1821073 (Refugee) - [2024] AATA 2743

1821073 (Refugee) [2024] AATA 2743 (29 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mohammad Iqbal Chaudhry
CASE NUMBER: 1821073

COUNTRY OF REFERENCE: Sierra Leone
MEMBER:Senior Member G.A.F. Connolly
DATE:29 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 April 2024 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion – All People’s Congress (APC) activist – arrest warrant – election violence – physical assault – fear of detention – state protection – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 43
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 104, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510 at 576
ABT16 v Minister for Home Affairs [2019] FCA 836 (05 June 2019)
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (Minister’s Delegate) on 5 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
2. This is a case that has taken a remarkable length of time to be finalised as the applicant had made claims, including repeatedly saying to the Tribunal that he could produce evidence of his vulnerability to harms and dangers, if he was given more time. For reasons that will become clear, the applicant’s case was at all times a very weak one and he has never made out any case that he was a person to whom Australia owed protection obligations.
3. The applicant is a male born in Sierra Leone who is now [age] years of [age].

4. [In] March 2018, the applicant arrived in Australia on a GG-408 visa for Commonwealth Games athletes attending the Gold Coast games that year. The visa was granted on 24 November 2017 and was valid to [May] 2018. At this time, the applicant said to the Minister’s Delegate, he was engaged with a daughter and step-daughter at home in Sierra Leone.[1]
[1] Applicant’s Statement of 04 May 2018 at paragraph 7.

5. [In] May 2018 – one week before the Commonwealth Games visa was due to expire, the applicant applied for a protection visa. In support of his application, the applicant made a statement dated 04 May 2018 in which he claimed protection obligations were owed to him by Australia.[2] The applicant’s protection claims were set out in the decision of the Minister’s Delegate[3]:
[2] Applicant’s Statement of 04 May 2018.
[3] Applicant’s Protection Visa Decision Record dated 05 July 2018.at page 2.
oThe applicant claimed that he was politically active with the All People’s Congress (APC) from 2007 due to his work as a coach and an [sportsperson 1].
oThe applicant claimed that he was appointed as an APC youth Chairman in his local area. He claimed that he organised rallies during the 2007, 2012 and 2018 election campaigns. He claimed he was responsible for arranging meetings with youth and advocating about the APC and its plans and strategies for youth.
oThe applicant claimed that due to his political activities he was seen as a threat to Sierra Leone People’s Party (SLPP) supporters and politicians due to his position and influence as a youth leader.
oThe applicant claimed that from 2016 there were several attacks on his home by SLPP supporters. He claimed on one occasion he was attacked and injured and on another occasion when he was not at home his father and [a relative] were beaten and injured.
oThe applicant claimed that in the 2018 election campaign he was severely beaten by SLPP supporters at a rally south of Kenema.
oThe applicant claimed that a [leader 1] from Kenema has issued an arrest warrant for his family to answer crimes against the SLPP party. He claimed that a friend recently informed him that it was published in a newspaper that the [leader 1] wants to arrest him and brought to [Town 1] for sentencing.
oThe applicant claimed that he feared for his life in Sierra Leone and he was being targeted by supporters, politicians and the town [leader 1] in [Town 2]. He claimed he was accused of inciting local youth to ruin the reputation of the town [leader 1] and his supporters by organising and holding rallies in Kenema and Freetown.
oThe applicant claimed to fear that if he returns to Sierra Leone he will be seriously harmed by SLPP supporters and he will be arrested by the Kenema town [leader 1].

The applicant’s documentary evidence of his political notoriety and political activities presented to the Minister’s Delegate was made up of[4]:
[4] Applicant’s Protection Visa Decision Record dated 05 July 2018.at page 3.
oA newspaper article from “New Vision” dated 30 April 2018.
oCopies of photographs.
oA copy of an APC membership card.

6. On 05 July 2018, the Minister’s Delegate refused to grant a protection visa to the applicant on the basis that s36(2)(a) of the Migration Act was not met as the applicant’s protection claims, based on his claims to have been targeted for harm because of his links to the All People's Congress (APC) political party were not credible and s36(2)(aa) was not met as claims of past harm were also found not credible.[5]
[5] Applicant’s Protection Visa Decision Record dated 05 July 2018.
7. The applicant appeared before the Tribunal on several occasions to give evidence and present arguments on:
¾18 July 2023
¾10 October 2023
¾01 December 2023
¾26 March 2023.

In no way could the applicant claim that he was extended other than several opportunities and vast amounts of time to prepare and present his case.
8. The applicant was represented in relation to the review by Mohammad Chaudry who, it must be fairly noted, did what he could in all of the confused circumstances of this case.
CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of Migration Act and Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Any application to this Tribunal, even where an applicant has not attended their own hearing, is a proceeding de novo and not an appeal, strictly speaking, at least not an appeal to any court. The case before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government.
In this matter, the Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) (AAT Act). The Federal Court said this of the Tribunal’s task[6]:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.
It goes without saying that no two cases are the same and that each case must be judged according to its own facts and on its own merits. In view of what was said in Drake, set out above, it is important to repeat that the Tribunal here takes on the role of determining what was the correct or preferable decision on the whole of the material that has been filed with or presented to this Tribunal in this case.
Mandatory Considerations
[6] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.
In accordance with Ministerial Direction No.84, made under s 499 of Migration 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.

THE PROCEEDINGS BEFORE THIS TRIBUNAL

It is important at the outset of these reasons to explain the nature of this Tribunal and its task in cases such as this one. This Tribunal was created by the AAT Act to be an enduring executive body that conducted merits review of applications made by persons dissatisfied with a reviewable decision made under federal law. Some of the impetus for this Tribunal’s creation arose from thinking across the common law world after World War II[7], like that of the Franks Committee[8] that inquired into British administrative law bodies, which sought to provide accessible and affordable non-curial mechanisms for citizens to challenge the administrative decisions of an ever larger and more bureaucratic state. The Franks Committee noted, for its part, that, “… statutory tribunals are an integral part of the machinery of justice in the state and not merely administrative devices for the disposing of claims and arguments conveniently”, adding the need for such statutory tribunals to be “open, impartial, and fair”.[9]
[7] See the speech, “Overview of Tribunals Scene Australia”, given by Justice Garry Downes AM, then President of this Tribunal, on 05 April 2006.
[8] The Committee on Administrative Tribunals and Enquiries chaired by Sir Oliver Franks OM GCMG, and which reported in 1957 (Franks Committee) on aspects of British administrative law.
[9] Cited by Hillaire Barnett, Constitutional and Administrative Law (12th Edition) (London, UK: Routledge, 2017) at 707.
With this in mind, it is important to note that this Tribunal, as I have explained, repeatedly, in other reasons, operates as an executive body under Chapter II of the Constitution – and is not a Court, which operates under Chapter III of the Constitution. That is, the proceedings before this Tribunal are inquisitorial of an applicant’s case – not adversarial as between plaintiff and defendant parties – and the Tribunal does not, in protection cases such as this one, anyway, operate in the mode of a contradictor.
Therefore, in cases argued before this Tribunal, it was and is the responsibility of every applicant to make their own case. It is not for the Tribunal to try and guess at the case that an applicant may be making. It is not for the Tribunal to research this issue or that issue that an applicant may raise, however peripheral – or indeed, even if not peripheral. Rather, it is always up to the applicant to advance whatever argument and produce whatever evidence that wish to rely on in support of their particular case. In these sorts of protection cases, an applicant’s contention will be that Australia owes them protection obligations. This Tribunal must then decide whether the applicant has – on all of the evidence before and materials available to the Tribunal – made good their claim for protection.[10]
[10] See Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187] per Gummow and Hayne JJ
With specificity, and to emphasise this crucial aspect of the Tribunal’s operation, it is important to note that there are specific statutory requirements that impose upon applicants the obligation to make their own case in as much detail as possible – and to do so at their first reasonable opportunity: ss. 5AAA and 423A of the Migration Act. Otherwise, an applicant risks the making of adverse inferences against them where they make a case made later in time, and, especially, where this later case, or some new claims, are made after what amounts to a significant delay. Claims that are ‘improved’ and/or ‘renovated’ will always arouse scepticism and require explanation, particularly as to why these claims were not raised earlier. A delay, in itself, may not always be fatal to an applicant’s case but an applicant’s delay will always need to be explained. I will now discuss these two sections in more detail:
•section 5AAA of the Migration Act makes clear that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, and critically, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. In this respect, two obligations are particularly relevant: the ongoing requirement under s.104 of the Migration Act for an applicant to ensure their relevant details are correct and up to date, and, also, for them to amend any incorrect information at the first reasonable opportunity.
•section 423A of the Migration Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence where the applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such a case, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not first raised or the evidence was not first presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the applicant’s claim or evidence. Applicants, therefore, who do not present all of their claims and evidence to the primary decision-maker must have a reasonable explanation for their not doing so.
While the Tribunal is conducting a ‘de novo’ review, it cannot close its eyes to delay and to ‘recent invention’ of old evidence or new claims. These are less matters of any strict rules of evidence than the proper application of common sense. This said, there may be good reasons for a failure by an applicant to immediately recall all aspects of an applicant’s experience that may soundly ground a protection claim – and an applicant here may well be able to explain such a failure or delay. It is crucial for this Tribunal to always keep an open mind and to be “open, impartial, and fair” in its evaluation of all the circumstances of an applicant’s claim. Yet, ultimately, it is always the applicant’s case to make, much sooner rather than much later.
In this case, I have considered all the material afresh and made my own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa. While as noted above, the Tribunal is inquisitorial and can seek out the evidence it requires in order to reach a determination, the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[11] It is, rather, the responsibility of each applicant to specify all the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim: s 5AAA of the Migration Act.
[11] see ABT16 v Minister for Home Affairs [2019] FCA 836 (05 June 2019) at [28] per Perram J.
For the reasons noted above and below, this applicant’s case is not the usual case, and, instead, this is a case where I have, on my review of all the evidence in this case, determined it is, very much, a proper case for intervention by the Minister under the Migration Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

The whole of the evidence that has been provided to the Tribunal – and examined afresh – does not give rise to any possible inference of a valid protection claim.
Applicant’s claims in respect of Sierra Leone?
I have considered all of the applicant’s claims and the materials that he has filed with this Tribunal in making them. They essentially relate to his claiming he played a large role in APC politics and this making him a target for political reprisals by the ruling SLPP. Despite his many opportunities to make his case, there is a complete lack of evidence to support any of the claims made by the applicant, both individually and cumulatively, that he was any sort of even minor participant in Sierra Leone politics, or that he would face any real chance of persecution, or any form of harm, now or in the foreseeable future if he was residing in Sierra Leone.
I will deal with the evaluation of these claims in serial form and with the evidence, or complete lack thereof, to sustain let alone support any of these claims:
a.The applicant claimed that he was politically active with the All People’s Congress (APC) from 2007 due to his work as a coach and an [sportsperson 1].
There is limited evidence to support these claims albeit for the sake of argument, will assume that the applicant was active in APC politics, including at the time of the 2018 Sierra Leone elections. This is an assumption made in good faith to allow for further analysis of the applicant’s remaining claims, rather than on the basis of any overwhelming evidence.
b.The applicant claimed that he was appointed as an APC youth Chairman in his local area. He claimed that he organised rallies during the 2007, 2012 and 2018 election campaigns. He claimed he was responsible for arranging meetings with youth and advocating about the APC and its plans and strategies for youth.
The evidence to support this claim was very weak. However, even if accepted, a ‘youth chairman’ is hardly a senior or significant role in any political campaign or political operation. Further, and much more importantly, if the applicant had been so vital a cog in the machine of the APC’s election campaigns – as he claimed before the Tribunal – then it was very abnormal that the applicant would spent Sierra Leone’s 2018 national election in Australia for the Commonwealth Games, and not engaged in what he says are his important political duties in Sierra Leone. It makes no sense for the important political actor that the applicant claims to be to be absent from Sierra Leone when national elections are occurring or about to occur. When asked in the hearing whether the applicant, as someone who claims to be a political figure in Sierra Leone, had ever been contacted since he left Sierra Leone in 2018 for his political advice and political insights by other APC supporters, he admitted that, no, he had not been contacted by the APC supporters since he left Sierra Leone in 2018.[12] It seems altogether very unlikely, based on all of the evidence (or lack thereof) that the applicant had ever played any role in Sierra Leone politics beyond being, perhaps, an APC member and supporter. The applicant here has been, it is reasonable to conclude, exaggerating, to put it politely, his role in APC politics, as there is otherwise no evidence to support his claims.
[12] Hearing conducted on Tuesday 26 March 2024.
c.The applicant claimed that due to his political activities he was seen as a threat to Sierra Leone People’s Party (SLPP) supporters and politicians due to his position and influence as a youth leader.
For the reasons stated at (b) above this claims seems fanciful. There is no evidence to support the applicant’s claim here. There seems to be no evidence of the applicant playing any significant role in APC politics such that SLPP supporters would know who he is, let alone want to target him for violence or, indeed, any species of harm. It is relevant that the applicant admitted that since 2018, no one from the APC in Sierra Leone has sought to contact him on political matters.
d.The applicant claimed that from 2016 there were several attacks on his home by SLPP supporters. He claimed on one occasion he was attacked and injured and on another occasion when he was not at home his father and [relative] were beaten and injured.
There is no evidence before the Tribunal to support this claim.
e.The applicant claimed that in the 2018 election campaign he was severely beaten by SLPP supporters at a rally south of Kenema.
There is no evidence before the Tribunal to support this claim.
f.The applicant claimed that a [leader 1] from Kenema has issued an arrest warrant for his family to answer crimes against the SLPP party. He claimed that a friend recently informed him that it was published in a newspaper that the [leader 1] wants to arrest him and brought to [Town 1] for sentencing.
There is no evidence before the Tribunal to support this claim. There is no newspaper produced which makes out any claim that the applicant was threatened with arrest, for any reason at all. That is unless the applicant had some form of media clairvoyance that would enable him to predict the future publication of the newspaper article mentioned below at paragraph 26.
g.The applicant claimed that he feared for his life in Sierra Leone and he was being targeted by supporters, politicians and the town [leader 1] in [Town 2]. He claimed he was accused of inciting local youth to ruin the reputation of the town [leader 1] and his supporters by organising and holding rallies in Kenema and Freetown.
There is no evidence before the Tribunal to support this claim.
h.The applicant claimed to fear that if he returns to Sierra Leone, he will be seriously harmed by SLPP supporters and he will be arrested by the Kenema town [leader 1].
The applicant may believe this himself, but there is no reliable or even semi-plausible evidence, at all, that is before the Tribunal that gives any rational basis to this belief. At best the applicant seems to have been an APC supporter, perhaps APC party member.
Each of the applicant’s claims has been considered and almost all are dismissed as lacking any evidentiary support. The applicant can, perhaps, be assumed to have been an APC member and supporter, based on some evidence he has filed of his APC membership. However, beyond this, no claim of his can be accepted, on a proper consideration of his case, as he has supplied no evidence on which one could reach any form of satisfaction that his claims had any independent bases in fact to support them beyond his asserting that they do.

In this case, the evidence did not really ever move beyond that which was originally filed with the Department for the decision made by the Minister’s Delegate on 05 July 2018. The applicant’s filed submissions could not address what was, ultimately, a consistent and fatal deficiency in evidence in this case. The case was always the applicant’s to make.
One jarring aspect of this case was that the applicant filed only recently on 19 April 2024 with the Tribunal a report from a news source “[specified]” that the applicant’s life is, allegedly, in danger from the SLPP government in Sierra Leone.[13] On research done to verify the report, this website and/or newspaper was initially found not to exist or, if it does exist, this website and/or newspaper cannot be accessed from the Tribunal’s browser or from other browsers. Then further efforts were made, and the site does seem to exist but its legitimacy as a reliable news source cannot be assumed. While the Tribunal cannot verify this website as a news source, for the purposes of this application, this news article’s contents will be read and considered on their own merits. However, if weight is given to this news story as supplied by the applicant, it does, upon my consideration of it, raise more questions than it answers. For example, given that the applicant left Sierra Leone in 2018, why is the first story in the Sierra Leone press that the applicant can rely on, as evidence, one that, suspiciously, comes to be published in April 2024? For what reasons would the applicant be known in Sierra Leone? What were the major achievements of or doings by the applicant in the politics of Sierra Leone or in the affairs of the APC as a national political party? This story concerning the applicant being published now seems, at best, a curious coincidence given the now long history of the applicant’s case and the fact that this decision was now imminent. Yet even so, the vagueness of the story and its allegations mean what weight it can be given is to be, safely, evaluated at minimal. Even when extended the benefit of weight, this news report, on a proper consideration, cannot assist the applicant, given its nebulousness, even if its timing did not raise yet more questions.[14]
[13] [Source deleted.]
[14] See the applicant’s post hearing submissions of 19 April 2024.
Overall, on reviewing, entirely afresh, all the evidence and submissions in this case – even after so many hearings being afforded to the applicant – my conclusions are:
¾I accept that the applicant is a member and supporter of the APC supporter – this is an assumption made by me in good faith and not because of any overwhelming evidence supplied by the applicant.
¾I have considered but reject the claim that the applicant engaged in political activities for the APC during the 2012 and 2018 election campaigns Sierra Leone. There is no evidence before the Tribunal that the applicant had any senior role in APC’s national political party in 2018 or in any prior year or election campaign.
¾I have considered but I reject the claim that the applicant plays any role in Sierra Leone politics beyond that of an ordinary APC member and supporter. I am fortified in this rejection by the applicant’s admission that in the years since 2018 after leaving Sierra Leone, he has not been approached to participate in political campaigns (even remotely) or to give political advice or endorsements. The applicant’s own evidence in this respect supports the conclusion that he has no significant role in APC politics.
¾I have considered but I reject the claim that the applicant is of any adverse interest to SLPP supporters. The applicant would be, on all of the evidence in this case since it was commenced over 6 years ago, unknown to SLPP supporters.
¾I have considered but I reject the applicant’s claim he was attacked prior to his departure from Sierra Leone in 2018 to attend the Commonwealth Games. There is no reliable evidence before the Tribunal that the applicant was ever attacked for his political views.
The sheer paucity of evidence to support the applicant’s grave claims, as well as his own admissions, have undermined his case and resulted in the negative considerations of his claims. No other result was possible here, given the weakness and problems of the applicant’s case.
Return to Sierra Leone?
The Sierra Leone Presidential election of 07 and 31 March 2018
The 2020 United States Department of State’s report on Sierra Leone’s human rights situation, and, crucially, compiled after the 2018 elections, reported the following[15]:
Strong ethnic loyalties, biases, and stereotypes existed among all ethnic groups. Ethnic loyalty was an important factor in the government, armed forces, and business. Complaints of ethnic discrimination in government appointments, contract assignments were common. Little ethnic segregation was apparent in urban areas, where interethnic marriage was common.
[15] Department of State of the United States, 2020 Country Reports on Human Rights Practices: Sierra Leone, at 24.
The earlier 2018 report on Sierra Leone noted that the domestic ethnicities of Sierra Leoneans had some influence on political support in Sierra Leone, noting the two dominant groups or tribes of the Mende and the Themne each make up ~30% of the Sierra Leone population. In that 2018 report, this was said[16]:
The Mende traditionally supported the SLPP and the Themne the APC. The Limba, the third most populous ethnic group, traditionally supported the APC. Other ethnic groups had no strong political party affiliations. The opposition APC party had repeatedly accused the SLPP of giving preference to populations in the Southeast, who are mostly Mendes, in filling government positions. As of August 30, ministers from the Southeast held 54 percent of cabinet positions, ministers from the South and East 25 percent, and those from the Western peninsular the remaining 16 percent.
[16] Department of State of the United States, Sierra Leone 2018 Human Rights Report, at 13-14.
Again, to refer to the 2020 United States Department of State’s review of the 2018 Sierra Leone election, this was noted of that election:
Elections and Political Participation Recent Elections: The March 2018 presidential election, in which Julius Maada Bio of the Sierra Leone People’s Party (SLPP) prevailed, and the January 2018 parliamentary election, were regarded by most observers as free and fair. Several parliamentary and local re-run and by-elections held on December 12 were regarded as free and fair. There were no national level elections held during the year.
Political Parties and Political Participation: Political parties were free to register and operate in the country. A total of 17 political parties were registered with the Political Parties Registration Commission but only four were elected into parliament during the 2018 general elections. Fourteen traditional authorities (paramount chiefs) and three independent candidates were represented in the state legislature. The NGO Center for Accountability and Rule of Law reported clashes in Freetown between supporters of the APC and SLPP took place in January. In a January 27 incident, 27 persons were reportedly wounded. Police arrested 19 persons after the clash; all were later released on bail.
Reporting from various sources suggests that there was indeed some election violence in 2018, especially after the election results were announced. The non-partisan Carter Centre compiled a comprehensive report on Sierra Leone’s elections to the effect that although there were periodic episodes of violence, “….for the most part the campaign was conducted in a peaceful manner.”[17] As is noted below, the losing APC candidate in the 2018 elections lives undisturbed in Sierra Leone and ran again (unsuccessfully) in the recent 2023 elections.
[17] Carter Centre, ‘Presidential and Parliamentary Elections in Sierra Leone’, 27 March 2018.
At the same time, in terms of the events of 2018, it can be noted that there have been for some time, instances of Sierra Leonean [sportspeople] staying in host countries after competitions and games have finished. This said, those Sierra Leone [sportspeople] who do overstay and then return to Sierra Leone, either voluntarily or as a result of deportation/removal, are unharmed on their return to Sierra Leone.[18] There is no evidence before the Tribunal as to why the applicant would be in any different position.
[18] Barrie M F 2016, ‘Sheriff Suma urges Sierra Leonean Olympians not to abscond’, BBC Sport, 11 July.
Accordingly, there was a dearth of evidence before the Tribunal that Sierra Leone, after the 2018 elections when the applicant was due to return home, was and is a place in which political supporters (of any political party party) are facing the threat of harms, of any kind, however defined, for their political opinions and/or their membership of any social groups.
The Sierra Leone Presidential election of 24 June 2023
In the more recent case of Sierra Leone’s 2023 election, the incumbent candidate, President Julius Maada Bio, won re-election, comfortably, winning more than 56% of the national vote, against the APC candidate, who was, again, Dr Samura Kamara.[19]
[19] See the UK Parliamentary Report here:
Notwithstanding this decisive victory for the SLPP over the APC, there was some political violence before[20] and, especially, after the 2023 election in Sierra Leone. In particular, the 25 June 2023 attack on the headquarters of the APC in Freetown, the day after voting in the national election, allegedly saw live rounds and tear gas fired at the APC building.[21] There are allegations that a woman was wounded in the attack.[22] However this was disputed by Sierra Leone police who claimed that the APC had claimed victory in the election and commenced a parade through Freetown, which in turn led to APC supporters harassing passers-by, leading to police firing tear gas to disperse the crowds.[23] At the same time, in the aftermath of the 2023 election, supporters of the SLPP claimed that they had been attacked by APC members, too.[24] It is hard, in the absence of anything approaching reliable reporting, to determine what the true state of political affairs in Sierra Leone other than to derive from reporting that President Bio was comfortably re-elected and that the election period did see some sporadic violence.[25] What is likely the most accurate synopsis of the 2023 Sierra Leone elections was provided by the African Union’s Election Observer Mission (AUEOM), which concluded[26]:
Overall, AUEOM observed that elections were conducted in a generally peaceful, transparent, and credible manner, up to the counting on polling day, despite reported incidents of violence particularly during the pre-election period.
The AUEOM commends the people of Sierra Leone for their enthusiasm, commitment and resilience to express their will at the polls and their unwavering commitment to maintaining democratic stability.
[20] “Violence flares in Sierra Leone ahead of presidential vote”, Reuters, 22 June 2023.
[21] “Opposition Accuses Sierra Leone’s Military of Election Weekend Assault”, New York Times, 25 June 2023.
[22] “Police fire tear gas at Sierra Leone opposition after vote”, 26 June 2023
[23] “Police fire tear gas at Sierra Leone opposition after vote”, 26 June 2023
[24] BBC. “Sierra Leone election: Julius Maada Bio sworn in as opposition cries foul”, 28 June 2023
[25] See the UK Parliamentary Report here:
[26] African Union, “Preliminary Statement: African Union Election Observation Mission to the 24 June 2023 General Elections in the Republic of Sierra Leone - Freetown, 26 June 2023”, dated 29 June 2023.
It is important to note that while reporting of this recent 2023 election have included claims and counter claims about voting irregularities, it is very difficult to find any sort of definitive or even slightly authoritative evaluation of the 2023 Sierra Leone election.[27] After the election, there were expressions of concern at possible ‘democratic backsliding’ in the conduct of Sierra Leone elections.[28]
[27] See also the report by the European Union Agency for Asylum, “Major security, political, and humanitarian developments in Sierra Leone”, 26 July 2023, which has a balanced treatment of Sierra Leone issues.
[28] See Professor Catherine Bolten, “Sierra Leone election: voter trust has been shaken, and will need to be regained”, 30 June 2023
To rely again on the non-partisan Carter Centre, which monitors elections and governance issues around the world, they said this of the 2023 Sierra Leone election (and I quote it in some detail as it is the most exhaustive and authoritative coverage of the 2023 election that could be found)[29]:
[29] The Carter Center, “Carter Center Expresses Concern About Transparency of the Tabulation Process in Sierra Leone Elections”, 27 June 2023
The Carter Center mission visited 119 polling stations on election day and observed tallying processes in all five centers. Key findings of the Carter Center mission regarding the voting, counting, and tabulation process to date include the following:
• Poll openings. Carter Center observers report that some polling stations opened late on election day due to a lack of material.
• Voting process. The voting process was assessed by Carter Center observers as “reasonable” or “very good” in 93 percent of polling stations observed. In some polling stations prospective voters were noted who claimed to be registered at a polling station where their names could not be found on the list. Some polling stations in Freetown had insufficient ballot papers and ran out in the mid-afternoon.
• Closing and counting. Closing and counting procedures were assessed positively at 100% of poll closings observed.
• Tabulation. Carter Center observers reported that the tabulation process lacked adequate levels of transparency. Carter Center observers directly observed instances of broken seals and inappropriately open ballot boxes in three of the five tally centers.
The Carter Center offers the following priority recommendations:
• Results from any ballot boxes that were opened in violation of procedure and international best practice should be set aside for additional scrutiny and should not be included in the final results until a formal, transparent, and inclusive review can establish whether they can be considered credible.
• The ECSL should publish detailed results at the polling station level to allow for cross-verification in accordance with international best practice.
The Carter Center was honored to observe the elections in Sierra Leone, with voters casting ballots for president, members of Parliament, city mayors, and local councilors. The elections – the fifth general elections in the country since the end of the decade-long civil war – took place in an atmosphere that was largely calm, with the people of Sierra Leone demonstrating their enthusiasm and determination to peacefully express their will at the ballot box.
The Carter Center has been involved in Sierra Leone’s elections since 2002. For the June 24 elections, the Center deployed observers across all of Sierra Leone’s 16 electoral districts. Carter Center observers have been observing the tabulation process in the five regional centers, maintaining 24 hours a day presence in the Western area and nearly 24 hours a day in other regions.
All of the evidence of the politics of Sierra Leone suggests that Sierra Leone is not a place from which the applicant left in 2018, and to which he may return in 2024, where he will face the risk of persecution or harm, of any kind, at all.
Therefore, the Tribunal can only conclude that Sierra Leone is a safe place for the applicant to return to, given all of the evidence before and available to the Tribunal in this case.
There was certainly no evidence to which any weight can be given that was supplied by the applicant that gives any reason to doubt that Sierra Leone is safe.

FINDINGS

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

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

Statement made on 29 April 2024 at 12:29pm
Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal
ATTACHMENT - Extract from Migration Act 1958
5 (1)     Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)   that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)   that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)   for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)   for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)   in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J   Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36   Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)   a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Details

AGLC: 1821073 (Refugee) [2024] AATA 2743
Case: [2024] AATA 2743
Decision Date: 29 April 2024

CaseChat Overview and Summary

The applicant, a citizen of Sierra Leone, sought review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The applicant claimed to fear persecution in Sierra Leone due to his political activities as an activist for the All People’s Congress (APC), alleging he had been subjected to arrest warrants and physical assault in the context of election violence, and feared detention by state authorities. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant met the criteria for a protection visa under Australian law.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for reasons of his political opinion, as defined by the *Migration Act 1958* (Cth) and the Refugee Convention. This required the Tribunal to assess the credibility of the applicant's claims regarding his political activities, the alleged threats and violence he faced, and the availability and effectiveness of state protection in Sierra Leone. The Tribunal had to consider whether the apprehended harm was sufficiently serious to constitute persecution and whether it was linked to one of the Convention grounds, specifically political opinion.

The Tribunal considered the evidence presented by the applicant, including his account of events and any corroborating material. It assessed the general country information regarding the political situation in Sierra Leone, including the prevalence of election-related violence and the capacity of the state to protect its citizens. The Tribunal applied the established legal principles for assessing claims of persecution, including the standard of proof required and the assessment of subjective fear in conjunction with objective country conditions. Ultimately, the Tribunal found that the applicant had not established a well-founded fear of persecution for reasons of his political opinion, and therefore did not meet the criteria for a protection visa. The decision under review was affirmed.

Orders