that he did not want me to be present. My uncle said that he wanted my father to sell the family land to a politician. My father refused to sell the property to the politician. My uncle was angry at this and he left.
17. Not long after this incident, my uncle came back another time when I was home. My uncle threatened my father. He said that my father must sell the property to the politician or he would kill my father and the entire family.
18. After my uncle threatened my father, he decided to give the land documents to me for safekeeping. My father told me not to tell anyone. I gave the documents to a friend of mine that lived in Freetown to keep safe. His name is [Mr B]. I have been trying to contact him since arriving in Australia, and I have been unable to reach him. I have spoken to another friend, and he said that he does not know [Mr B]'s whereabouts.
19. On 15 September 2017 I was at the family home. My uncle again visited the home and continued to threaten my father and family. He demanded that the land documents be given to him. My father ignored his threats.
20. On [date] December 2017 I was in Freetown at [Location 1, training] to qualify for [competition] in Australia. My father called my coach on the phone and said that he needed to speak with me. My father demanded that I come home immediately. I immediately left Freetown and went home, and arrived home later that day. When I arrived home I saw lots of people surrounding the compound gates. I rushed to the house, and found my father lying on the ground outside the house. He was being beaten by thugs and was bleeding. I rushed to my father. The thugs then started attacking me too. I passed out from the beating. I awoke in the hospital two days later. I was told that I had been in a coma for two days. When I asked what had happened to my father, I was told that he had been killed.
21. When I awoke I had injuries to my head. Since the attack, I have continuing head injuries. I have problems with [my face]. I have some scars on my [Body Part 2]. I also had pain in my [Body Part 1]. When I arrived in Australia to [compete], I noticed the pain in my [Body Part 1] when I was training. My coach said that I had to go to the doctor. I went to the doctor and described the pain. He ordered a scan of my [Body Part 1]. I then discovered that there was a fracture in my [Body Part 1]. Due to this injury, I was not allowed to [compete].
22. We commemorated my father's death with a 40 day ceremony, as is tradition in Sierra Leone. On this day, my uncle came and threatened me again. He wanted the land documents and he wanted to know where my father kept them. I had already given the documents to my friend [Mr B] for safekeeping. Prior to his death, my father had instructed me not to tell my uncle where the documents were hidden. I obeyed my father's instructions, and told my uncle I did not know where the documents were. I was very afraid. My uncle and the politician and their thugs had already killed my father and injured me, so I was very afraid of what would happen to me. My uncle said that he would kill me too if I did not get the documents for him. I left immediately and went back to Freetown. Since this date, I have not returned to my home for fear that my uncle, or the politician and his thugs will find me and kill me.
23. My father was a supporter of the APC. However, my uncle was a supporter of the SLPP, and the politician that he wanted to sell the land to was a member of the SLPP.
24. I cannot get help from the authorities in Sierra Leone. I cannot go to the police in Sierra Leone. The politician that my uncle is affiliated with is SLPP. The police in Sierra Leone are both corrupt, and controlled by the government. Prior to coming to Australia the APC was in power. Since coming to Australia, the SLPP came to power. I fear that not only would the police not provide me with any assistance, but they would report me to the SLPP.
25. If I was to return to Sierra Leone, I believe my uncle and the politician will be searching for me to try and get the land documents. As soon as I arrive in the airport, I believe that they will catch me because they will be looking for me.
26. I promised my father prior to his death that I would never sell the land to the politician, or give the land documents to my uncle or the politician. I must honour my father, and must never allow the land documents to be provided to my uncle or the politician. Even if I decided to hand over the land documents, I can no longer reach my friend [Mr B], so I can't retrieve the land documents unless I am able to learn his whereabouts.
My fears if I am returned to Sierra Leone
27. If I am returned to Sierra Leone, I am afraid that I will be subjected to serious harm including being captured, detained, beaten and killed.
28. I am afraid of this harm from my uncle, the politician and his thugs, the SLPP and the authorities.
29. I have already experienced being beaten and permanently injured by my uncle's and the politician's thugs. My father has been killed and I have been threatened many times.
30. I could not relocate to any other part of Sierra Leone because my uncle and the politician would be able to use the SLPP to locate me in any location in Sierra Leone.
31. I am afraid that I would not be protected by anyone, including the authorities, because the police are corrupt and are controlled by the SLPP.

On 24 May 2018 the applicant attended an interview with the Department.[5]
[5] Ibid, Doc ID [number].
On 29 September 2023 the applicant provided the Tribunal with a copy of the record of the delegate’s decision, made on 5 July 2018, to refuse to grant the applicant a protection visa.[6]
[6] Tribunal file, Doc ID 11583798.
Evidence not presented before the primary decision was made
On 8 October 2023, being the day before the hearing, the applicant lodged with the Tribunal a document said to be a copy of a Death Certificate issued on [date] December 2017, which states the applicant’s father, [Mr C], died in [Hospital 1] on [date] December 2017 at 7:15AM.[7]
[7] Ibid, Doc ID 11617067.
Consideration of claims and evidence
Essentially the applicant’s protection claims depend on the evidence being sufficient to establish to the satisfaction of the Tribunal that:
·The applicant’s father owned a parcel of land which contains a deposit of iron ore and from which the father extracted rock that he sold for use in concrete, and timber he harvested and sold for firewood. (The income from the land was used to support the family and pay for the education of his children.)
·Upon the death of the grandfather, in accordance with established rules of inheritance in Sierra Leone, the land passed to the applicant’s father because he was the eldest son.
·The applicant’s paternal uncle (uncle), [Mr A], being younger than the applicant’s father (father), inherited a smaller parcel of land, and for that reason he felt aggrieved. In early 2016 the uncle was demanding the father sell the land to a politician.
·The father refused to sell the land and he gave the land title documents to the applicant for safe keeping. The applicant gave the documents to a friend named [Mr B] who lived in Freetown.
·On 15 September 2017 the uncle visited the family home and demanded the land title documents be given to him. The father disregarded the threats. The uncle again threatened to harm the applicant’s father and his family.
·On [date] December 2017 the applicant was in Freetown at [Location 1] as part of his efforts to win a place in the [team] and to represent his country at [a forthcoming sporting event] in Australia. On that date the father telephoned the applicant’s coach and demanded the applicant return home immediately.
·The applicant arrived at the family home to find a crowd of people from the neighbourhood at the front gate. The applicant found his father on the ground being beaten by thugs. The applicant intervened. He was assaulted and rendered unconscious. He woke two days later in hospital. He was told his father died from his injuries.
·The applicant suffered head injuries which are continuing. He still has physical problems with [his] face. His [Body Part 2] was injured and is scarred. The assault injured his [Body Part 1], and his [Body Part 1] was painful.
·At the 40-day commemoration of the father’s death the uncle inquired as to the whereabouts of the land title documents. The applicant denied knowledge of their location. The uncle demanded the applicant give him the documents. The father had instructed the applicant not to sell the land. According to the visa application, the applicant had already given the title documents to his friend [Mr B] for safe keeping. The uncle said he would kill the applicant if he did not give him the documents. The applicant was afraid because the uncle and the politician had killed his father and injured him.
·The applicant returned to Freetown. He qualified for a [place] in Sierra Leone’s [team], despite his injuries. On [date] March 2018 he departed Sierra Leone legally to compete for [Sierra Leone] in Australia.
·The father was a supporter of the APC political party. His uncle supports the SLPP political party which is now in power. The politician the uncle wanted the land to be sold to is a member of the SLPP.
According to the applicant’s case, his father was beaten to death on [date] December 2017 by thugs working at the behest of the uncle and the unnamed corrupt politician, for the reason the father refused to sell the iron ore-rich land to the politician. The applicant says he travelled from the [training camp] in Freetown by bus, after being told by his coach about 6.00am that his father wanted him home urgently. He arrived at the family home to find a crowd of neighbours looking on while thugs were bashing his father.
There is a significant degree of implausibility in this account of events. The applicant’s evidence recognises the father was the legal owner of the land, and that the uncle and politician appreciated a precondition to them obtaining possession and use of the land was possession of the land title documents. They were unaware of the location of the documents but unsurprisingly, they were satisfied the father had possession of the documents.
It seems to defy common sense that the uncle and politician would have the father beaten to death in full view of a crowd of onlookers, thereby killing the person they depended on to provide them with the land title documents. The evidence suggests that whatever use the uncle and politician wanted to make of the land depended on them obtaining legal title to the land from the father.
At hearing the applicant said, consistently with his written evidence, that by operation of established process in Sierra Leone, he is now the legal owner of the land because he is the eldest son. The applicant has not contended his ownership of the land was lost because he was unable to produce the land title documents due to his inability to locate [Mr B], the person to whom he gave the documents.
According to the applicant, he left the hospital two days after he was bashed and injured on [date] December 2017, and returned to [Location 2] in Freetown, the [residential] training camp. There he continued to train for the selection trials in which his performance would determine whether he would be included in the national team to compete for his [country].
The period between the alleged murder of the applicant’s father and the applicant suffering, what according to the evidence may be properly described as serious injuries, and the applicant’s departure for Australia is about three months. There is no written evidence that the uncle and politician interfered with or attempted to interfere with the applicant when he was in Freetown.
Considering the applicant’s evidence at hearing about the ability of people with political influence to do whatever they wanted to do in Sierra Leone, and that is the reason the police did not properly investigate the persons who murdered his father and assaulted him, and that the applicant was an elite [Occupation 1] and member of the uncle’s family, it impressed the Tribunal as reasonably likely the uncle and the politician would have known the applicant was in training in Freetown, and made demands of him for the title documents before he left the country. The Tribunal raised this concern with the applicant and that there was no evidence the uncle interfered with him in the training camp, such as sending thugs or anyone else to the camp to find him.
In response to the Tribunal’s concern the applicant said, after the assault, and while he was in the training camp, he was being subjected to spiritual attacks. In elaboration the applicant said the attacks were demonic attacks induced by black magic. The Tribunal asked about the cause of the attacks. The applicant said he suspected his uncle was ‘doing’ the attacks. The applicant added to this evidence. He said last month [in Australia], he had an accident where he saw black on his face. He called his auntie in Africa about it. After the auntie investigated the matter in a ‘native way’, she informed the applicant his uncle is the cause, and he is after the applicant’s life.
The Tribunal reminded the applicant he had submitted several documents to the Department with his visa application, explaining his case and the harm he suffered in his country, but he did not say his uncle had caused him to suffer spiritual attacks. The Tribunal asked the applicant to explain why he did not do so if those attacks occurred. The applicant responded that he was still traumatised thinking about his father and himself, and he was unable to explain everything. The Tribunal put to the applicant that his written application is very detailed. The applicant agreed. He reiterated that his reason is he was traumatised at the time.
The applicant had the presence of mind to submit a detailed written statement of claims and supporting information, and a detailed supplementary statement to the Department before the Minister’s delegate refused to grant the visa.[8] Both statements elaborated in considerable detail, upon the alleged harm the uncle caused to his father and himself in Sierra Leone. The applicant also had the presence of mind to provide with his visa application, several photographs he asserts depict his deceased father and additional photographs, taken in Australia, said to evidence the injuries his uncle and the politician caused to be inflicted on him. Additionally, he had the presence of mind to provide a copy of a CD of X-rays taken in Australia in support of his evidence about being injured by thugs, he says were acting for his uncle and the unnamed politician.
[8] See above: paragraphs 23–27.
On balance, the Tribunal does not accept the applicant’s evidence for not presenting the evidence about the uncle harming him in the [training camp] by using black magic and demonic attacks, to be a reasonable explanation why the evidence was not presented before the primary decision was made. The Tribunal in applying s 423A of the Act to the evidence, draws an inference unfavourable to the credibility of the evidence.
Furthermore, the Tribunal considers the applicant’s evidence about his uncle subjecting him to demonic attacks in both Sierra Leone and recently, in Australia, to be inherently implausible and indicative of the applicant being an unreliable witness.
Essential to acceptance of the applicant’s claim that he meets the requirements for a protection visa is acceptance that his father was murdered on [date] December 2017. The applicant claimed in his documentary case, Department interview and evidence before the Tribunal that his father died on [date] December 2017, and the cause of death was traumatic injuries caused by thugs working for the uncle and his unnamed accomplice, a corrupt politician.
Before the Minister’s delegate refused the visa application, the applicant relied on his documentary case and statements at interview, asserting that his father was beaten to death on [date] December 2017. He relied on two photographs, with a handwritten caption that states ‘Photo of my father’s body sent to me by a friend (on my phone).’ It is evident from the contents of the caption and that the applicant submitted it to the Department, that the applicant wrote the caption. The caption does not provide independent verification that the person depicted in the photographs is the applicant’s father, or the date on which, or location where, the photograph was taken. Both photographs are unclear. It appears from the photographs that the person depicted suffered trauma. The photographs do not display a date stamp.
The applicant did not specify in evidence the name of the person who took the photographs, the name of the person who sent the photographs to his telephone or the date he received them. The photographs do not identify the electronic address from which the photographs were sent, or the country from which they were sent to the applicant’s telephone.
It is evident from the applicant’s evidence at hearing, and that he asserts he obtained and submitted the photographs with the handwritten caption on one of them, that he knew it was necessary to provide evidence that substantiated his evidence that his father was dead, and the circumstances of his death, and he submitted the photographs for that purpose.
The applicant, without explanation, provided no evidence such as a statement or affidavit from any of his eldest biological brother, stepbrother or aunties who reside in Sierra Leone,[9] to verify that the father is deceased; he was murdered; the existence of the disputed land; the existence of the uncle; or the history of the ownership of that land. It is reasonable to apprehend these matters would be known to family members if the applicant’s evidence is correct.
[9] Tribunal file Doc ID 11617067, email sent by the applicant which states ‘This is my dads deaths [sic] certificate I just got from one of my Aunt’s in Freetown’ indicating the applicant has more than one auntie.
There is no evidence of animosity between the applicant and any of his brothers, including his stepbrother, or aunties, or other reasons why at least one of them would not have knowledge of the relevant events and relationships, and would not have provided evidence capable of verifying the applicant’s contention that his father is deceased; that he was murdered; and that he owned the relevant parcel of land, and stating anything else they may know about the uncle and his attitude to the ownership of the land, and the history of the ownership of the land, including present ownership and use of the land, if it exists, and the applicant’s evidence about the problems concerning the land is reliable.
There is no evidence that the applicant contacted or attempted to contact any of his siblings or stepbrother, or his aunties or friends (for example, the one the applicant says was at his bedside when he woke in hospital) at any time to obtain statements or other evidence reasonably capable of supporting his essential claims and evidence.
It is relevant to restate that the evidence establishes the applicant was aware when he submitted his visa application, of the relevance of supporting his claims with confirmatory evidence, such as photographs and a second statement with more specific information, such as the name of the person to whom he said in his first statement he gave the land title documents.
According to the visa application the applicant stated at the time of application that he was not in contact with relatives outside Australia.[10] Nevertheless, he provided the residential address and mobile telephone number of two of his biological brothers and his stepbrother. He also provided the telephone number in Sierra Leone of another one of his biological brothers. It is evident therefore, that the applicant had the means to communicate with his siblings.
[10] Department file, visa application, Part C, question 41.
The applicant therefore had the ability to communicate with his family members and either from one or more of them, or through contact with them, seek supporting evidence from other family members, such as the aunties, to substantiate the death of the father; other essential facts, such as, the existence of the disputed land, the utility of the land; and, the existence of the uncle and his attitude to the father inheriting the land; all matters it is reasonable to apprehend they would have some knowledge of, and be able to speak to either orally or in writing, if the applicant’s evidence is substantially correct.
The applicant submitted a document to the Tribunal for the purpose of supporting his assertion that his father died on [date] December 2017. The document was sent as an attachment to an email the applicant sent from his email address to the Tribunal at 8.25pm on 8 October 2023, the night before the hearing. The document was uploaded to the Tribunal file at 10.17am on 9 October 2017. The Tribunal hearing was scheduled to start at 10.30am. The Tribunal read the document for the first time during the hearing.
The document purports to be a certificate which certifies [Mr C] (the applicant’s father) died on [date] December 2017 at 7.15am, and that the death was registered at [Hospital 1]. After reading the document the applicant was informed the Tribunal was concerned the document was not genuine. The applicant said it is genuine and that his auntie sent it to him on 5 October (2023) as an attachment to an email. The applicant did not name the auntie he was referring to, and he did not forward the auntie’s email with the attachment to the Tribunal. Rather, he sent the document to the Tribunal as an attachment to an email sent from his personal email address.
The Tribunal is therefore unable to verify the document was sent from Sierra Leone, the email address from which it was sent, or see who sent it to the applicant.
In response to the Tribunal’s request to see the original document, the applicant said he did not have it with him.
The document is a copy of another document. It is a simple document containing handwritten information written on a printed form. It purports to have been written on [date] December 2017, therefore, if taken at face value, the document was in existence before the applicant departed Sierra Leone for Australia.
At the foot of the document there is an illegible stamp. A signature appears to have been written over the stamp. The document represents that it was issued by the person who signed it. The signature is illegible, and no printed signature block is visible on the document.
The document does not contain sufficient information to allow the reader to identify the name of the person who signed the document. The document does not specify the address of [Hospital 1] said to be the place at which the death was registered, or other points of contact such as a telephone number or email address of the hospital, or the person who is said to have issued the document.
At the top right-hand corner of the document the words ‘Office of Chief Registrar Ministry of Health’ appear as printed words. The address or other contact points such as the telephone number or email address for the Ministry have not been specified in the document.
Using the information provided on the form it is not possible to contact the persons or institutions referred to in the document for the purpose of seeking to verify the accuracy of the information contained in the document, and the authenticity of the document. The absence of basic contact information on what purports to be an important official government document, is a matter of concern to the Tribunal. The absence of such commonplace information is a matter of concern to the Tribunal, and it weighs against accepting the document is genuine, and the information in the document is reliable.
An additional matter of concern arises from the form of words printed on the document. The last line of the printed words is: “Witnessed my hand this…day of…’ The blank spaces were filled in by hand. The completed line reads ‘Witnessed my hand this twenty-nine day of December 2017.’ Below that line there is the illegible stamp and the signature already referred to in these Reasons. Beside the stamp there is a mark that may be a fingerprint, but the mark is too indistinct to be certain.
There is no signature on the document that witnesses the indecipherable signature of the unidentifiable person who apparently issued the document purporting to be an official death certificate issued on behalf of the ‘Republic of Sierra Leone.’
The Tribunal doubts that a document that purports to be an approved, standard form government issued Death Certificate, would contain the ambiguous phrase: ‘Witnessed my hand this…’
Relevantly, DFAT published its Thematic Report for the Economic Community of West African States (ECOWAS) – December 2020 (DFAT report) and it includes Sierra Leone as one of the member states of ECOWAS.
Amongst other things, the DFAT report discusses the prevalence of fraud and corruption across the ECOWAS region.[11] According to the report corruption is highly prevalent across the ECOWAS region. Genuine documents with fraudulent information and fraudulent documents with genuine information are common in the ECOWAS region.
[11] DFAT report [5.22]–[5.28].

The DFAT report states that in many ECOWAS states, including but not limited to Nigeria, birth and death certificates are not considered documents of trust.[12] DFAT assesses that in the ECOWAS region, systems of government administration lack adequate financial, human and material resources and capacity to ensure document integrity and prevent corruption.[13] Furthermore:
DFAT assesses that, although degrees of severity vary across ECOWAS member states, generalised corruption is common and documentation is commonly and easily obtained with little to no assessment of entitlement. DFAT notes Guinea is reported to be the most extreme case in this regard. DFAT also assesses there is a well-established history of individuals across ECOWAS using fraudulent (counterfeit or altered) documents and fraudulently obtained genuine documents to obtain visas.
[12] Ibid [5.24].
[13] Ibid [5.28]
Having considered the applicant’s evidence that the death certificate is a genuine document, the form and content of the document, the DFAT report relevant to the prevalence of fraudulent documents across the ECOWAS region, which includes Sierra Leone, and the applicant’s evidence about the death of his father on [date] December 2017, the evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal that the death certificate is a genuine document.
Having considered the applicant’s evidence that his father is deceased, and the circumstances of his death; the supporting evidence he relies on to substantiate his claim that his father was beaten to death on [date] December 2017, including the undated photographs of an injured male person the applicant says is his father; and the document he claims to be a genuine death certificate, the Tribunal’s concern about the reliability of the applicant as a witness: the evidence and material (including the Department interview) before the Tribunal is insufficient to establish to the satisfaction of the Tribunal that the applicant’s father was killed on [date] December 2017.
For ease of reference, it is convenient to rehearse the applicant’s evidence concerning the circumstances in which he asserts he was seriously injured at the behest of his uncle and an unnamed politician.
The applicant contends he was assaulted on [date] December 2017 when he went to the aid of his severely injured father. The assailants who bashed the father turned on him. They rendered him unconscious. He woke two days later in hospital with a friend, [named], by his bedside.
The applicant claims he suffered head injuries so severe that he continues to suffer from the injuries. He asserts his left eye waters whenever he eats something, and his sense of taste is also affected. He says [specified physical defect] as a result of the head injuries he asserts he suffered during the assault.
The applicant said in evidence, at a recent medical examination the person who examined him said it seems he suffered an injury to his head. The applicant did not provide any medical report to substantiate his evidence or cogent specifics about the examination, such as whether he was examined by a medical doctor. There is no evidence that he was denied employment on medical grounds, or that his ability to work in either of his current [jobs] is impeded.
According to the applicant’s evidence his [Body Part 2] was also injured in the assault and [is] now scarred. He also said a bone was fractured in his [Body Part 1], but before coming to Australia he thought it was only a minor [Body Part 1] problem.
The Tribunal inquired of the applicant whether he spoke to any doctors at the hospital after he recovered consciousness. He said he did not, for the reason when he came out of the coma, he left the hospital almost immediately with his friend and returned to the [training camp]. There he continued training to qualify for selection to represent his [country], and to leave his country.
Additionally, the applicant said he discharged himself from hospital to avoid being found and harmed again by his uncle and the corrupt politician.
According to the applicant he returned to the training camp in Freetown and treated his injuries himself.[14] He was determined to qualify for the team and leave the country to protect his life. He fought through the pain and continued to train, compete and he successfully qualified for the [team]; by implication he achieved all of this without receiving any medical treatment, apart from self-treatment, for his continuing head and [Body Part 2] injuries, and the broken bone in his [Body Part 1].
[14] There is no evidence that the applicant has any training that would qualify him to effectively treat his own injuries.
According to the applicant’s oral evidence he qualified for the national [team] in January 2018 to compete in [Australia]; a relatively short time after he discharged himself from hospital after he asserts he was seriously injured and comatose for two days from [date] December 2017.
At hearing the applicant agreed that to represent his country as an [Occupation 1] is regarded as an honour, and that the competition for a place in the [team] was fierce. The applicant asserts in evidence that while self-treating his injuries, he trained and competed for selection. He said his friends knew he was in pain, and that he wore bandages or plaster.
The Tribunal has considered the applicant’s description of his injuries, including [a Body Part 2] injury that left scarring, [an injury] variously described as a broken or fractured [Body Part 1] bone which he thought was minor, an ongoing head injury so severe that it rendered him unconscious for two days and according to his oral evidence, distorted the shape of his [deleted], that he self-treated his injuries, and in the face of fierce competition for a place in the national [team], his performance was such that he qualified for the team despite his injuries.
On balance, the Tribunal is of the view that the applicant’s evidence about the nature of his injuries, considered in the context of his post-injury performance as a full-time [Occupation 1], training and successfully performing at a high level against his competitors, defies common sense, and that it is unlikely to be reliable. That, however, is not the end of the Tribunal’s consideration of the matter.
The applicant places reliance on three photographs of himself to support his claim that he was assaulted on [date] December 2017, and he would be harmed again by the uncle and unnamed politician if he is removed to Sierra Leone.
The images depicted in three photographs are unclear. The Tribunal accepts the applicant is depicted in each photograph. The applicant, after considerable hesitation, accepted at hearing that he wrote the notation on the photographs. One photograph appears to depict white bandaging to the applicant’s [Body Part 1]. The second photograph depicts a white area which is unclear, but the Tribunal accepts the white area of the photograph depicts bandaging around the applicant’s [Body Part 1]. The third photograph does not appear to depict any bandages.
In evidence the applicant said he took the photographs in a photobooth located [near the team’s accomodation]. The photographs were accompanied by a CD made by [an X-ray clinic] on [date] March 2018, two days after the applicant arrived in Australia.
The Tribunal accepts the applicant’s evidence that the images on the CD are of the applicant’s [Body Part 1], and they show a bone in his [Body Part 1] is broken.
According to the applicant, at training in Australia when he was doing [training] exercises, the pain in his [Body Part 1] was such that he reported it, and he was required to attend the [team’s] medical centre. He was advised to put ice on the troublesome area of his [Body Part 1]. The following day the injury forced him to attend the medical centre again. His [Body Part 1] was X-rayed. A bone fracture was diagnosed; consequently, the applicant was not fit to [compete]. The Tribunal accepts this evidence.
The applicant asserts the broken bone in his [Body Part 1] put him out of the [team] and it was caused by the thugs who bashed his father to death, bashed him into unconsciousness on [date] December 2017. The Tribunal finds this evidence to be unconvincing.
If the applicant’s evidence is to be accepted, while carrying a severe head injury, [a Body Part 2] injury that left scarring, and a broken bone in his [Body Part 1], he was able to train and [out-perform] fierce competition to win selection to the [team]. He then held his place in the team until he was training in Australia.
In the absence of medical evidence that indicates the [bone] fracture was of such a nature that it is reasonably possible the break occurred before the applicant arrived in Australia, and may not have adversely affected his ability to train and compete at a high level, as it did in Australia, and considering the Tribunal’s concerns about the reliability of the applicant as a witness, the evidence is insufficient to satisfy the Tribunal that the applicant’s [Body Part 1] was broken before he won selection for the [team] and before he arrived in Australia.
At hearing the applicant said he does not know the name of the politician who wanted to buy his father’s land, but he knows he is a member of the SLPP. According to the applicant, he has known since March 2016 that the uncle was trying to force the father to sell his land to a particular politician. It seems to the Tribunal to be unlikely the applicant would not have made it his business to know the name of the politician to whom his father was steadfastly refusing to sell his land. This being highly valuable land in which the applicant had a considerable interest, because it held a valuable deposit of iron ore, and other marketable assets, which the applicant asserts he has inherited from his father. There is no evidence the applicant made any such inquiries.
On balance, the evidence is insufficient to satisfy the Tribunal that the applicant was assaulted on [date] December 2017 by thugs acting at the behest of the uncle and an unnamed corrupt politician, or that he was assaulted at all on that date.
According to the applicant his friend, [Mr B] who lived at an unspecified address in Freetown, to whom he gave the land title documents his father entrusted to him for safe keeping, disappeared and cannot be contacted. There is no evidence that the applicant consulted his father before he handed the critically important land title documents entrusted to his custody, being proof of ownership of the land, to his friend.
It is reasonable to expect the applicant to provide evidence to support his claim that the land in question existed, and that it was owned by his father. It is reasonable to expect other family members such as the applicant’s auntie who he claims sent him the death certificate, would have knowledge of, and be able to provide some evidence of, the existence of and ownership of the land.
Relevantly, according to the email the applicant sent to the Tribunal with the impugned death certificate attached, the auntie who sent the document lives in Freetown, and the text of the email indicates several of the applicant’s aunties reside in Sierra Leone.
The Tribunal asked the applicant to state the address of the relevant land. His response was the land did not have an address. With some hesitation, the applicant then said the address of the land is [Town 1].
Considering the totality of the evidence, including the Tribunal’s findings concerning the applicant’s father, and the alleged assault on the applicant, and the Tribunal’s doubts about the reliability of the applicant as a witness, and the evidence as a whole, the evidence is insufficient to satisfy the Tribunal that the applicant’s father owned a parcel of land that the uncle and an unnamed politician were intimidating him into selling to the politician, and that they murdered the applicant’s father because he refused to sell or give title to the politician.
The applicant claims he would be harmed in his home country for the reason of his political opinion. He asserts he would be imputed with a political allegiance to and support for the APC party and therefore, an oppositional attitude towards the ruling party, namely the SLPP, the party of the corrupt politician who wants ownership of the land. In this regard, according to the applicant’s oral evidence, he is now the legal owner of the land.
There is no evidence the applicant was a member or supporter of the APC, or otherwise politically active in Sierra Leone or Australia. The applicant asserts his father supported the APC. This is a vague assertion lacking in specificity. There is no specific evidence that demonstrates the father participated in party political activities, or that he was a member or supporter of the APC.
Relevantly, the Tribunal is of the opinion the evidence is insufficient to establish to the satisfaction of the Tribunal, that an unnamed corrupt member of the SLPP, tried to force the father, through the agency of the uncle, to sell land to him, and after the death of the father, to force the applicant to surrender title of the land to the uncle.

100. Having considered the totality of the evidence, the Tribunal is not satisfied an unnamed corrupt member of the SLPP, or any State or non-State actor would impute to the applicant an anti-SLPP political opinion, if he were removed to Sierra Leone now, or in the reasonably foreseeable future.
Findings
101. Having considered the totality of the evidence, it is insufficient to establish to the satisfaction of the Tribunal the following matters:
·The applicant’s father was beaten to death on [date] December 2017 at the behest of the applicant’s uncle and an unnamed corrupt SLPP politician.
·That the applicant was assaulted on [date] December 2017.
·That the applicant’s paternal uncle [Mr A], sought to force the applicant’s father to sell a parcel of land to a corrupt SLPP politician.
·That the uncle threatened to harm the applicant, and that he tried to force the applicant to sell a parcel of land he inherited from his father to a corrupt SLPP politician.
·That the applicant believes, and that the applicant experienced suffering of any sort in Sierra Leone and Australia, resulting from the uncle inducing demonic forces to disrupt his sense of wellbeing, and more specifically, in Australia, to cause him to have an accident.
·The existence of a real chance or real risk an anti-SLPP political opinion would be imputed to the applicant if he were removed to Sierra Leone now, or in the reasonably foreseeable future.

102. Having considered the applicant’s claims individually and cumulatively, the evidence considered alone, and in conjunction with the DFAT report is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for the reason of imputed political opinion, his membership of a particular social group, namely persons targeted for exploitation by corrupt politicians or relatives, or for any other reasons specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to Sierra Leone now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
103. Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection
104. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
105. A person will meet that criterion if there are ‘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’.
106. Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.

107. The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
108. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
109. In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, at [246], [297] and [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Sierra Leone now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.
110. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.

In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.
There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.

113. Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
DECISION
114. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4521

17 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Standing