1821072 (Refugee)

[2023] AATA 644

1821072 (Refugee) [2023] AATA 644 (27 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821072

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Peter Papadopoulos

DATE:27 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 27 January 2023 at 10:37am

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion – supporter of opposition political party through specific activity group – threats from high-profile candidate, national officials and some group members supporting government party, and gang attacks on some group members – political influence on police – capacity to subsist – credibility – inconsistent, exaggerated and misconstrued claims and evidence about activities and profile – country information – decision under review affirmed

LEGISLATION
Migration Act 1959 (Cth), ss 5AAA, 5J(1), 36(2)(a), (aa), 65, 418

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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. The applicant is a [Age]-year-old man who claims to be a national of Sierra Leone.

2. The applicant arrived in Australia [in] March 2018 as the holder of a [Specified] visa and has not departed since that date.

3. On 9 May 2018, he applied for a Subclass 866 Protection (Class XA) visa (protection visa).

4. On 10 July 2018, the delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.

5. This is an application for review of the delegate’s decision.

6. The applicant attended a Tribunal hearing on 14 December 2022.

7. The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection.  The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.

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

   Claims and evidence

   Claims and evidence provided to the Department

   Protection visa application

9. According to the information contained in his passport, the applicant is a [Age]-year-old man born in Sierra Leone.

10. Based upon information contained in his protection visa application form, his family members include his mother [Ms A] (born [Date 1]), sister [Ms B] (born [Date 2]) and step-brother [Mr C] (born [Date 3]). Additionally, the applicant is in a de facto relationship with [Ms D] (born [Date 4]) and has a step-daughter named [Ms E] (born [Date 5]). Since arriving in Australia, the applicant claims to have remained in contact with his de facto partner on a weekly basis by way of telephone. 

11. The applicant is of Limba ethnicity and identifies as a Christian. He has been employed as [an Occupation 1] and as the national [Specific activity 1] [Occupation 2] of Sierra Leone. He completed his primary and secondary schooling in Freetown between [Year 1] and [Year 2]. Between [Year 3] and [Year 4], he studied [Subject] at [Institution] in Sierra Leone.

12. In support of his protection visa application, the applicant provided the following supporting evidence to the Department:

    a.The applicant’s Sierra Leone passport ([reference]) issued [in] 2017.

    b.The applicant’s [Event] identity and [group] official pass.

    c.Various photographs including photographs of:

    i.Undated WhatsApp messages purportedly from [a phone number].

    ii.A man in a wheelchair who was allegedly stabbed following the announcement of a result. Another photo shows the man posing with two other [Specific activity 1 participants] when unharmed.

    iii.A medical certificate for [Mr F], a [Specific activity 1 participant], who was admitted to hospital for a for a “penetrating abdominal injury” on [Day 1] April 2018 and discharged on [Day 2] April 2018.

    iv.A man on what appears to be a hospital gurney receiving treatment.

    v.Many people attending a campaign for the All People’s Congress (APC).

    vi.A small group of people allegedly holding a campaign meeting with [Mr G], the [Official] of [Specific activity 1 national organisation] and the [National official].

    d.The applicant’s photo ID for the group ‘[Specific activity 1 group]’ which contains the logo for the APC party.

    e.The applicant’s APC membership card declaring the applicant to be an ‘ordinary member’. Membership [number].

13. In his protection visa application form, the applicant made the following claims (in summary):

    a.He was part of the Sierra Leone [Specific activity 1] Group. They campaigned for the All People’s Congress (APC) against the Sierra Leone People’s Party (SLPP).

    b.The SLPP won the election in March 2018.

    c.Members of the SLPP have violently attacked members of his [Specific activity 1] group. His friend was stabbed by SLPP gangs. He is afraid these gangs will attack him.

    d.He is the national [Specific activity 1] [Occupation 2] so he is well-known. He is scared that the SLPP gangs will attack him.

    e.He thinks he will be killed by the SLPP gangs. The SLPP gangs have threatened to kill him when he returns. SLPP sent him a text message and said “we are waiting for you at anytime and anywhere we see”.  He will be attacked at the airport as they want to kill him when he returns. He will be attacked as soon as he returns to Sierra Leone. He is afraid for his safety at the airport.

    f.While he was in Sierra Leone, he was not harmed but the SLPP took power on 5 April 2018 after he left Sierra Leone, and if he returns now, he will be harmed because he and others formed a group of [Specific activity 1 participants] to campaign against them and they promised to harm and kill them if they win the presidential election.

    g.He praised God that he was not in the country before they announced the results of the presidential election. He was here in Australia when the final election results were announced. Even if he was in the country he would not be able to seek help from anywhere because the SLPP would attack him by surprise. He would not be able to seek help from anybody; even the police cannot help him because the SLPP gangs that are looking for him are well connected with the authorities.

    h.He did not feel safe in any part of Sierra Leone as the SLPP gangs are everywhere and they can attack people at any time.

    i.If he returns to Sierra Leone he will be killed, stabbed by machete by the SLPP gangs because he was part of the Sierra Leone [Specific activity 1] Group and he campaigned against the SLPP. The authorities cannot protect him as the SLPP is in power and has connections and influence in the government and police. Even though he is [an Occupation 1], he does not trust the authorities to protect him.

14. On 18 May 2018, the applicant provided the Department with an additional statement. In summary, he stated:

    a.The following may not be a complete account of the reasons why he may suffer harm in his country of origin, and does not contain all of the relevant details of those reasons. If the Tribunal has doubts about his eligibility for the visa he has applied for, please draw his attention to the reasons for this and ask him any relevant questions. He is available to provide any information beyond what is set out in this statement.

    b.He fears that if he was forced to return to Sierra Leone, he would be seriously harmed because of his involvement in the campaign for the APC which was in opposition to the SLPP.

    c.He fears this harm from the SLPP gang members.

    d.He notes that his case is very similar to those of his friends, [Mr H] and [Mr I]. As explained below, they also travelled to Australia with him, and he knows that they are also seeking protection in Australia due to their fear of harm for the same reasons that he fears harm.

    Background and history

    e.He was born in [Town] on [Date 6]. He is Sierra Leonean and Christian. He is in a de facto relationship with his girlfriend. Her name is [Ms D] born on [Date 4]. He has one step-child named [Ms E] born on [Date 5]. He is the national [Occupation 2] of the national [Specific activity 1 group] for Sierra Leone. He is also [an Occupation 1]. He is involved in the [Specific activity 1] unit of [Employer] however when he is called upon, he works as [an Occupation 1].

    Problems in Sierra Leone

    f.[Mr G], who was at that time a [National official] as well as the [Official] of [Specific activity 1 organisation], requested that the [Specific activity 1 group] create a group that would advocate the APC in the hopes that if the party was successful, [Specific activity 1] in Sierra Leone would improve by way of new equipment, training opportunities overseas, allowances, etc.  [Mr G] told all [Specific activity 1 participants] to campaign alongside APC. Not all [Specific activity 1 participants] agreed and the group became divided along party lines; pro-APC or pro-SLPP.  The applicant chose to be a campaigner for the APC.

    g.“[Specific activity 1 sub-group] was a group that formed to campaign for APC in opposition to the SLPP. [Specific activity 1 sub-group] members were loyal to [Mr G] and stood beside him in the campaign for APC.  As [Activity participants], they were popular and held strong influence on the outcome of politics because they were known to the public. [Mr G] used their [Activity participant] status to push the political gain of the APC.

    h.They were continuously advised that if the SLPP won the election, SLPP gang members would harm all [Specific activity 1 participants] who supported the APC.

    i.The [Specific activity 1 participants] in their [group] usually meet in the [Specific activity 1] [facility] at the [Venue] where they [participated] together. Recently, pro-SLPP [Activity 1 participants] have begun [participating] separately to pro-APC [Specific activity 1 participants] due to the political tensions.

    j.Four members of the [Specific activity 1] [group] were selected to represent Sierra Leone at the [Event]. When they came to Australia, three of them were APC supporters ([Mr H], [Mr I] and himself). [Mr J] was the fourth person and he was a strong supporter of the SLPP. He returned home to Sierra Leone following the [Event]. When they were in Australia and the results were released for the runoff elections, [Mr J] would often quarrel with the applicant, advising that the three of them best not return home because the SLPP gangs will kill them. The applicant said [Mr J] warned him against creating the ‘[Specific activity 1 sub-group]’ group, and already members of that group are being attacked.

    k.He, [Mr I] and [Mr H] are the main people they want to attack and harm, as they hold strong positions in [Specific activity 1 organisation] and are well-known to the public in general. Because of this, [Mr J] warned him that if they returned he would not protect them and their fate would surely be sealed. He would fight with [Mr J] saying “I am the head [Occupation 2] I will return home, they will do nothing to me” but [Mr J] would laugh and say “it is out of your control now” [because of the election loss to the SLPP].

    l.An example of the danger they face is after the day they announced the runoff elections, a fellow [Specific activity 1 participant] named [Mr F] from their [Specific activity 1 group] who supported the APC was attacked by gang members back in Sierra Leone. The SLPP gangs approached his house, pretended to be someone else and upon opening the door, they stabbed his chest. He was transported to the hospital where he stayed for a number of days. The significance of this is that he is one of the [Specific activity 1 participants] who stayed back in Sierra Leone and because he was a supporter of the APC, he was attacked.

    m.In the time of the campaign, prior to the [Event], those that agreed to campaign against SLPP were actively campaigning on the ground – moving from house to house, place to place, to speak to the people especially the youth to vote for APC. They were talking about the political party and what APC will bring to Sierra Leone in general.

    n.The general elections took place on 7 March 2018. The run-off took place on 31 March 2018.

    o.As [Occupation 2], he would [do Occupation 2 with] SLPP members as the [facility] is open to everybody and he did not discriminate on who he would [do Occupation 2 with]. Therefore, he would know what they would say about the APC supporters and what they would do to them when the SLPP win the elections.

    p.Around 6 or 7 March 2018, he received a call from a friend in the [Specific activity 1 sub-group], who advised him that [Mr K] ([Specific activity 1 participant] who was involved in APC campaigning) was shot with a “Traditional Witch Gun” which paralysed him. If [Mr K] was not treated immediately, he would have died within one to two weeks. Witch gun wounds can only be treated with traditional medicine as no scans would detect the effects of it. This is the common weapon of choice of the SLPP gang members.

    q.Another specific instance involves [Mr L], another member of the APC [Specific activity 1] group campaigners who stayed back in Sierra Leone. Because of his association with the APC and his campaigning with the group, after the announcement of the final result of the run-off elections, they fulfilled their promise of attacking the APC [Specific activity 1 participants] campaigning in the group and chased him at night from his house. [Mr L] ran away to escape from them, but when he approached a fence, he climbed it to escape them and fell. As a result, he broke his arm and fell unconscious. He attached a photo of [Mr L] at the hospital with a cast on his arm.

    r.They have been repeatedly threatened by SLPP gang members. He has attached a photo of a text message received from the SLPP gang member by [Mr H], which stated that his family and him would pay for “what [he] did” and the only thing saving [Mr H]’s life is the fact that he is outside of the country. It noted that he would kill [Mr H] and will find his wife. He considers that this is typical of the kinds of threats and harm that all of them could expect if they returned to Sierra Leone.

    s.The SLPP president’s [relative], [Mr M], is a [Specific activity 2 participant] (well known in Sierra Leone) and is aspiring to be a member of the parliament. Because he and others campaigned against [Mr M] strongly, he lost the seat. However, he threatened that if his [relative] won the elections, he would eventually destroy them. Because he is a [Specific activity 2 participant], he was aware of those in the [Activity] industry and therefore is able to identify them very easily. He is a part of the SLPP gang and is surely waiting for their return to harm them.

    t.SLPP gangs would not suffer any consequences if they harmed or killed any APC member because of their influence in the police, military and politics.  Retired military and police officers who would support the SLPP group would join the SLPP gang.

    u.When SLPP came into power the members who were in the police force kicked out those policemen who were supportive of APC and brought in their own SLPP members. This is problematic as it posed a danger to anyone who was affiliated with APC.

    v.The Commandant, AIG (Assistant Inspect General) commander of the operational division of the police force, Titi Kamara, was forced to retire as soon as the SLPP took power and his deputy was also removed from his position. If they would bring down a policeman of Titi’s ranking, the applicant could only imagine what they would do to him. No one would be able to defend him – neither the police nor the government.

    w.When an SLPP member commits a crime such as stabbing or killing, he knows that when the police are called, they will either advise there is nothing that they can do (because of the SLPP influence), or at most they will take the offenders into custody but police officers who are party to the SLPP will call for the commandant [who is SLPP-affiliated], who will advise they have an interest in the offender and he would eventually be released with no charges.

    x.When the SLPP came into power, they immediately swapped out all those who supported the APC and put in SLPP members. They killed the chief military officer because of his strong support of the APC. It was the past president (APC) who put him in that power. So, when SLPP came into power, they killed him in his own home. The police force stated that they are “still investigating” but [police officers] know that this means that is the end of the matter. Phone calls were made by the high ranking SLPP officers and the case was closed simply because someone has an interest in the offender.

    y.He is not happy about his current situation. He wishes he could return, as he was just recently named national coach of Sierra Leone and he has the opportunity to go to anywhere around the world. He is a very good [Specific activity 1 Occupation 2] and [Specific 1 activity participant] but he is now stuck away from his home.

    Fears if he returns to Sierra Leone

    z.If he is returned to Sierra Leone, he is afraid that he will be subjected to serious harm including discrimination, stabbing, shooting or killing because of his political opinion in support of the APC and his past activities. He is more at risk from this because of his high profile as a sportsperson, and the fact that he would be returning from Australia after receiving these specific threats and having sought protection in Australia.

    aa.He is afraid of this harm from the SLPP gang members, as well as their allies in the government of Sierra Leone.

    bb.He has already experienced threats from SLPP gang members by way of verbal threats while campaigning for APC while in Sierra Leone, from [Mr J] while in Australia and via text messages to [Mr H] while in Australia.

    cc.He could not relocate to any other part of Sierra Leone because SLPP are in control of the whole country and everyone knows of him because of his high status in the [Specific activity 1] community and public in general.

    dd.He is afraid that he would not be protected by anyone, including the authorities, because the SLPP have infiltrated all areas of government and policing and will not prosecute any SLPP gang-related violence.

    Protection visa application interview

15. The applicant attended an interview with the Department in connection with his protection visa application on 14 June 2018.  The interview was conducted with the assistance of an interpreter in the Krio and English languages.  Where relevant, the oral evidence of the applicant given at the Department interview is discussed in the Tribunal’s findings and reasons below. 

    Summary of the delegate’s decision

1. On 10 July 2018, the delegate refused the applicant’s protection visa application. The applicant did not provide the Tribunal with a copy of the delegate’s decision.

2. Pursuant to s 418 of the Act, the Department provided the Tribunal with a copy of the delegate’s decision which can be summarised as follows:

   ·     The delegate accepted the identity of the applicant as claimed, and that he is a [Specific activity 1 Occupation 2], and political parties in Sierra Leone may consider that recruiting [Activity participants] for campaign activities may be an effective method of engaging with voters, particularly younger voters.

   ·     The delegate accepted that the applicant may be a member and supporter of the APC and was involved with a [Specific activity 1] group which campaigned for the APC in the 2018 election campaign.  However, the delegate was not satisfied that the incidents raised by the applicant at interview indicate that there are ongoing acts of serious harm being perpetrated against ordinary APC supporters because of their political opinion and election campaign activities.

   ·     The delegate considered independent country information concerning the Sierra Leone elections on 7 March 2018, including that there was some violence in both the lead-up to the election and following the announcement of the election results. However, the delegate was unable to locate information indicating that low or middle level APC supporters/members/campaigners have been targeted for harm in May and June 2018.

   ·     In relation to photographic evidence which corroborated the applicant’s claims of [Specific activity 1 participants] being stabbed and hospitalised, the delegate was not satisfied that the images provided were of [Specific activity 1 participants] associated with him who had been violently attacked because of their support for the APC.

   ·     With respect to the images of messages the applicant claimed to have received, the delegate considered that messages of that nature were easily contrived and could not be validated without further evidence. Nor was the delegate able to find any independent information to corroborate the applicant’s claims with respect to his friend, [Mr N], who he claimed had been killed recently.

   ·     The delegate could not find reports of political violence continuing after the elections and for this reason was not satisfied the applicant faced a real chance of harm upon his return to Sierra Leone. In making this determination, the delegate considered claimed attacks against the applicant’s friend [Mr N], the death of the APC Zonal Chairman Mr Abu Bakarr Kamara on 26 May 2018 and the attacks on the newly elected Mayor of Freetown, Yvonne Aki Sawyerr who was verbally and physically assaulted outside the Freetown City Council offices in May 2018. 

   ·     The delegate further considered whether the applicant would face harm because he was a Sierra Leonean [Activity participant] who had absconded from his [Activity group] and stayed in Australia to seek protection following [an] event but concluded there was no evidence to suggest this was a possibility.

   ·     Ultimately, the delegate concluded the applicant would not face serious harm in Sierra Leone because of his support for the APC or because he had sought protection in Australia following the conclusion of the [Event], and therefore, the applicant did not meet the refugee criterion in s 36(2)(a) of the Act. For the same reasons, the delegate found the applicant did not face a real risk of suffering significant harm and thus, did not meet the criterion for complementary protection under s 36(2)(aa) of the Act.

   Claims and evidence provided to the Tribunal

   The review application

3. On 20 July 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant was not represented in connection with his review application. 

   Pre-hearing submissions and evidence

4. The applicant did not lodge any submissions or evidence with the Tribunal prior to the hearing.

   The hearing: supporting documents and oral evidence

5. The applicant appeared before the Tribunal on 14 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.  Where relevant, the oral evidence of the applicant at hearing is discussed in the Tribunal’s findings and reasons below. 

6. Prior to the hearing, the applicant requested the Tribunal take oral evidence from two witnesses in Sierra Leone, namely [Mr G] and [Mr J].  At hearing, the applicant advised the Tribunal that neither of these witnesses had been forewarned that the Tribunal would be contacting them during this hearing for the purpose of taking oral evidence to support his case. The Tribunal then attempted to telephone each of these witnesses during the hearing but they did not answer. Accordingly, the Tribunal advised the applicant that it was prepared to accept written statements from each of these witnesses and would consider all material provided by the applicant before a decision was made in his case.

   Post-hearing submissions and evidence

7. On 9 January 2023, the applicant provided the Tribunal with a copy of an undated but signed letter from [Mr G] in support of the protection visa applications made by Sierra Leonean [Specific activity 1] in [Country], Europe and Australia including the applicant and two other [Specific activity 1 participants] in Australia.  Relevantly to this case, the letter read in part as follows:

   CLARIFICATION ON THE ISSUE OF PROTECTION IN RESPECT OF MY THREE [Specific activity 1 participants]: [THE APPLICANT], [MR I], AND [MR H]

   WITH REFERENCE TO THE ABOVE SUBJECT MATTER, I HEREBY WRITE TO STATE THAT, THE POLITICS HAS ENGULF THE [Specific activity 1 national organisation] IS UNPRECEDENTED, AND SCARING TO ALL OF US.  THE GOVERNMENT IS DOING ALL IT CAN, BUT STILL THE SITUATION REMAIN VERY PRECARIOUS.  GANG VIOLENCE HAS INCREASE AND GANGS ARE EVEN THREATENING OUR [Specific activity 1 participants] IN [COUNTRY], EUROPE AND AUSTRALIA.  IT IS AGAINST THIS BACKDROP THAT I AM TO ADVISE MY [Specific activity 1 participants] TO SEEK PROTECTION IN ANY COUNTRY THAT THEY FIND THEMSELVES NOW INCLUDING [Specific activity 1 participants] IN AUSTRALIA.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nationality: Country of reference/receiving country

8. The applicant claims to be a citizen of Sierra Leone and provided to the Department a copy of his Sierra Leonean passport issued [in] 2015.  The delegate was satisfied that the applicant was using his own identity and documents.  In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sierra Leone. The Tribunal accepts that Sierra Leone is his receiving country for the purpose of assessing his claims for protection.

   Credibility

9. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters.  In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant.  Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

   [1] MIMA v Rajalingam (1999) 93 FCR 220

   [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

10. The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed.  Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3]  Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim.  The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims.  Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim.  It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision.  There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4] 

    [3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169–170

    [4] Sun v MIBP [2016] FCAFC 52 at [69]

11. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the applicant’s evidence. 

12. In the present case, the Tribunal takes into account the applicant’s evident lack of familiarity with the Tribunal setting and his limited English language proficiency.  With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.

13. The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility.  However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.

14. The Tribunal formed the impression that the applicant’s protection claims drew on incidents and experiences that he had in Sierra Leone, but that he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection. The Tribunal’s full assessment follows.

    Independent information

15. In March 2018, the opposition SLPP candidate, Julius Maada Bio, won the presidential election in a second-round run-off. In the 2018 parliamentary election, the APC retained its majority in parliament. Following a High Court decision in May 2019 to remove ten APC members of parliament for allegedly violating electoral laws during the election campaign, and replace them with nine SLPP members, with the tenth to be chosen through a by-election, the SLPP became the largest party in parliament. In March 2021, following a by-election, the SLPP held 59 seats in parliament and the APC 58 seats. In June 2021, it was reported that the SLPP may have lost its majority in parliament after the National Electoral Commission declared an SLPP Member of Parliament the newly elected Paramount Chief of Sambaia Chiefdom.[5]

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

16. The US Department of State (USDOS) report on human rights practices in Sierra Leone for 2020 states that ‘Sierra Leone is a constitutional republic with a directly elected president and a unicameral legislature’.[6]  The report continues:

    In March 2018 the opposition Sierra Leone People’s Party [SLPP] candidate, Julius Maada Bio, won the presidential elections. In January 2018 parliamentary elections, the All People’s Congress [APC] won a plurality of the seats. After the December 12 election re-run and by-elections, the Sierra Leone People’s Party and the All People’s Congress each held 58 seats. Observers found these elections to be largely free and fair.[7]

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

    [7] Ibid

17. Other credible sources also reported on the assessment that the elections were found to be largely free and fair. For example, the 2021 Freedom House report[8] and the BTI 2020 country report on Sierra Leone.[9]  The BTI report also indicated, however, that in mobilising the electorate, ‘both parties resorted to exploiting existing ethno-regional divides within the country… As in the past, political mass support was generated by accentuating ethnicity rather than presenting competing political visions and programs. This resulted in the deepening of societal antagonisms and contravened the peace consolidation processes’.[10] 

    [8] ‘Freedom in the World 2021 - Sierra Leone’, Freedom House, 2021, A1, pp.2–3, 20211001084356

    [9] ‘BTI 2020 Country Report Sierra Leone’, Bertelsmann Stiftung, 29 April 2020, p.3, 20200430165835

    [10] Ibid

18. The BTI report further states that ‘[o]rganized violence remained at a fairly low level during the review period [from 1 February 2017 to 31 January 2019], but the potential for mass violence remains high’.  Antagonism between the APC and the SLPP had ‘led to violent clashes in the run-up to the general elections in March 2018. This was not unexpected. Despite an agreement to prevent violence between supporters of each party, signed by both parties in 2009, their radicalized youth organizations are prone to the use of violence’.[11]

    [11] Ibid. p.25

19. An April 2018 article in The Economist refers to ‘[t]ensions based on ethnic, political and regional divisions’ simmering throughout the 2018 election campaign. When the result was announced, ‘[s]upporters of Mr Bio’s Sierra Leone People’s Party (SLPP) attacked followers of the APC, which previously held the presidency. Much of the violence’ had ‘taken place in the SLPP’s southern strongholds. But more than 100 people’ had ‘also fled Kono, a volatile swing state in the east’.[12]

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

20. A number of by-elections have been held since the March 2018 elections, helping the SLPP consolidate its power.[13] The practice of importing groups of youth/thugs to intimidate and harass communities prior to by-elections has occurred in recent years. Publicly, the APC and SLPP tend to blame incidents of low-level violence on each other.[14]

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

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

21. The USDOS report on human rights practices in Sierra Leone for 2020 indicates that the non-governmental organisation (NGO) the Center for Accountability and Rule of Law, reported there were clashes in Freetown between supporters of the APC and SLPP in January 2020. In an incident on 27 January 2020, ‘27 persons were reportedly wounded. Police arrested 19 persons after the clash; all were later released on bail’.[15]

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

22. A July 2020 US Overseas Security Advisory Council crime and safety report on Sierra Leone states that ‘[p]olitical violence is sporadic and normally increases during election periods’. The report also states that ‘[p]olitical demonstrations and rallies are generally peaceful, but sporadic clashes do occur, often instigated by individuals within the crowds. Participants at political rallies are easily incited and may use weapons of opportunity, including sticks and rocks. Strong rivalries exist in Sierra Leone; participants at large demonstrations can become aggressive toward one another and the police. The police deploy crowd-control techniques, including the firing of warning shots and use of tear gas’.[16]

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

23. An October 2019 article from African Arguments indicates that in the 18 months since the general election, Sierra Leone had held by-elections that had ‘been marred by political violence and accusations of malpractice’. The article refers to the comments of Marcella Samba-Sesay from the Campaign for Good Governance, who said that by-elections in Sierra Leone had ‘become battlegrounds for “a [wider] fight between the APC and SLPP that permeates every space in society, including state institutions”’.[17]

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

24. In May 2020, it was reported that over the previous few weeks, sporadic violent clashes had occurred in parts of Sierra Leone, ‘leaving over a dozen people dead, many hospitalised and property destroyed. Reasons for this unrest are unknown but have been widely attributed to coronavirus restrictions’. In an address to the nation, ‘President Bio accused the main opposition, APC, of aiding and abetting the violence by financing, planning and inciting crimes he labelled as “terrorist attacks”’.[18]  The government said the unrest was ‘part of a calculated plot by the APC to fulfil a threat by its defeated candidate in 2018 elections to make the country ungovernable’.[19]  The APC denied the accusations.[20]

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

    [19] ‘Sierra Leone president accuses opposition of ‘terrorizing’ state’, Daily Nation - Kenya, 9 May 2020, 20200511104901

    [20] ‘Sierra Leone’s president accuses main opposition party of inciting violence’, Reuters, 10 May 2020, 20200619104919

25. Observers said ‘that accusing the main opposition in such strong terms’ would ‘only aggravate the political tension’ that had ‘been brewing’. This came ‘off the back of the arrests and detention of high-profile former ministers in the APC administration’, including ‘Alfred Paolo Conteh, a retired major and former minister of defence, who was accused of treason as well as possession of undeclared weapons. Another arrestee is Sylvia Olayinka Blyden, a journalist and politician who served as former minister of social welfare, gender and children’s affairs, who was arrested for incitement and subversion, according to the Sierra Leone Police’.[21]

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

26. Media articles indicate that the SLPP and APC tend to blame politically motivated violence on each other.[22] 

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

27. In its February 2022 country report on Sierra Leone, Bertelsmann Stiftung indicate that there are on-going risks of violence surrounding elections when parties appeal to ethno-regional divide (tribalism) which is typical.[23]  This risk extends to by-elections and re-run elections. A number of by-elections, re-run elections and paramount chieftaincy elections took place during the reporting period and more are scheduled for 2021. In a hotly contested by- election in Constituency 110, Freetown Peninsula, in December 2020, which was overshadowed by violence and allegations of fraud, the APC candidate won.[24]

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

    [24] Ibid., p.10

1. Bertelsmann Stiftung report that ‘[i]mpoverished youth are particularly prone to political indoctrination and instrumentalization’ and that an ‘enduring lack of socioeconomic opportunities may tempt desperate young men to resort to violence’.[25]

   [25] Ibid., p.35

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

   By early 2020 Sierra Leone found itself at levels of political violence that were higher than at any time since the end of the war. Some months in 2018 and 2019 show levels of political violence that are comparable with periods during the civil war.[26]

   [26] ACLED, When Emerging Democracies Breed Violence – Sierra Leone 20 years after the civil war, 2020, available at: ndael_WANEP-SL_2020webpub.pdf, p.10

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

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

   A third category of perpetrators are militias and members of the SLPP and APC. It is an open secret that both the SLPP and APC have well-developed security outfits orbiting both parties since at least since 2007, when high-ranking commanders from all former warring factions were recruited into political parties. Party militias are divided into various branches. Ex- combatant commanders generally are on top of the hierarchy, serve as close protection units to party leaders, and run paid and relatively professional party intelligence systems. Next to them are semi-institutionalized militias around the party offices, headed by some notorious leaders who are directly deployable when needed. Orbiting around these militias are large groups of party supporters, more or less experienced in using violence, who move in and out of these semi-institutionalized militias and can be called upon in times of need. Finally, there are specific groups to each party that in varying degrees can control violence. The SLPP has, in addition to its militias, a very large defensive and well-organized structure called the “Benghazi Unit” or “Party Marshalls.” This structure has a presence throughout the country and consists of older ex-combatants, among others.[27]

   [27] Ibid., pp.15–16

4. By way of recent example of political violence in Sierra Leone, on 10 August 2022, a protest about the cost of living spiralled into deadly clashes between security forces and young men calling for President Bio to resign.  Violence erupted and official reports indicate that 27 civilians and six police officers were killed.  In the days following the protest, police conducted raids on “hideouts for perpetrators”.  According to police, during one such raid in Makeni, Hassan Dumbuya (also known as Evangelist Samson) was killed in crossfire.  Hassan Dumbuya was a prominent APC member and social media influencer and the APC has called for an independent probe into his death.[28] 

   [28] Department of Home Affairs, Standard Q & A Report, Sierra Leone: 20221111104133 – Political Violence (6 December 2022)

   Assessment of claims

5. The applicant fears that he would be subjected to serious physical harm and killed if he returns to Sierra Leone because of his campaigning for the APC and role in [Specific activity 1 sub-group]. He believes that he will be targeted as he is well-known in Sierra Leone because of his [Specific activity 1] career success and his profile as [an Occupation 1].  He fears that if he returns to Sierra Leone his life will be in danger from SLPP gangs as they will attack him with a witch gun[29] or machete.

   [29] Superstitious belief in “witch gun” is common among the peoples of Guinea and Sierra Leone. The belief is that people can shoot and kill others spiritually using this “weapon".  Most often cases of mysterious or premature deaths are attributed to “witch gun” attacks.  For instance, a young person who dies suddenly or a middle-aged person who collapses and dies without showing any sign of sickness or a powerful and successful person who dies after a brief illness. These are often incidents categorised as unnatural deaths arising out of instances of misfortune believed to be caused by enemies using a “witch gun”.  For further information about “witch gun” belief and practices in Sierra Leone, see Igwe, L., “’Witch Gun’ and Superstition in Guinea and Sierra Leone”, Sahara Reporters, 7 September 2013

6. On the basis of the documentation before it, the consistent evidence of the applicant across his application and at hearing, the Tribunal accepts that the applicant is a [Age]-year-old man who lived in Sierra Leone immediately before travelling to Australia.  The Tribunal also accepts that:

   ·     his family composition is as specified in his protection visa application form

   ·     he is of Limba ethnicity and is a Christian

   ·     he was a [Specific activity 1 participant] who joined [Employer] in Sierra Leone in or around 2012 where he primarily helped [do Occupation 2 with] [Employer]’s [Specific activity 1 group] and eventually became a [Specific activity 1 Occupation 2] for the Sierra Leone’s 2018 [Event group].

7. In determining whether the applicant would suffer persecution involving serious harm on return to Sierra Leone due to his association with the APC, the Tribunal has considered the applicant’s evidence about his involvement in campaigning for the APC as part of the [Specific activity 1 sub-group].

8. The Tribunal explored the applicant’s knowledge and involvement with the APC. Overall, the applicant appeared to have a basic knowledge of matters associated with the APC insofar as they related to his own interests. He stated that he became a member of the APC in October 2017 on the request of [Mr G].  He believed that by joining the APC this would enhance his prospects of advancement and other opportunities in his career as a [Specific activity 1 Occupation 2].  He was also able to speak about the campaigning activities of the [Specific activity 1 sub-group] in support of the APC in the lead-up to the 2018 election. The Tribunal accepts aspects of the applicant’s detailed evidence at hearing as credible and accepts that he undertook [Specific activity 1] demonstrations as part of the [Specific activity 1 sub-group] group between November 2017 and March 2018 in order to promote the APC, particularly among youth.  There was an expectation that he advocate for the APC through his participation in the [Specific activity 1 sub-group] group and the Tribunal accepts that he may be identified as an APC member, supporter and campaigner in some communities through this engagement.

9. On this basis, the Tribunal accepts the applicant was part of the [Specific activity 1 sub-group] which campaigned for the APC against the SLPP in the lead-up to the 2018 election.

10. The Tribunal has considered the evidence before it and finds that the applicant promoted the APC in his role as a member of the [Specific activity 1 sub-group] group in the lead-up to the 2018 election, and in this capacity, he had some profile in the community as an APC supporter and campaigner.

11. However, the Tribunal is less convinced about the applicant’s claims regarding the level and profile of his political activism on behalf of the APC.  The Tribunal notes the applicant had never been politically active prior to November 2017.  The Tribunal also notes that the applicant has not been politically active since his arrival in Australia in March 2018.

12. At hearing, the Tribunal sought to explore the nature and degree of the applicant’s political campaigning.  The applicant claimed that his political activity involved the promotion of the APC between November 2017 and March 2018 whereby he attended public [Specific activity 1] demonstrations with other [Specific activity 1 participants] and promoted the APC at those events.  At his interview with the delegate, the applicant stated he campaigned between one and three hours every day for the APC in “dangerous areas” of Freetown including St John, Lumley and Mountain Courts. However, at hearing he stated that he had campaigned for the APC about two or three times per week and would only do so in the “safe areas” of Freetown including those suburbs in Constituency 126 around the National Stadium such as Brookfields, Wellington and Kroo Town Road.  The Tribunal put the inconsistency in this evidence to the applicant who provided the following explanation:

    All those places that you named are in the city. We have areas with a danger zone. We have areas which are safer. But all those areas are near my area. They are around my area. Like Lumley. These areas are my area. Lumley is a danger zone.

13. While the Tribunal is prepared to accept the possibility that all areas of Freetown may be described as safe and dangerous depending upon the various zones within an area, it remains that the applicant gave no explanation in relation to the inconsistent evidence he gave relating to the frequency of his campaigning.  On this basis, the Tribunal has serious doubts in relation to the reliability of the applicant’s evidence pertaining to the degree of his APC campaigning activities. 

14. At hearing, the Tribunal then sought to further explore the nature and degree of the applicant’s political activism apart from campaigning.  The applicant showed the Tribunal that he belonged to a WhatsApp chat group where people discussed current issues in Sierra Leone.  With the applicant’s permission, the Tribunal inspected the applicant’s mobile telephone and raised with him that the group had been created on 29 August 2020, that he was added to the group on 2 January 2021, that there had been a steady stream of people removing themselves from the group and that his only post to the group was where he simply forwarded a video (which the Tribunal was unable to play because it had been deleted) and posted a meme showing a picture of a couple.  The Tribunal suggested to the applicant that this group largely involved people forwarding messages and videos containing general information about the chiefdoms in Sierra Leone and other Sierra Leonean news.  The applicant did not contest the Tribunal’s characterisation of this WhatsApp chat group.  The Tribunal regards this WhatsApp group to be a group of persons with no apparent political alignment or persuasion.  The Tribunal also notes that the applicant is not an active member of this WhatsApp group and that he has not posted any political commentary in this chat group feed. On this basis, the Tribunal finds that the applicant has never engaged in campaigning or otherwise promoting the APC in other fora such as social media.

15. Taking into account the fact that the applicant has only promoted the APC in a space of about four months prior to his departure from Sierra Leone in March 2018 and has not engaged in any political activities since arriving in Australia, the Tribunal is not satisfied the applicant held a high-profile role in the APC or would be recognised as having ever held a high-profile role in the APC.  While the applicant did promote the APC in the lead-up to the 2018 election by encouraging youth in Freetown to support the APC after having performed at a number of [Specific activity 1] displays, he did not address APC supporters on political issues in public fora. 

16. The Tribunal does not accept that because he was a [Activity 1 participant] and the [Specific activity 1 Occupation 2] of the [Specific activity 1 group] during the 2018 [Event] that this would make him of great renown in Sierra Leone such that he would be regarded as having held a prominent leadership role in the APC or an influential APC supporter or campaigner. On this basis, the Tribunal does not accept the applicant was a key member of the APC or a strong figurehead of the APC.

    Political violence

17. On the documentary evidence before it, the Tribunal accepts that the applicant came to Australia as a member of the Sierra Leone [Event] [Specific activity 1 group] and attended the [Event] [in Location] in [2018]. The Tribunal accepts that while the [Event was] taking place, the SLPP, the opposing party to the APC, was narrowly successful in gaining government in the 2018 general elections, and the new SLPP President, Julius Maada Bio, was installed.

18. In determining whether the applicant would suffer persecution involving serious harm on return to Sierra Leone due to his association with, and promotion of, the APC as accepted above, the Tribunal has considered the applicant’s evidence that:

    ·     [Mr M] threatened the applicant in Sierra Leone because he refused to campaign for the SLPP and support [Mr M] and [Mr M]’s [relative] in their bid to win the 2018 election

    ·     a [Specific activity 1 participant] named [Mr K] was shot with a witch gun but survived

    ·     a [Specific activity 1 participant] named [Mr H] (who was also in Australia [participating] at the [Event]) received two WhatsApp text messages which contained threats from [a phone number].

    ·     a [Specific activity 1 participant] named [Mr F] was stabbed by an SLPP gang member on the day the election results were announced, rushed to hospital and survived

    ·     a [Specific activity 1 participant] named [Mr L] was stabbed at his home by an SLPP gang member

    ·     a member of the Sierra Leone [Event group], [Mr J], quarrelled with the applicant at the [Event venue] whilst in Australia and warned the applicant that he would be attacked by SLPP gangs if he returned home to Sierra Leone

    ·     a [Specific activity 1 participant] named [Mr O] was killed with a witch gun in July 2022 by an SLPP gang.

    Threats made by [Mr M]

19. At hearing, the Tribunal explored the basis, nature and frequency of the threats made by [Mr M].  The applicant explained that he and [Mr M] had known each other prior to the election because they were both [Activity participants] who lived near each other in Freetown.  [Mr M] was a [Specific activity 2 participant] and [Specific activity 2 Occupation 2] who had requested the applicant and other [Specific activity 1 participants] to support, and campaign for, the SLPP so as to improve the prospects of his and his [relative] Julius Maada Bio’s electoral success.  The applicant instead chose to support and campaign for [Mr G], the [Specific activity 1 organisation] [Official] who was an APC politician. This resulted in [Mr M] threatening the applicant and others in the [Specific activity 1 sub-group] group with harm if SLPP won the election. 

20. The Tribunal is prepared to accept that the applicant may have been spoken to by [Mr M] in such terms but is unwilling to accept that these comments amount to politically motivated intimidation and harassment that would persist beyond the election cycle. As indicated above, country information before the Tribunal indicates that politically motivated harassment, intimidation and occasional violence are commonplace, and has been escalating in recent years, in Sierra Leone. Politicians from both main parties tend to promote tribalism to gain support and this leads to regional divisions and violence. Violence is ongoing in the sense that it recurrs during elections but the activities generally ease following the conclusion of an election. The Tribunal’s conclusions in this regard are further supported by the fact that there is no evidence of any direct threats received by the applicant from [Mr M] since he arrived in Australia. 

    The witch gun shooting of [Mr K]

21. In a signed statement dated 18 May 2018 that was provided to the Department, the applicant gave the following evidence:

    Around [in] March 2018, I received a call from a friend in the [Specific activity 1 sub-group], who advised me that [Mr K] ([Specific activity 1 participant] who is involved in APC campaigning) was shot with a “Traditional Witch Gun” which paralyzed him. If he was not treated immediately, he would have died within 1 to 2 weeks. Witch gun wounds can only be treated with traditional medicine as no scans were detected the effects of it. This is the common weapon of choice of the SLPP gang members.

22. However, at hearing the applicant stated that [Mr K] had been shot with a witch gun in April 2018 after the election run-off results were announced and that he learnt of this while he was in the [Event venue] [in Location].  The Tribunal clarified with the applicant that the first time [Mr K] had been injured with a witch gun because of his support of the APC was after the applicant arrived in Australia.

23. The Tribunal then put this inconsistency in the applicant’s evidence to him and sought an explanation. The applicant was incredulous but insisted that it was not possible that [Mr K] had been shot [in] March 2018 as the applicant was in Sierra Leone at that time.  No explanation was given as to why the information in paragraph 25 of his statement dated 18 May 2018 was incorrect.

24. The Tribunal has considered the possibility that an error was made when the applicant’s written statement was prepared with the assistance of others on 18 May 2018.  In this regard, the Tribunal notes the following qualification that appears above the applicant’s signature at the end of the statement:

    This statement was prepared over the course of three hours by RACS’ Legal Help for Refugees Clinic.  There may be errors or omissions in this statement based on the limited time available devoted to its preparation and inability to access accredited interpreters.

25. The Sierra Leonean general elections in 2018 involved two rounds of voting, the first on 7 March 2018 and the second on 31 March 2018.  It is conceivable that the applicant erred when making that written statement in relation to whether the injury had been sustained after the first or second round of elections.  Nevertheless, the Tribunal is unpersuaded and unwilling to give any weight to this claim for three reasons.  Firstly, the Tribunal has no documentary evidence or other oral evidence corroborating this incident.  Secondly, there is no acceptable medical evidence available to the Tribunal which details the nature of any injuries sustained by [Mr K] and how such injuries may have been caused. Thirdly, the applicant has neither verified, nor made any effort to verify, the nature of this incident with [Mr K].  These reasons, cumulatively, lead the Tribunal to conclude that no weight can be attributed to this claim.

    Threatening text messages received by the applicant and [Mr H]

26. At hearing, the Tribunal sought to explore whether the applicant or other persons known to him had received any threatening text messages.  The applicant initially stated that he had never personally received any such text messages but had lodged copies of threatening text messages that had been received by the [Specific activity 1 participant] [Mr H] who was with him in Australia.

27. The Tribunal then drew to the applicant’s attention that this was inconsistent with information he provided to the Department at question 77 of his protection visa application form where he stated that he received text messages on his mobile phone which stated: “we are waiting for you at anytime and anywhere we see”.  The applicant responded as follows:

    Truly speaking, most of these things are really difficult for me to remember because it is now almost 5 years. Because of the stress. It’s not that I don’t remember. I was the first person to receive threatening remarks. But I lost all of those messages. I still have the phone but not the message inside it.

1. The Tribunal then inquired as to why the applicant had not kept a copy of those text messages so that he could have included them with his application, to which the applicant replied:

   I’m not good with phones. I’ve changed phones three times. The phone I was using at the [Event], I have gotten rid of that phone. I didn’t realise that these text messages would be very important for me to provide. That is what I mean by lack of understanding. Now I remember I receive a text message. I had three phones.

2. The Tribunal then pressed the applicant to answer why he did not provide a copy of the text messages he received to the Department, to which the applicant replied:

   Things you don’t know, you don’t understand.

3. The Tribunal does not accept the applicant’s explanation as to why he did not provide evidence to the Department of threatening text messages he received on his mobile telephone. The explanation itself is inconsistent whereby the applicant first stated that he has the phone but lost the messages on it and then stated that he had disposed of that phone.  Moreover, it is difficult to accept that he did not realise the importance of such messages at the time they were received given that they were the only documentary evidence of direct threats made to him.  The inconsistent and changing nature of the applicant’s evidence in this regard lead the Tribunal to find that his claim in this regard lacks credibility.

4. Notwithstanding the above finding, the Tribunal now turns to an assessment of the claims pertaining to the two threatening text messages received by the Sierra Leonean [Specific activity 1 participant] and fellow APC supporter, namely [Mr H], who had also travelled to Australia to participate in the [Event].  Based upon evidence provided to the Department, [Mr H] received two WhatsApp messages from [a phone number] which contained threats to [Mr H] and his wife and family.  The two threatening text messages were received by [Mr H] while he and the applicant were in Australia and soon after the final results of the 2018 Sierra Leone election had been announced in early April 2018.  According to documentary evidence provided to the Department, the two text messages sent to [Mr H] read as follows:

   You think I will not get your number but now that I have your number. You just wait and see you were fighting against SLPP but now is our turn because we are in power. I will personally kill you the day I set my eyes on you. If you know what is good for you, just stay where you are because if I failed to kill my colleagues will not fail to kill you. As for your wife we will find her.

   You and your entire family is going to pay for what you did against our party. The damage you cause, you are going to pay with your life. We are following your movement, the day you step your feet on the airport of Sierra Leone just say your last prayer. you change your number today i am going to get the new one. The only thing that saves you now is because you out of the country.

5. The Tribunal notes that the text messages sent to [Mr H] were not directed to the applicant as they were not sent to him and are largely generic in their terms.  Furthermore, the Tribunal finds that as the applicant does not have a wife, these messages do not pertain to him.  On this basis, the Tribunal is unwilling to accept that the messages are genuine threats made to the applicant or could be reasonably perceived as such.

6. Finally, the Tribunal notes that the undated letter from [Mr G] that was received by the Tribunal in January 2023 does not provide any further detail in relation to the threats received by the applicant.  The letter is generic in nature and of limited probative value in terms of supporting the applicant’s claims. 

   The stabbing of [Mr F]

7. At hearing, the Tribunal explored with the applicant his claims pertaining to the harm sustained by fellow [Specific activity 1 participant] [Mr F].  He stated that [Mr F] was stabbed in the chest at his home in Freetown by an SLPP gang member.  He also stated that the stabbing occurred after the run-off election results were announced in April 2018. 

8. The Tribunal raised with the applicant that his evidence included a photograph of a handwritten medical certificate for [Mr F], a [Specific activity 1 participant], who was admitted on 4 April 2018 and discharged on 25 April 2018 to a hospital in Freetown for treatment of a “penetrating abdominal injury”.  The Tribunal noted that the medical certificate relating to [Mr F]’s admission to hospital documents three weeks of treatment after he was stabbed soon after the final election results were announced in early April 2018.  The document states that [Mr F] stayed in hospital from 4 to 25 April 2018 and was treated by [Dr Q] and underwent an exploratory laparotomy.  While the procedure was spelt correctly, the handwritten certificate, whose author is unknown, specifies that [a Hospital – incorrect spelling] in Freetown was where the treatment occurred.  The [Hospital – correct spelling] is [a] hospital in Freetown and there is no “[Hospital – incorrect spelling]” in Sierra Leone.  The Tribunal raised this discrepancy with the applicant, noting that while the author of the document spelt “exploratory laparotomy” correctly, they could not correctly spell the hospital’s name which suggested that the person who wrote this document was not in any way connected to the hospital. 

9. By way of response, the applicant accepted that a spelling mistake had been made but could give no explanation as to why it had been made.  The applicant then explained that he received a photograph of the document over WhatsApp but could no longer provide evidence of such receipt as he no longer possessed that mobile telephone. 

10. The Tribunal then raised with the applicant that his evidence included a photograph of a man in a wheelchair which had been described as [Mr F].  The Tribunal raised a number of concerns with the evidence in this regard.  Firstly, no information had been given in relation to when that picture was taken as well as how and when the applicant had received that photograph.  Secondly, the Tribunal raised with the applicant that the photograph was of little probative value in that it did not support a claim that [Mr F] was stabbed by an SLPP gang member because of his APC campaigning.  The applicant did not address the Tribunal’s concerns at hearing or by way of post-hearing submissions and evidence. 

11. The Tribunal is unpersuaded by the applicant’s evidence that [Mr F] was stabbed by an SLPP gang member because he was an APC campaigner. In light of the Tribunal’s finding rejecting the applicant’s claim to be an active and high-profile APC supporter, the lack of any history of past harm from local SLPP members and the above-mentioned concern in relation to the authenticity of the medical certificate, the Tribunal finds that this claim lacks credibility and gives no weight to this claim. 

    The chasing of [Mr L]

12. At hearing, the Tribunal also explored with the applicant his claims pertaining to a fellow [Specific activity 1] named [Mr L]. The Tribunal raised with the applicant that his evidence included a photograph of a man on a hospital gurney receiving treatment for a broken arm.  The Tribunal again noted that no evidence had been given in relation to when that picture was taken, how and when the applicant had received that photograph.  The Tribunal also raised with the applicant that the photograph was of little probative value in that it did not support a claim that [Mr L] injured his arm as he fled from an SLPP gang member who was chasing him because he had campaigned for the APC.  Again, the applicant did not address the Tribunal’s concerns at hearing or by way of post-hearing submissions and evidence. 

13. The Tribunal is unpersuaded by the applicant’s evidence that [Mr L] broke his arm while being chased by an SLPP gang member because he was an APC campaigner. In light of the Tribunal’s finding rejecting the applicant’s claim to be an active and high-profile APC supporter, the lack of any history of past harm from local SLPP members and the above- mentioned concern in relation to the limited probative value of this evidence, the Tribunal gives no weight to this claim.

    Warnings from [Mr J]

14. At hearing, the applicant stated that he quarrelled with a fellow Sierra Leone [Event] [group] member named [Mr J].  [Mr J] was the [group]’s [group role] and a supporter of the SLPP.  The applicant and [Mr J] argued over politics at the [Event venue] [in Location].  During one particular argument, the applicant punched [Mr J] because he had slapped him.

15. In paragraph 19 of his statement of 18 May 2018, the applicant stated that [Mr J] was an SLPP supporter who had warned the applicant and others against creating the [Specific activity 1 sub-group].  After the final election results were released, [Mr J] warned the applicant not to return to Sierra Leone because SLPP gangs would kill him.

16. While the Tribunal accepts that such warnings may have been made, these are of limited probative value in relation to whether there is a real chance of serious or significant harm arising in the event that the applicant returns to Sierra Leone now or in the reasonably foreseeable future.

    The death of [Mr O]

17. At hearing, the Tribunal also explored with the applicant his claims pertaining to a fellow [Specific activity 1 participant] named [Mr O]. The applicant stated that [Mr O] had been shot with a witch gun in March or April 2022 and that he had died from the injury.  The Tribunal raised with the applicant that he had not provided any evidence to the Tribunal about [Mr O]’s death and that it was caused by a witch gun shot by an SLPP gang member.  The applicant then stated that he had no evidence in this regard but that the witch gun shooting had occurred in July 2022. 

18. In the absence of any documentary evidence, along with the inconsistent evidence provided in relation to the date of [Mr O]’s death, the Tribunal is unpersuaded by the claim that [Mr O] was an APC campaigner or supporter who had been killed by an SLPP gang member with a witch gun.  

    Harm sustained by others in Sierra Leone

19. At hearing, the Tribunal explored with the applicant whether he knew other persons who had been harmed in Sierra Leone because of their support of APC.  The applicant did not mention [Mr N] or other persons that he claimed to have been harmed as indicated in his statement of 18 May 2018 or at interview with the delegate.  However, the applicant did indicate that [Mr P], who was his boss at the [Employer Workplace] in Freetown, had been killed in August 2018 because he had also been shot with a witch gun.    The Tribunal raised with the applicant that he had not provided any evidence about [Mr P]’s death and that it was caused by a witch gun shot.  The applicant then stated that he did not do so and the reason given was as follows:

    Too much thinking. 

20. In the absence of any documentary evidence relating to [Mr P]’s death, the Tribunal is unpersuaded by the claim that [Mr P] was a strong APC supporter who had been killed with a witch gun.  

    Overall findings in relation to the applicant’s political activities, expression and profile

21. Taking into account the accepted evidence in relation to the nature of the applicant’s political activities in Sierra Leone and whilst living in Australia as described above, the Tribunal finds that the applicant has not garnered any significant profile as an APC supporter or campaigner such that he would be of any interest to SLPP gangs if he were to return to Sierra Leone.

22. It is also worth noting that when asked at hearing whether he would express any political opinions or somehow be politically active by way of campaigning if he returned to Sierra Leone by supporting the APC, the applicant did not engage with this question.  After some discussion, the applicant indicated that he would not provide political support to the APC while he was in Australia but might do so if he returned to Sierra Leone.  Taking into account the applicant’s limited support of the APC in the past, the Tribunal finds that the applicant would not be an active campaigner in support of the APC should he return to Sierra Leone.   

23. On the available evidence, the Tribunal does not accept that the applicant holds a political opinion that motivates him to speak out or become engaged in Sierra Leonean political issues or campaign again for the APC. 

24. In the Tribunal’s view, the applicant’s short period of campaigning for the APC was primarily undertaken to advance his [Specific activity 1] career which he believed would best occur through the APC winning the 2018 election in Sierra Leone. 

25. The Tribunal raised its concern with the applicant at hearing that he had only ever been a campaigner for the APC between November 2017 and March 2018 and did not have a high profile.  The Tribunal drew to the applicant’s attention that recent events, including the protests on 10 August 2022 and their aftermath which included the death of prominent APC activist Hassan Dumbuya, indicated that the SLPP and SLPP gangs have not targeted persons who did not have a high profile and have not been politically active. Taking into account this information, the Tribunal invited the applicant to address its concern that there was not a real chance of his facing any harm in Sierra Leone.  The applicant initially responded by stating that he was [associated with] to Hassan Dumbuya and that they both campaigned for the APC.  The Tribunal reiterated its suggestion that Mr Dumbuya was a high-profile activist who was engaged in Sierra Leonean politics to a greater degree than the applicant had ever been and that there was little evidence to suggest that the applicant would be harmed because of his limited political activity almost five years ago.  The applicant did not address the Tribunal’s characterisation of the difference in profile between him and Mr Dumbuya but simply reiterated that he feared an SLPP gang led by [Mr M] would harm him if he returned to Sierra Leone.

26. The Tribunal also finds that the applicant would not be perceived (by the SLPP or SLPP gangs) of having a political opinion opposed to the SLPP such that he would targeted, harmed or indeed killed. In reaching this conclusion, the Tribunal takes into account the nature and level of campaigning that the applicant undertook in support of the APC in the lead-up to the 2018 election, as assessed above.

    Assessment: refugee criterion

    Political opinion

27. The Tribunal now assesses whether, in light of the above findings, and having regard to other relevant factors – in particular country information on the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Sierra Leone (for the reason of his political opinion, actual or imputed or for any similar reason enumerated in s 5J(1)).

28. The Tribunal has found above that the applicant has campaigned in support of the APC in the lead-up to the 2018 elections in Sierra Leone. It accepts that he approves of the APC, but is not satisfied that he has a political opinion that extends beyond that general view.  It accepts that he was involved in some incidents with [Mr M] in Freetown where he was threatened but finds that he has exaggerated the degree to which those threats can be taken seriously and the degree to which his limited campaigning activities in late 2017/early 2018 were, or indeed would continue to be, of any interest to the SLPP, [Mr M] or any SLPP gangs.  The Tribunal finds that the 2018 election outcome may have added towards the applicant’s resolve to remain in Australia but that he did not flee persecution or significant harm.

29. The Tribunal asked the applicant about his future conduct if he were to return to Sierra Leone.  As stated above, the Tribunal does not accept that the applicant holds a political opinion that motivates him to speak out or become engaged in Sierra Leonean political issues or campaign again for the APC.  When asked where he would live in Sierra Leone if he were forced to return there, the applicant did not give an answer apart from insisting that he did not want to return.  On the limited available material, the Tribunal infers that the applicant would return to Freetown where his de factor partner and step-daughter currently reside, re-establish himself there and seek work commensurate with his qualifications and experience.

30. The Tribunal has had regard to a range of country information, including the independent information summarised above.  While it accepts that the applicant may feel reluctance to return to Sierra Leone given the changed political landscape since his departure, and possible consequent loss of patronage, it is not satisfied he faces a real chance of being targeted for serious harm for reasons of his campaigning for the APC in the lead-up to the 2018 elections. The applicant has been outside Sierra Leone for almost five years and has had limited contact with the APC and APC members and has not engaged in any political commentary or activism in this time. His de facto partner and step-child have been living safely in Sierra Leone since 2018, having suffered no significant incidents or concerns since the applicant’s departure in March 2018.

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

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

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

103.   Accordingly, the Tribunal finds that the applicant will not face a real chance of serious harm if he returns to Sierra Leone on account of his low-level profile as an APC campaigner for approximately four to five months leading up to the 2018 elections. Similarly, there is no persuasive evidence to indicate that there is a real chance of the applicant being subject to serious harm arising from discriminatory treatment from the Sierra Leonean authorities, including police personnel, due to his political opinion (actual or perceived), his past work as a police officer or for any other reason set out in s 5J(1)(a). 

Economic prospects

104.   On the available evidence, the Tribunal is also not satisfied that there are any factors that would prevent the applicant from re-establishing himself in Sierra Leone.  The Tribunal is not satisfied that the applicant faces a real chance of being subject to serious harm – including the denial of a capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist – on his return to Sierra Leone.

105.   At hearing the applicant stated that because the APC is no longer in power, he will not be able to get work as [an Occupation 1] or a [Specific activity 1 Occupation 2] and it will be difficult to support himself. However, the applicant did indicate at hearing that he had completed [Subject] studies in Sierra Leone and would be able to secure work there as [an Occupation 2]. 

106.   The Tribunal has found above that the applicant benefited in employment and training and travel opportunities from his support of the APC. The Tribunal accepts that the applicant as an APC campaigner may have difficulty obtaining a role in a government agency, including [Employer]. The Tribunal also acknowledges that from an employment perspective, the applicant may not be able to obtain the level of employment that he had previously. However, the Tribunal is satisfied that on return to Sierra Leone, the applicant will be able to obtain other work such as [Occupation 2], albeit outside the government sector.

107.   The Tribunal has had regard to information from the Bertelsmann Stiftung report of 2022 indicating that Sierra Leone is one of the poorest countries in the world and the majority of the population lives in poverty.[30] However, given the Tribunal’s finding above that he will be able to secure employment in Sierra Leone, working, the Tribunal is satisfied that he will also have resources to draw upon to support himself.

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

108.   

On this basis, the Tribunal is satisfied that while the applicant may not be able to obtain positions related to government, that he will be able to find employment of some kind and draw upon resources such that he will not be subjected to serious harm as instanced in

s 5J(5) such as significant economic hardship that threatens his capacity to subsist on return to Sierra Leone.

Non-returning member of the Sierra Leone [Event] [group]

109.   Notwithstanding the above, the Tribunal accepts the applicant will return to Sierra Leone having not returned with other members of the 2018 [Event] [group] which travelled to and from Australia in 2018.  As raised with the applicant there is no information to suggest that members of the Sierra Leone [Event] [group] may face harm on return to Sierra Leone because they remained in Australia at the completion of the [Event].[31]

[31] [References redacted]

110.   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 now or in the reasonably foreseeable future as a high-profile [Activity participants] who did not return to Sierra Leone with the [Event group] and remained in Australia. 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 as a high-profile [Activity participant] who did not return to Sierra Leone with the [Event group] and remained in Australia.

111.   The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s 5J(1), now or in the reasonably foreseeable future, if he returns to Sierra Leone.

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

Assessment: complementary protection criterion

113.   The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sierra Leone.

114.   The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about general conditions and political violence in Sierra Leone.  It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him (such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment). It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Sierra Leone.

115.   The Tribunal also considered the applicant’s claim that he fears a fate similar to what happened to Hassan Dumbuya and others who were killed recently after a political protest clash between APC and SLPP supporters on 10 August 2022. The Tribunal has considered the evidence relating to this incident submitted by the applicant together with other independent information of the general security situation in Sierra Leone. To the extent the applicant fears harm from generalised violence, the Tribunal finds that this is a risk faced by the population of the country generally and is not faced by the applicant personally and on this basis, there is taken not to be a real risk pursuant to s 36(2B).

116.   Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, there is a real risk that he will suffer significant harm: s 36(2)(aa).

CONCLUSION

117.   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).

118.   

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).

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

DECISION

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

Peter Papadopoulos

Member

Attachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958

The 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 (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-LA, which are extracted below.

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 below.

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 of key provisions of the 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.

…