1821347 (Refugee)

[2023] AATA 1994

1821347 (Refugee) [2023] AATA 1994 (27 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Michael Doyle (LPN: 5511804)

CASE NUMBER:  1821347

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 10:35am

CATCHWORDS  
REFUGEE – protection visa – Sierra Leone – political opinion – support of the All Peoples Congress (APC) – APC supporter and campaigner in the 2018 election – renowned sportsman – particular social group – sportsmen used by political parties to procure votes from youths in electoral contests – fear of harm from the Sierra Leone People’s Party (SLPP) gang members – capacity to subsist – credibility concern – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A 
Migration Regulations 1994 (Cth), Schedule 2 

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

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 subclass 408 Temporary Activity 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 12 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 information contained in his protection visa application, the applicant is a [age] year old Sierra Leonean national who was born in [Town 1] in Sierra Leone.

10. Based upon information in the protection visa application form that was completed by the applicant on 30 April 2018, the applicant:

    ·     lived at [Address 1], Freetown immediately before travelling to Australia

    ·     has the following family members in Sierra Leone:

    o   his wife [Ms A] (born [date]), whom he married [in] June 2015 has been communicating with via the telephone since arriving in Australia

    o   two children with his wife, including:

    §  a son, [Child B] (born [date]); and

    §  a daughter, [Child C] (born [date])

    o   five siblings, including:

    §  one brother, [Mr D] (born [date]); and

    §  one sister, [Ms E] (born [date]).

    ·     is of Mende ethnicity

    ·     is Christian

    ·     is [an athlete]

    ·     completed his primary and secondary schooling in Sierra Leone between [year] and [year] before training at [a sports club] between July 2002 and April 2008

    ·     has been employed by the Sierra Leone [government agency] [from] 2009 [until] 2018.

11. In relation to his claims for protection, the applicant provided the following information in his application form:

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

    ·     The SLPP won the election in March 2018. But even before the election they threatened him and maintained that if they won the election, he would be in trouble. They even said “we can kick you all out from your job, we are able to harm you and your family”.

    ·     Members of the SLPP have violently attacked members of his [sporting] group. His friend was stabbed by SLPP gangs on 4 April 2018.

    ·     He is the captain of the [Sports Group 1] so he is well-known. He is afraid the SLPP will violently attack him.

    ·     He thinks he will be killed by the SLPP gangs. The SLPP gangs have already threatened his life. Before he came for the [sporting event], he requested an interview to explain his claims in more detail because of the limited time he had to prepare his application.

    ·     The SLPP sent him a text message and said “we are waiting for you”.

    ·     No one is able to protect him from gang violence and attacks. Gangs work outside of authorities. He believes that there is nobody able to assist him. The authority and the whole system belong to the SLPP. They support each other and they won’t assist him.

    ·     He worked in the [government] and is aware of the corrupt system and there is no justice and nobody can assist him against the gang. They replaced all the officials, coordinators, police officers etc… which means they have their supporters all around the country.

    ·     It is impossible to move to another part of Sierra Leone. Since they have won the election, they have authority all around the country and nowhere is safe for him.

    ·     His family does not feel safe at home and his wife is hiding and moved to his friend’s house. His wife moved as soon as she had the news about the election. She contacted his friend and ask him to take her and the children to his house.

    Supporting documents

12. The applicant lodged the following documents with the Department in support of his protection visa application claims:

    ·     various photographs in support of claims that:

    o   threats have been received by the applicant – Photographs of two undated WhatsApp messages received which contain threats from phone [number].

    o   a fellow [athlete] named [Mr F] was harmed in Sierra Leone was harmed – A photograph of a man in a wheelchair with a notation that he was stabbed at night following the announcement of an election result. Another photograph shows the same man unharmed and posing with two other [athletes].  Another photograph depicts a handwritten medical certificate for [Mr F], a [athlete], who was admitted [in] April 2018 and discharged [later in] April 2018 for a ‘penetrating abdominal injury’.

    o   a fellow [athlete] named [Mr G] was harmed in Sierra Leone – A photograph of a man with a left arm in a makeshift bandage on what appears to be a hospital gurney receiving treatment.

    o   the applicant supported the APC – A photograph of crowd attending an outdoor rally in support of the APC. Another photograph of a dozen men purportedly holding a campaign meeting with [Mr H] (APC politician, Sierra Leone’s Minister of [specified portfolio] and the President of [Sport Association 1]). A copy of the applicant’s [Organisation 1] I.D. Card (reference [number]) which includes a logo for ‘All People’s Congress’

    ·     the applicant’s [sporting event] Identification and Accreditation Pass

    ·     the applicant’s Sierra Leone passport (reference [number]) issued [in] 2017.

13. The applicant provided the Department with a signed statement dated 18 May 2018 outlining his protection claims. What follows is a summary of the applicant’s statement::

    ·     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.

    ·     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 party which was in opposition to the Sierra Leone Peoples Party.

    ·     He fears this harm from the SLPP gang members.

    ·     He notes that his case is very similar to those of his friends, [Mr I] and [Mr J]. As explained below, they 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.

    His background and history

    ·     He was born in [Town 1] on [date]. He is Sierra Leonean and Christian.

    ·     He is married and his wife's name is [Ms A] who was born on [date]. He has two children, one boy named [Child B] born on [date] and one girl named [Child C] [date].

    ·     He is the Captain of the National [sport] Team for Sierra Leone.

    ·     He is also a [Occupation 1]. He is involved in the sporting unit of the [government agency] however when he is called upon, he works as a [Occupation 1].

    Problems in country of origin

    ·     The President of [Sport Association 1] requested that the [sporting] team create a group that would advocate for the APC party in the hopes that if the party was successful, [named sport] in Sierra Leone would improve by way of new equipment, training opportunities overseas, allowances, etc.

    ·     President of [Sport Association 1] and Minister of [department] (and APC member), [Mr H], told all [athletes] to campaign alongside APC. Not all [athletes] agreed and they became divided. He believed that if they supported the APC, [named sport] would grow and there would be more opportunities for them. Some agreed, but others disagreed and refused to campaign for the APC, and they spilt along party lines within [Sport Association 1].

    ·     Those that agreed to be involved said "Lets form a group called '[Organisation 1]' - we believe we need [named sport] to grow and the APC will support [named sport]".  [Organisation 1] was a group that was formed to campaign for the APC in opposition to the SLPP. As sportsmen, they are popular and held strong influence on the outcome of politics because they were famous to the public. The president used their status to push the political gain of the APC.

    ·     Sierra Leone [athletes] were divided - some support the SLPP and some support the APC. He was a campaigner for the APC. The [athletes] in his team usually met in the [gym] at the national stadium and would train together. They were loyal to the [now-former] President and stood beside him in the campaign for APC.  Pro-SLPP [athletes] began training separately from pro-APC [athletes] due to political tensions.

    ·     In the time of the campaign, prior to the [sporting event], those pro-APC [athletes] who agreed to campaign against the 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.

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

    ·     They were continuously advised that if the SLPP won the election, SLPP gang members would harm all [athletes] who supported the APC.

    ·     Four members of the [sporting] team were selected to represent Sierra Leone at [a sporting event] in Australia in 2018. When they came to Australia, three of them were APC supporters - [Mr I], [Mr J] and himself. [Mr K] was the fourth person and he was a strong supporter of the SLPP. [Mr K] returned to Sierra Leone following the [sporting event]. When they were in Australia and the results were released for the run-off elections, [Mr K] would often quarrel with [Mr I], advising that the three of them best not return to Sierra Leone because the SLPP gangs would kill them. [Mr K] had warned them against creating the [Organisation 1] group, and members of that group were being attacked.

    ·     The SLPP president's nephew, Junior Bio, is a footballer (well known in Sierra Leone) and is aspiring to be a member of the parliament. Because they campaigned against him strongly for his support of the SLPP, he lost the seat. However, he threatened that if his uncle won the elections, he would eventually destroy them. Because he is a footballer, he was aware of those in the sporting 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.

    ·     An example of the danger they face is after the day they announced the run-off elections, a fellow [athlete] named [Mr F] from their [sporting] team who supported the APC was attacked by gang members back in Sierra Leone. The SLPP gangs approached to 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 [athletes] who stayed back in Sierra Leonne and because he was a supporter of the APC, he was attacked.

    ·     Around 6 or 7 March 2018, [Mr I] received a call from a friend in the [Organisation 1] group, who advised him that [Mr L] (a [athlete] who was involved in APC campaigning) was shot with a ‘Traditional Witch Gun’ which paralysed him. If he 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.

    ·     Another specific instance involved [Mr G], another member of the APC [sporting] 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 [athletes] campaigning in the group and chased him at night from his house. [Mr G] 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 has been repeatedly threatened by SLPP gang members. He has attached a photo of a text message received from the SLPP gang member which stated that his family and he would pay for ''what I did" and the only thing saving his life is the fact that he is outside of the country. It noted that he would kill him and will find his wife.

    ·     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 officer who would support the SLPP group would join the SLPP gang.

    ·     When SLPP came into power the members who were in the [government agency] kicked out those [Occupation 1] 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.

    ·     [A high ranking official] of the [government agency], [Mr M], 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 [an official] of [Mr M]'s ranking, he can only imagine what they would do to him. No one would be able to defend them - neither the police nor the government.

    ·     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 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.

    ·     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 APC president 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, given his [Occupation 1] experience, he knows 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.

    ·     He is not happy about his current situation. He wishes he could return, as he is the captain of the Sierra Leone national [sporting] team and he has the opportunity to go to anywhere around the world. He is a very good [athlete] but he is now stuck away from his home.

    His fears if he is returned to country of origin

    ·     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.

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

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

    ·     He could not relocate to any other part of Sierra Leone because the SLPP are in control of the whole country and everyone knows his face because of his high status in the [sports] community and public in general.

    ·     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

14. The applicant attended an interview with the Department in connection with his protection visa application on 31 May 2018.  The interview was conducted with the assistance of an interpreter in the Krio and English languages.

15. The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. 

    Summary of the delegate’s decision

16. The delegate’s reasoning in support their decision to refuse the application are summarised as follows:

    ·     Typically, a person’s ethnicity is a determining factor in their political support, with Mende people traditionally supporting the SLPP, and those of Temne ethnicity, supporting the APC. The delegate noted the applicant is of Mende ethnicity. 

    ·     The delegate was unable to locate any corroborating information concerning the group, ‘[Organisation 1]’, but was able to locate extensive information concerning the Sierra Leone election generally. The delegate was concerned the applicant’s identity card for the group lacked security features and felt the card lacked credibility. The delegate was further concerned by reports that fraud was commonplace in Sierra Leone. 

    ·     The delegate did accept that as a [athlete], the applicant may have been of interest to political parties interested in campaigning for votes, particularly those of younger voters.

    ·     The delegate considered the applicant’s involvement as a supporter and low-level campaigner for the APC revolved around the desire to increase [named sport] participation and not for any enthusiasm for politics.

    ·     The delegate considered country information which indicated the 2018 election, held on 7 March, did experience some violence, but for the most part was conducted in a peaceful manner.  Following the primary election, a runoff was held on 31 March 2018 (it was originally scheduled for 27 March but was delayed due to an injunction lodged by the APC who had alleged fraud).  On 4 April 2018, the SLPP’s Julius Maado Bio was declared the winner and sworn in as President. There were reports of violent outbursts between SLPP and APC supporters, primarily in Kenema, Makeni and Freetown.  Two days later, the UN-Secretary General commended Sierra Leoneans for completing the elections in a peaceful manner. After the election, allegations of fraud inter alia were made.  Meetings were held between the APC and the SLPP, following which the APC candidate congratulated the new President. Further, on 8 April 2018, a cross-party committee was established to investigate the alleged violence which occurred between the two parties following the announcement of the election. The committee comprised members of both parties.

    ·     The delegate found the country information indicated there had been some violence between APC and SLPP supporters both in the run-up to the election and the immediate aftermath of the election’s results being announced. However, the delegate was not satisfied that violence had continued following the election period.

    ·     The delegate further stated that they were unable to find any corroborating material concerning the applicant’s specific claims of harm having befallen his colleagues in Sierra Leone. The delegate was not satisfied with the images provided by the applicant. Nor was the delegate satisfied with the veracity of the claimed text message. The delegate stated that the applicant was hesitant to place a time-frame on when the message was received, altering between 14, 15 and 16 April. The delegate considered that such messages are easily contrived and without more were not sufficient evidence that the threats were legitimate.

    ·     The delegate found there was no evidence to suggest the applicant would experience harm due to his status as a sportsman or because he had sought protection in Australia.

    Claims and evidence provided to the Tribunal

    The review application

1. On 23 July 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

   Pre-hearing submissions and evidence

2. On 4 December 2022, the Tribunal received a submission from the applicant’s representative which enclosed a copy of the applicant’s statement dated 18 May 2018 and the decision record of the delegate dated 10 July 2018.

   The hearing: supporting documents and oral evidence

3. The applicant appeared before the Tribunal on 12 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.

4. At the outset of the hearing, the applicant provided his original Sierra Leonean passport issued [in] 2017.  The Tribunal made a photocopy of the biodata page of this document and then returned the document to the applicant during the hearing.

5. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below. 

   Post-hearing submissions and evidence

6. On 20 December 2022, the Tribunal received a submission from the applicant’s representative which enclosed documents pertaining to the applicant’s family composition.

   CONSIDERATION OF Claims and evidence

   Nationality: Country of reference/receiving country

7. The applicant claims to be a citizen of Sierra Leone and provided to the Department a copy of his Sierra Leonean passport issued [in] 2017.  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

8. 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

9. 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]

10. 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. 

11. 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.

12. 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.

13. 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.  It is also concerned that the applicant’s associates, including fellow members of the [Organisation 1] group, have been prepared to assist the applicant with his application by providing selective or misleading statements. The Tribunal’s full assessment follows.

    Independent information

14. In March 2018, the opposition SLPP candidate, Julius Maada Bio, won the presidential election in a second-round run-off that was held on 31 March 2018.  The final results were announced on 4 April 2018.  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

15. 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.

16. 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.

17. 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

18. 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

19. 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 youths/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

20. 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

21. 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

22. 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

23. 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, All Peoples Congress (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

24. 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

25. 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

26. In its February 2022 country report on Sierra Leone, Bertelsmann Stiftung indicate that there are ongoing 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

27. 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

28. 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

29. 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

30. 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

31. The applicant fears that of he returns to Sierra Leone he would be subjected to serious harm including discrimination, stabbing, shooting or killing because of his political opinion.  The expression of that political opinion includes his campaigning for the APC and role in [Organisation 1]. He believes that he will be targeted because he is well-known in Sierra Leone because of his [sporting] career success. He states he fears that if he returns to Sierra Leone his life will be in danger from SLPP gangs and expects to be identified and located by SLPP gangs upon his return to Sierra Leone.  At hearing, the applicant stated his belief that the SLPP gangs targeting him are led by Junior Bio who is associated with other SLPP supporters including [Mr N] and [Mr K].

1. 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 Freetown immediately before travelling to Australia.  The Tribunal also accepts that he is a [athlete] and completed his education in Sierra Leone as claimed. The Tribunal also accepts that he trained to become [an athlete] in Bo and that since 2009 he has been a member of the [government agency] in Sierra Leone and was [an athlete] in the [government agency]. The Tribunal also accepts that the advancement of his [sporting] career and appointment to the [government agency] was secured by way of persons affiliated with the APC, initially [Mr O] and then [Mr H]. 

2. Taking into account statements made by the applicant at hearing in conjunction with the documentation before it, the Tribunal accepts that the applicant is married to [Ms A] and that together they are the parents of three children, namely [Child B] (born [date]), [Child C] (born [date]) and [Child P] (born [date]).  The Tribunal also accepts that [Ms A] and their three children live in Freetown and have done so since the applicant left Sierra Leone in 2018.  The Tribunal also accepts that the applicant has a son from a previous relationship named [Child Q] (born [date]). 

3. The Tribunal notes that the representative in paragraphs 13 and 14 of their submission of 22 December 2022 states that the applicant “has three children by his current partner [Ms R]” the youngest of which is named [Child P] as shown on her Child Health Card.  The Tribunal has carefully examined the Child Heath Card and notes that [Child P]’s mother is specified therein as [Ms A] and not [Ms R].  Furthermore, other evidence provided by the representative to the Tribunal on 22 December 2012 specifies that [Ms R] in the mother of the applicant’s first child born in [year].  Taking into the account the totality of the evidence, the Tribunal reiterates its finding that the applicant’s wife and current partner is [Ms A] and they have three children from their relationship, namely [Child B] (born [date]), [Child C] (born [date]) and [Child P] (born [date).

4. 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 [Organisation 1] group.

5. The Tribunal explored the applicant’s knowledge of, 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 was for example able to speak knowledgeably about the APC offering him opportunities to advance his [sporting] career and provide him with employment opportunities in the [government agency]. He was also able to speak about the campaigning activities of [Organisation 1] in support of the APC in the lead-up to the 2018 election. The Tribunal accepts aspects of the applicant’s evidence at hearing in this regard as credible and accepts that he undertook [named sport] demonstrations as part of the [Organisation 1] in order to promote the APC in Freetown, particularly among youth. There was an expectation that he advocate for the APC through his participation in the [Organisation 1] and the Tribunal accepts that he may be identified as an APC supporter in some communities through this engagement.

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

7. The Tribunal has considered the evidence before it and finds that the applicant promoted the APC in his role as a member of the [Organisation 1] 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.

8. 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. On the evidence before the Tribunal, the Tribunal finds that the applicant has never been a member of the APC nor otherwise promoted the APC in other fora such as social media. 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 prior to that period and 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, he did not address APC supporters on political issues in public fora.

9. The Tribunal does not accept because he had been a [Occupation 1] and a [athlete] during the 2018 [sporting event] that this would make him of great renown in Sierra Leone such that he would be regarded as having held a prominent role in the APC.

10. On this basis, the Tribunal does not accept the applicant was a key member of the APC or a strong figurehead of the APC or a well-known APC supporter.

    Political violence

11. On the documentary evidence before it, the Tribunal accepts that the applicant came to Australia as an athlete and member of the Sierra Leone [sports] team and participated at the [sporting event] in March 2018. The Tribunal accepts that while the [sporting event] were 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.

12. 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:

    ·     prior to the applicant’s departure from Sierra Leone in March 2018, SLPP supporters including [Mr N] and Junior Bio threatened the applicant because he chose to support the [Sport Association 1] President [Mr H] and campaign for the APC

    ·     after the applicant arrived in Australia on 26 March 2018:

    o   he received two WhatsApp text messages which contained threats from phone number [specified].

    o   a fellow [athlete] named [Mr F] was stabbed by an SLPP gang member on the day the election results were announced, rushed to hospital and survived.

    o   a fellow [athlete] named [Mr G] was chased by an SLPP gang member and injured himself when trying to escape.

    o   a fellow [athlete] named [Mr L] was shot with a witch gun[29] but survived.

    o   a handball player named [Mr S] who had also campaigned for the APC was killed.

    o   his wife and children have been “on the run” due to concerns for their safety.

    [29] Superstitious belief in the ‘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’ attack. 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

    Threats and intimidation from SLPP supporters prior to the applicant’s departure from Sierra Leone

13. At hearing, the Tribunal explored the basis, nature and frequency of the threats he received from SLPP supporters prior to his departure from Sierra Leone in March 2018. The applicant explained that his fear primarily stemmed from threats and intimidation he experienced in Sierra Leone from SLPP supporters who were involved in the sports establishment in Sierra Leone including [Mr N], Junior Bio and [Mr K].  He stated that the threats and intimidation commenced as far back as 2016 where he had been told by [Mr N] -  “We are only waiting for an opportunity”  - and he understood this to mean that they would harm him once the SLPP attained power. Other intimidatory tactics included an occasion where they damaged the brake lights on his bicycle.  The threats intensified once the [Organisation 1] group had formed, including a threat whereby Mr Bio told him “We are going to kill you guys, we are going to take you out of the way. You guys are a problem in [sport].”

14. The Tribunal is prepared to accept that the applicant may have been spoken to by these SLPP supporters 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 have 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 recurs 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 applicant’s evidence at hearing that he had no knowledge of Mr Bio or Mr [Mr N], either personally or under the auspices of an SLPP gang led by them, having killed anyone or been involved in political violence in Sierra Leone.  On this basis, the Tribunal finds that the applicant has exaggerated the nature of the threats made by these SLPP supporters prior to his departure from Sierra Leone in 2018 and the degree to which he fears harm.

15. The Tribunal also raised its concern with the applicant at hearing that he had only ever campaigned for the APC between November 2017 and March 2018 and did not have a high profile as an APC campaigner or supporter. The Tribunal drew to the applicant’s attention that he had not been harmed by SLPP gangs prior to his departure from Sierra Leone in March 2018 and that recent events, including the protests on 10 August 2022 and their aftermath, 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 him facing any harm in Sierra Leone. The applicant responded by way of insisting that he would be harmed if he returned to Sierra Leone.

    Threatening text messages from an anonymous source

16. At hearing, the applicant clarified that he travelled to Australia to participate in the [sporting event]. He confirmed that [Mr K], an SLPP supporter, was also part of the Sierra Leone [sporting event] team and that [Mr K] would argue with him and other pro-APC team members whilst they were in Australia.

17. [The applicant] claimed to have received two WhatsApp messages from phone number [specified] which contained threats to him and his wife and family. The two text messages sent to [the applicant] 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.

18. The Tribunal asked whether the applicant had made any effort to determine the source of these messages in order to assess whether the threats were genuine. The applicant stated at hearing that the messages were received on [date] April 2018 and he believed [Mr K] sent the messages to him.  The Tribunal raised its concern with the applicant that the messages were not genuine, particularly given that he had ascribed a name to the sender in his phone as “Alicious”.  This name was also followed by three emojis – two violins and a microphone.  The Tribunal suggested that this indicated he knew the identity of the sender.  The Tribunal pressed the applicant further on this issue but the applicant chose not to explain why he had given the sender this name instead reiterating his suspicion that it must have been [Mr K] because he was the only person who knew his mobile telephone number at that time and might be motivated to send such messages.  The applicant was unable to explain why he had ascribed the sender with this name in his phone at the time. The Tribunal also explored the steps that applicant had taken to ascertain the sender’s identity and was told by the applicant that he called the number once from a different Australian phone number but no one picked up.  At the conclusion of the hearing, a colleague of the applicant’s representative who appeared at the hearing commented that the identity ascribed to the send could well have intended to be “Malicious” but a typographical error had been made.  

19. The Tribunal does not accept that the text messages sent to [the applicant] are threats that have been sent from a person or persons who intend to harm the applicant in Sierra Leone now or in the reasonably foreseeable future. The Tribunal finds that the applicant knows the identity of the sender as the applicant was unable to provide a satisfactory explanation as to why they had ascribed that particularly unique name to the sender in their phone. In any case, as confirmed with the applicant at hearing, he has not received any further threatening text messages since [date] April 2018 and his family have never received such text messages. Furthermore, the applicant’s evidence that [Mr K] sent the messages is somewhat difficult to accept when the first sentence in the message clearly indicates that the sender is someone who the applicant had not given their number. 

20. The Tribunal finds that the applicant’s insistence at hearing that the messages were sent to him by [Mr K] is indicative of a willingness to support his own narrative, particularly given the applicant’s deliberate decision not to extensively investigate who sent the messages or even entertain the possibility that [Mr K] may have passed on his phone number to other SLPP supporters who sent these messages. The Tribunal is unwilling to accept that the messages are genuine threats directed to the applicant or could be reasonably perceived as such given the applicant’s limited efforts to ascertain the identity of the person who sent those messages.

    Harm sustained by certain [athletes] in Sierra Leone

21. At hearing, the Tribunal explored with the applicant his claims pertaining to the harm sustained by fellow [athlete] [Mr F]. He stated that [Mr F] was stabbed by SLPP gang members in Freetown.

22. The Tribunal raised with the applicant that his evidence included a photograph of a handwritten medical certificate for [Mr F], a [athlete], 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 T] and underwent an exploratory laparotomy. While the procedure was spelt correctly, the handwritten certificate, whose author is unknown, specifies that the ‘[Hospital 1]’ in Freetown was where the treatment occurred. The Connaught Hospital is the largest hospital in Freetown and there is no ‘[Hospital 1]’ 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. By way of response, the applicant stated that he did not know who wrote the medical certificate but insisted that it must have been a spelling mistake. The Tribunal does not accept the applicant’s explanation for this discrepancy in the document particularly given that the more complex procedure ‘exploratory laparotomy’ was correctly spelt. Moreover, the Tribunal notes that the name of the author of the document is not specified. Therefore, the Tribunal is unwilling to rely upon the document or give it any weight.

23. The Tribunal is also unpersuaded by the applicant’s evidence that [Mr F] was stabbed because he was an APC supporter as the applicant was unable to provide the Tribunal with any explanation as to when the photographs of [Mr F] were taken and by whom.  The applicant was able to confirm that [Mr F] has not been harmed since that claimed incident.

24. 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 supporters and the abovementioned concern in relation to the authenticity of the medical certificate, the Tribunal finds that this claim lacks credibility.

25. At hearing, the Tribunal also explored with the applicant his claims pertaining to a fellow [athlete] named [Mr G]. During the hearing, the Tribunal raised its concern with the applicant’s documentary evidence in this regard and noted that there was no explanation of when the picture of [Mr G] was taken, who gave the applicant that photographic evidence and who chased [Mr G]. During this inquiry, the applicant stated that [Mr I], a fellow [sporting event] team member, had given him this photographic evidence.  [Mr I] told him that a fellow [athlete] in Sierra Leone, namely [Mr L], had sent him the photographs.  The Tribunal then raised its concern with this material given that there was no indication as to when the photographs were taken and that they did not demonstrate that the injuries sustained by the person in these images occurred after being chased by an SLPP gang member as a result of that injured person’s APC support, campaigning or affiliation.  After a long pause, the applicant stated that he did not wish to address that concern apart from stating that the evidence was real.

26. 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 limited probative value of the photographic evidence pertaining to this incident, the Tribunal finds that this claim lacks credibility.

27. At hearing, the Tribunal also explored with the applicant his claims pertaining to a fellow [athlete] named [Mr L]. The applicant stated that [Mr L] had been shot with a witch gun in the leg but did not know who shot him.  [Mr L] stated that during a video chat on his phone he saw that [Mr L]’s leg was became swollen. The Tribunal raised with the applicant that he had not provided any photographic evidence of the harm sustained by [Mr L]. The Tribunal is unprepared 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 L] and how such injuries may have been caused. Thirdly, the applicant has no knowledge of who shot [Mr L] with a witch gun and thereby can only speculate their reason for doing so. These reasons, cumulatively, lead the Tribunal to conclude that no weight can be attributed to this claim.

    Harm sustained by others in Sierra Leone

1. At hearing, the Tribunal also explored with the applicant his claims pertaining to a person named [Mr S] who had campaigned for the APC and was killed a week before the interview with the delegate. At interview, the applicant told the delegate that he knew [Mr S], a handball player, very well and that he had been stabbed in the head in Freetown and the police had done nothing to investigate his death. The applicant also told the delegate that he assumed [Mr S] had been killed by an SLPP gang. At hearing, the applicant told the Tribunal that [Mr L] had told him about [Mr S]’s death and that he had no documentary evidence to support his claim that [Mr S] had been murdered by an SLPP gang. On the evidence before it, the Tribunal is unprepared to accept this claim as the applicant can only speculate on who killed [Mr S] and their reason for doing so. The Tribunal is also not satisfied on the evidence before it that there is a sufficient nexus between this incident which occurred over four years ago and any risk that the applicant faces now or in the foreseeable future.

   The applicant’s wife and children “on the run” in Freetown after the 2018 election

2. The Tribunal notes that the applicant is married and has three children from that relationship, all of whom live in Freetown. The Tribunal notes that neither his wife nor any of their three children have experienced any harm from SLPP supporters or gangs.  At hearing, the applicant indicated that his family had not been harmed because they had moved from his former home at [Address 1].

3. At hearing, the Tribunal explored the nature and extent of the applicant’s concerns for the safety of his wife and their three children. He explained that his wife and children had moved to a number of addresses in Freetown since he left Sierra Leone in March 2018.  The first move was to an address in [Address 2] which was not far from where had lived with his family at [Address 1].  This move, according to the applicant, was required because his family were without the protection of a male figure.  Another move took place whereby the family moved into the home a woman named [Ms U] which that applicant described as “isolated” but could not specify the address.  Given the applicant’s decision not to have his wife give evidence as a witness at hearing, the Tribunal sought to engage with the applicant further about the type of protection that his family obtained through these moves but received only brief and hesitating responses.  When pressed as to why the applicant had not previously raised claims pertaining to these moves within Freetown because his family was “on the run”, the applicant did not offer any explanation apart from reiterating that they had moved and had received no threats since they moved from the house at [Address 1].

4. The Tribunal does not accept the claim that the applicant’s wife and their three children have been “on the run” since the applicant left Sierra Leone in 2018.  Firstly, the applicant’s evidence at hearing in this regard was hesitating, vague and brief.  Secondly, given the absence of a reasonable explanation as to why this claim had not been provided to the delegate before they made their decision, the Tribunal draws an adverse inference regarding the credibility of this claim pursuant to s 423A of the Act.

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

5. 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 such that he would be of any interest to SLPP gangs if he were to return to Sierra Leone.

6. It is also worth noting that when asked at hearing whether he would express any political opinions or somehow be politically active if he returned to Sierra Leone by supporting the APC, the applicant did not engage with this question apart from stating that he is not in Sierra Leone and his awareness of what is happening “on the ground” comes from social media. 

7. 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.

8. In the Tribunal’s view, the applicant’s limited involvement with, and short period of campaigning for, the APC was primarily undertaken to advance his [sporting] career and employment prospects. 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 be targeted, harmed, or indeed killed. In reaching this conclusion, the Tribunal takes into account the limited nature of his relationships with APC leaders, members and affiliates and the 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

9. 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)).

10. 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 approved 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 SLPP supporters where he was threatened and intimidated in Sierra Leone but finds that he has exaggerated the degree to which those threats and intimidatory tactics can be taken seriously and the degree to which his campaigning activities in the lead-up to the 2018 election were, or indeed would continue to be, of any interest to the SLPP, SLPP gangs or any SLPP supporters. The Tribunal finds that the 2018 election outcome may have added to the applicant’s resolve to remain in Australia but that he did not flee persecution or significant harm.

11. 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 insisted that he did not want to return to Sierra Leone and that he would live elsewhere.  The Tribunal sought to explore where he intended to relocate but the applicant response demonstrated a level of uncertainty about his options apart from stating that he did not want to return to Sierra Leone and might consider moving to Guinea, Gambia or somewhere else. In a submission to the Tribunal received on 20 December 2022, the applicant’s representative submitted that the applicant would return to Sierra Leone if his application for protection was unsuccessful but then intended to seek asylum in another country along with his family. On the limited and somewhat vague available material, the Tribunal infers that the applicant would return to Freetown where his wife and their three children reside, seek to re-establish himself there and secure work commensurate with his qualifications and experience until such time as he may decide to move to another country and seek asylum thereafter.

12. 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 reluctant 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 reason of his association with the APC and 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 wife and their three children have been living safely in Sierra Leone since 2018, having suffered no incidents or concerns since the applicant’s departure in March 2018.

13. 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 recurs during elections but the activities generally ease following the conclusion of an election.

14. The next presidential and parliamentary elections are scheduled to be held in June 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.

15. The Tribunal has considered the applicant’s claims that he fears harm in future on the basis of his profile as an APC campaigner and renowned sportsman. Above, the Tribunal accepted that the applicant was an APC campaigner and [athlete] but rejected his claims about being a well-known, nationally recognisable or famous APC campaigner, supporter or leader due to his political activities and status as a sportsman. It found that neither he, nor members of his family, have experienced harm from the SLPP either before or since the March 2018 elections. He has not engaged in any political activity nor has he built 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 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 and affiliate who was a sportsman.

16. 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 him being a sportsman with limited associations with the APC and 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 [Occupation 1] or for any other reason set out in s 5J(1)(a).

    Particular social group

17. In a discussion with the applicant’s representative during the hearing, consideration was given to whether the applicant feared being persecuted for reason of his membership of a particular social group. The representative submitted that the claims related to the applicant’s political opinion but that they would seek instructions following the hearing as to whether the claims could also be characterised as such that the applicant belonged to a particular social group, being ‘sportsmen used by political parties to procure votes from youths in electoral contests’. While the Tribunal accepts that such sportsmen may constitute a particular social group, the representative did not provide any further post-hearing submissions in that regard and there is no evidence to suggest that this particular social group was being singled out for persecution.  In any case, the Tribunal has considered this matter further and does not accept on the evidence before it that such a group of persons are being singled out for persecution for reasons of their membership of that particular social group.  Therefore, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for reason of membership of the particular social group of ‘sportsmen used by political parties to procure votes from youths in electoral contests’ in Sierra Leone if he returns there now or in the reasonably foreseeable future.

    Economic prospects

18. 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[30] – on his return to Sierra Leone.

    [30] To take one of the non-exhaustive instances of serious harm set out in s 5J(5) of the Act.

19. The Tribunal accepts that the applicant has benefited in employment and training and travel opportunities from his association with and support of the APC. However, the Tribunal notes that he has acquired a range of skills through his warehouse work experience in Australia and is capable of securing employment in Sierra Leone in position that does not require government support/party patronage to earn a living. The Tribunal accepts that while the SLPP is in power he may have difficulty obtaining a role in a government agency. 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 work, albeit outside the government sector.

20. 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.[31] However, given the Tribunal’s finding above that he will be able to secure employment in Sierra Leone, the Tribunal is satisfied that he will have resources to draw upon to support himself.

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

21. On this basis, the Tribunal is satisfied that while the applicant may not be able to obtain positions related to government, 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 [sporting event] team

22. Notwithstanding the above, the Tribunal accepts the applicant will return to Sierra Leone having not returned with other members of the 2018 [sporting event] team which travelled to and from Australia in 2018. There is no information to suggest that members of the Sierra Leone [sporting event] team may face harm on return to Sierra Leone because they remained in Australia at the completion of the [event].[32]

    [32] '[deleted]/

23. 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 sportsman who did not return to Sierra Leone with the [sporting event] team 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 sportsman who did not return to Sierra Leone with the [sporting event] team and remained in Australia.

24. 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.

25. 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

100.   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.

101.   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.

102.   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).

103.   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

104.   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).

1. 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).

2. 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

107.   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.

…