1822232 (Refugee)

[2023] AATA 2902

1822232 (Refugee) [2023] AATA 2902 (7 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shamili Kugathas

CASE NUMBER:  1822232

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Luke Hardy

DATE:7 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2023 at 2:44pm

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – athletics coach – campaigned for All People’s Congress party – threats from SLPP supporters – injured at APC rally – accused of not recruiting SLPP supporting athletes for Commonwealth Games – house attacked – wife and daughter raped – credibility issues – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa PV under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant[is] a citizen of Sierra Leone. He arrived in Australia [in] March 2018 as a member of the Sierra Leone [sporting] team competing in the 2018 Commonwealth Games on the Gold Coast, Queensland. He absconded from his delegation and lodged a PV application on 10 May 2018. The delegate refused to grant the visa on 30 July 2018.

3. [The applicant] appeared before the Tribunal on 5 May 2023 to give evidence and present arguments. The Tribunal hearing was facilitated by an interpreter in the Krio-English medium. [The applicant] is represented in relation to this review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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.

6. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

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

   Mandatory considerations

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

10. The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

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

    Claims to the former Department of Immigration (the Department)

12. [The applicant] claimed to have been born [in] Kono District in the Eastern Province of Sierra Leone.  He claimed to have resided throughout his life, however, in Freetown, the national capital, which is in the same province. He claimed to have departed Sierra Leone [in] March 2018, two days before arriving in Australia.

13. [The applicant] claimed to have been [a] coach in Sierra Leone, having studied various coaching courses in the 1990s. He is also trained in [deleted].

14. [The applicant]’s original PV claims are supplemented by two statements lodged with the Department, one on 11 May 2018 the other on 24 July 2018, along with responses he gave to the delegate at his PV interview. For the purposes of this review, he submitted a copy of the delegate’s decision which summarises his claims and describes issues of concern that were raised at the PV interview for comments and response.

15. [The applicant] claimed he was first appointed as [a] coach for the Sierra Leone [sport] association [in] 2010. He claimed that around the time he was appointed as a coach in 2010 he was also approached by the government to campaign for the All People’s Congress (APC) party. He said he agreed to the role because the APC told him in 2010 that the party would increase opportunities and funding for young Sierra Leonean athletes. He said that although his relatives had been supporters of the APC, he had not paid any interest in politics until the APC promised to increase youth sports funding. I note in later evidence to the Tribunal, [the applicant] indicated that government support for sports continued to be inadequate up to the time he left Sierra Leone 2018, although he remained a “passionate” campaigner for the APC, apparently in spite of its failing to deliver in the one regard that, he claimed, had initially attracted him to support the APC actively. 

16. [The applicant] claimed he received threats from SLPP supporters “most of whom are police, army, tribal chiefs, Poro and Bondo Secret Society members … the party [using] these secret societies to win vote[s] and membership.” He claimed they criticised him for bias against selecting trainees who supported that party.

17. [The applicant] claimed in his handwritten statement that he was “elected in December 2017 as campaign chairman in the zone [where] I live.” He claimed that in this political capacity he travelled around the country encouraging others to vote for the APC in the then-forthcoming March 2018 elections. I note that this claim is appears inconsistent with the claim about having been appointed “campaign chairman” in 2010. I also note that [the applicant] claimed elsewhere that travelling around Sierra Leone to recruit youth was already in his job description as a national [sport] coach.

18. [The applicant] claimed that in his dual role as an APC “campaign chairman” and a coach he was accused of bias by members of the Sierra Leone People’s Party (SLPP). He claimed that on 27 February 2018 during the election campaign he attended an APC rally in Freetown. He claimed that some SLPP supporters attacked the gathering and that he was hit near an eye and passed out. He claimed he was taken to the hospital and discharged after three days.

19. [The applicant] claimed that during the election campaign in 2018 he was told by the APC that SLPP supporters were looking for him as they accused him of not recruiting their party members as athletes for the 2018 Commonwealth Games. He claimed that SLPP supporters attacked his house and made several “death threats” against him. He claimed he was advised to go into hiding for his safety and for the safety of his family. However, his statement indicates that he left his wife[and children] in the house. He also claimed to the Department that [in] March 2018 he secretly left his home and told his wife and child to remain indoors.  [The applicant] claimed that he moved into a hostel [for] his own safety until he travelled to Australia [in] March 2018. It is nonetheless entirely plausible that he would have been required to move there with the rest of the [team] in the close advent of the Commonwealth Games in any event.

20. [The applicant] claimed that he learned from a member of the [team], after arriving in Australia, that his home had been invaded and his wife and [daughter] had been beaten and raped. He claimed to have been told that his wife was in hiding and his attackers were still searching for him. He claimed to fear that in the event of return to Sierra Leone he would be harmed by SLPP supporters due to his long term association as a “campaign chairman” for the APC. In support of his claims, he provided the Department with a copy of a voter ID card.

21. The delegate recorded that [the applicant] submitted a photocopy of “an APC membership card” and later went on to accept that [the applicant] was or had been a member of the APC. I have only been able to locate in the Department’s file a photocopy of the aforementioned voter ID card, which makes no reference at all to party affiliations. On the material before me, I am of the view that the delegate to have erred in identifying the card as “an APC membership card”. I am all the more confident in this because, in his original PV application, [the applicant] foreshadowed submitting a “VOTER I.D. CARD” and made no mention at all of the existence of “an APC membership card”.

22. The delegate also recorded [the applicant] having submitted “a copy of a newspaper article which reports that he is of adverse interest to SLPP supporters.” Having undertaken a number of searches and enquiries, I have not been able to locate any such document, or even any reference to it in any of [the applicant]’s claims and submissions. In the circumstances, I regard the delegate’s reference to the “newspaper article” to be erroneous.

23. [The applicant] also claimed in his original PV application that the SLPP will not only kill him secretly, but also have him forcibly initiated into the secretive Poro Society and then kill him.

24. At the PV interview, [the applicant] evidently claimed to the delegate that he was appointed as an APC “campaign chairman” in 2010 and he campaigned for the APC from 2014 until the 2018 elections. He evidently claimed that due to his political activities he was attacked by SLPP supporters and was of adverse interest to SLPP supporters throughout Sierra Leone. According to this evidence, [the applicant] did not campaign during the 2012 election campaign, which would appear to be incongruous with the claim about the APC having recruited him in a campaigning capacity before that. I note, relevantly, that 2012 was the year of the London Olympic Games, but [the applicant] has not claimed any involvement with that event and thus his lack of involvement with the 2012 election campaign seems incongruous with what he claimed were the APC’s intentions in appointing him “campaign chairman” two years earlier.

25. [The applicant] was evidently asked by the delegate if he was politically active in 2018 and, according to the delegate’s record, responded that he was not active due to being focused on his coaching. He claimed he became a member of the APC in November 2017 when he began to campaign for them. Here his evidence was at variance with the claim about having begun active campaigning in 2014. He claimed to the delegate that he was asked around November 2017 to campaign for the APC but was not given a formal role in the party. He claimed his role was to visit colleges and schools to tell young people to vote for the APC so that they would receive government assistance. This evidence, in my observation, did not appear easily to sit with [the applicant]’s claim about having been a “campaign chairman” since 2010.

26. [The applicant] said in his original PV application that he had “lots of enemies who have attacked me in the past due to my role as coach and campaign chairperson.” Relevant to this, he claimed to the delegate that he was attacked by SLPP supporters at a rally in Freetown on 27 February 2018 and he was admitted to hospital for three days with an eye injury. He was then evidently asked to clarify the date on which he was discharged. from hospital and said that it was around [March] 2018. The delegate evidently put to him that that would indicate he was hospitalised for six days. [The applicant] then evidently said that he only knew what he had been told in in hospital. The delegate asked him if he could provide any medical evidence and he said he had not been given any medical documents on discharge from the hospital. I note that there were at least four full days between 27 February and [March] 2018.

27. The delegate asked [the applicant] if the incident he attended, where he was injured, was reported in the media and he responded that at the time it was too dangerous to report such an incident. The delegate then put to [the applicant] that such incidents in Bo and Kenema had indeed been reported on the 27 February 2018. (The delegate cited a document accessed by the Department in putting this position to him.) The delegate put to [the applicant] that, given he was a coach in the national Commonwealth Games team, it seemed odd that the incident was not reported in the media and, in response, [the applicant] evidently said the media was focusing on other matters.

28. [The applicant] told the Department at Q.41 of his PV application form that he had lost contact with his wife in Sierra Leone. He said in the statement lodged on 24 July 2018 that he “did not know where they are now or if they are alive.” He told the delegate that he had been unable to make or restore any contact with his wife and children.

    Evidence given at the Tribunal hearing

29. [The applicant] told me at the Tribunal hearing that his sister, wife, son and [daughter] all live in Freetown although they have moved from their previous abode there. He said at one stage of the hearing that both of his parents had died. However, he later appeared to say that his brother, who lives as a farmer in Eastern province, is looking after their [age] year-old mother. He said he has a sister who got married and moved out to live in another part of Freetown. He said that although his family supports the APC it is not currently suffering any potentially relevant problems. [The applicant] told me he is currently financially supporting all his family members in Sierra Leone. 

30. [The applicant]’s evidence at the hearing appeared to contradict what he told the Department in his PV application form, where he said that his mother, brother and sister were living in a country or countries “unknown.”

31. On the evidence before me, [the applicant] is not out of contact with his wife or children and they all appear to be living their day-to-day lives. Also, on the evidence before me, they and other members of his family, notwithstanding its purported reputation for supporting the APC, do not appear to be living in the face of any potentially relevant harm. They are evidently all living under the benefit of remittances he sends home from his work in Australia.

32. [The applicant] told me he used to be a [sportsperson] until he was hit by a car in the 1990s. He said he then retrained as a coach. He said he had been involved with Sierra Leone’s international team since the 1990s. [The applicant] told me his coaching was specialised to [certain] events. He described having trained athletes for the 2010 Commonwealth Games in New Delhi: he acknowledged that the demands on him and the athletes in the two months before those Commonwealth Games had been “intense”. He said he then coached athletes to qualify for the Rio Olympic Games in 2016. He said that the last two months before the Rio Olympics had also been intense, not least because the Olympics teams received no financial support from the Sierra Leone government. He acknowledged that the APC formed government throughout this period. He said, however, that the government was dealing with one Ebola epidemic after another at the time.

33. I asked [the applicant] how sporting institutions in Sierra Leone tried to improve their funding base and he said that for his own part he had been “a little bit involved with the APC.” He did not suggest, however, that this improved the government’s sports funding vote for the Rio Games or any since. He said the national team had to rely on top-up grants from the IOC and the Commonwealth Games Committee (CGC). He said the CGC tended to be more generous in helping with the cost of uniforms, sports gear and team members’ per diems, etc.

34. I asked [the applicant] to give me some detail about his having been “a little bit involved with the APC.” He said he used to be involved in organising youth athletic competitions. He also said he used to be involved in organising an annual youth sports meeting held in December. These examples struck me clearly enough as sporting activities but not, in the detail provided, as party political activities, or even party-community networking activities. [The applicant] confirmed the impression that there was little or no link between the activities he conducted and APC involvement, saying that government funding for these sporting events tended to be inadequate.

35. I asked [the applicant] if the lead-up to the 2018 Commonwealth Games was intense. He indicated that it was, saying he carried a high level of responsibility “day in, day out”. However, at a later stage in the hearing when I was asking him about his designated role with the APC, [the applicant] said that his role as Commonwealth Games [coach] left him plenty of time every day to contribute actively to the APC’s 2018 election campaign. He said he only trained athletes from 6:00 to 10:00 am and had the rest of the day to himself. When I asked him to state his designated role in the APC, he said he had no “official title”. This evidence struck me as being inconsistent with earlier claims to have been an APC “Campaign Chairman”. I asked [the applicant] what he meant by having no official title, as the suggestion seemed to be that he might have had a secret or not generally disclosed one. In reply, he said his APC title was “youth leader” or “campaign leader” in his “zone,” which he described as being his own local suburb. He said that in his role, he interfaced with APC “Campaign Managers”.

36. Here, [the applicant]’s evidence struck me as being confused, as he had previously that to have been appointed as a Campaign Chairman for the APC in December 2017 in, or for, the zone where he lived and that the role involved him travelling “around the country encouraging others to vote for the APC.” His evidence at the Tribunal hearing indicated that his purview in or on behalf of the APC would only have been in one suburb, meaning that a national purview involving travel throughout the provinces ought, more likely, to have been the role of someone with responsibility for an area far greater than that covered by a Freetown suburb, such a “Campaign Manager”, whose role, he implied involved much more responsibility within the APC than his own. It also struck me as incongruous that [the applicant] would have any time to travel “around the country encouraging others to vote for the APC” from December 2017 onwards because he was training athletes in Freetown for the Commonwealth Games from 6:00 to 10:00 am.

1. I asked [the applicant] for information about the “Campaign Manager” to whom he purportedly reported. He said his name was [Mr A]. I asked [the applicant] if he knew what [Mr A] is doing currently and he said, “He’s out of a job.” I asked [the applicant] if [Mr A] might not currently be engaged in the 2023 general and presidential election campaigns and he said, “I think he might.” I then asked [the applicant], why, if he though that [Mr A] might still be active with the APC in a campaigning capacity, he could not also be there himself campaigning for the APC. In reply, he said, “I’d be tempted to be part of the campaign. I’m so passionate. [However,] they might kill me.” I put to him that nobody had killed him between the election campaigns of 2012 and 2018, and he said that inter-party conflict had become more intense between 2016 and 2018.

2. [The applicant] talked about the occasion of his eye injury on 27 February 2018. He said there was an election rally that turned violent. He described a crowd of APC supporters, densely grouped in a particular location so that “you can’t move around at that time.” He said there were hundreds, and even up to a thousand, APC supporters gathered when a rival political group, also in the hundreds, appeared at the scene and “threw lots of stuff.” He said the clash went on for about four hours. I asked him how the clash was brought about to an end and he digressed. He seemed to say that the group attacking the gathering “loved the secret society” and wanted to have a ceremony in the location of the rally.

3. I note that [the applicant] claims to have passed out upon being struck in the head with the rock. In the claimed circumstances, it would be unreasonable for a person to be expected to provide an eyewitness account of how such an event ended. It is still the case, however, that [the applicant] produced no independent evidence of what is purported to have devolved into a four-hour riot between politically partisan groups in Freetown on 27 February 2018. In any event, I note that this is the only specific claim made by [the applicant] about harm or attempted harm between 2012 and 2018 and it is difficult on the evidence provided to conceive that he was even specifically targeted. 

4. I asked [the applicant] if his reference to a “secret society” was an allusion to the Poro Society, and he indicated that it was. I asked him if his claimed fear of being forcibly initiated into the Poro Society might be based merely in bald speculation: the Poro Society generally initiates males in their early teens and is more a feature of Muslim life in Sierra Leone; there is no evidence in this case of a capacity on the part of the SLPP to call in the Poro Society to help do away with a foe in the APC. In response, [the applicant] said, “They can voodoo you.” I put to him that this did not appear to have happened, at least with any effect, between 2010 and 2018. He did not satisfactorily respond to this position on its point.

5. I asked [the applicant] to talk about what would happen in the event of an APC win or an SLPP win in the 2023 elections. He said that in the event of an APC win, APC supporters would still have scars “in their hearts”. In the alternative, he said that the SLPP would show its anger towards him because they think he did not select any SLPP supporters for inclusion in international sporting events.

6. I asked [the applicant] if he thought he would be persecuted for reasons of being a defector, and he said people in Sierra Leone will not trust him. He said he will not be able to get his old job back. He said the SLPP will do whatever it can to bring him down.

7. [The applicant]’s adviser said that [the applicant] is well-known in Sierra Leone and an imputed threat to the upcoming 2023 elections. I presume she meant that he imputed to be a threat to the SLPP’s chances of retaining power.

8. We then discussed the APC letter that [the applicant] had submitted to the Tribunal on 28 April 2023. That letter is dated [February] 2023 and purports to come from the APC’s current Interim Secretary General. It states that [the applicant] has been and continues to be a member of the APC. It says that he was the leader of the youth wing of the APC in a named local constituency in Eastern province. It says he “was actively involved in every party activity since 2014 to 2018” and would have held an executive position with the APC had he not been involved with sport, as that involvement barred him from holding any formal office in the APC. The letter goes on to say that [the applicant] was assigned by the APC to coach “party youth” and was held in disrepute by members of the SLPP. The letter vaguely refers to “colleagues” of [the applicant]’s having been arrested and jailed, but does not say whether these are sporting colleagues, or APC comrades, or neither or both. The letter says that the APC has been able to protect [the applicant]’s family from being harmed. There is no explanation, in the claimed circumstances, as to why this protection could not extend to [the applicant] as well. In another place, the letter says that [the applicant]’s wife, who has faced ongoing harassment, has been relocated to an undisclosed locality, a position that contradicts evidence that [the applicant] provided at the beginning of the Tribunal hearing. Finally, the letter asks that Australia “provide protection and support for this promising young man.” On this last note, it seems reasonable to wonder if the author of the letter is even acquainted with [the applicant] and his history: [the applicant] was [age] at the time of the letter’s writing and therefore perhaps hard to describe as a “promising young man.”

9. I asked how it was possible that the author of the letter, who purports also to be an active member of the APC, is able to continue his political career in Sierra Leone, writing letters for a person in exile, while he himself appears just to be getting on with his APC role. [The applicant] said in response that the author of the letter is “a high figure” and able to afford security. I have duly considered this response, but it seems hard to give much weight to it because the author of the letter does not suggest having faced persecution during the climb from lower ranks to his current position.

10. Interestingly, the letter suggests that [the applicant] was barred from integral involvement in the APC’s political project because of his involvement in sport. In [the applicant]’s evidence, it appears solely because of his involvement in sport that the APC had any use of him at all.

11. Amongst [the applicant]’s evidence, there seemed little basis for him to persuade young athletes to support the APC because, as he put it, the party had been in government for around twelve years and its financial and other support for [the sport] had generally been inadequate. [the applicant] appeared unable to clarify just what he was able to bring to the political debate that so chagrined the SLPP, apart from being the subject of what he implied were false accusations about preferring APC-supporting athletes for selection to the national team.

12. I put to [the applicant] towards the end of the hearing that five issues continued to concern me: his use of the title of APC “Campaign Chairman” in the face of other evidence about having no formal role in the APC at all; his description of his coaching role and political activities in 2018 being so localised to Freetown as to attract incredulity to his claim about having been assigned by the APC to travel around Sierra Leone at that time to “recruit” young new APC members; the APC evidently providing no financial incentive to the [sector] in Sierra Leone in exchange for its loyalty; the question of how much if any meaningful time a Commonwealth Games team coach could have given to the APC electoral campaign in 2018 even in a very localised part of Freetown; and the fact that [the applicant] had described his activity with the APC as being merely “a little bit involved”.

13. In reply, [the applicant] said he worked within his local zone but was invited to other parts of the country. I put to him that he described travel in other parts of Sierra Leone as being taken up with athletic competitions, and he said that this was not the case during the election campaign. I asked him about the apparent lack of any policy advantage for youth considering whether to support the APC and he repeated his earlier oral claims about lack of financial support. As to how much or little time he would have had to make any potentially meaningful contribution to the election campaign, [the applicant] indicated that the SLPP knew coaches to be administrators who go home early each training day, giving them enough time to work for their party of choice. As to the claim about having been “a little bit involved” with the APC, [the applicant] said that this had just been a poor choice of words.

14. I asked [the applicant] if he could access any contemporaneous evidence of correspondence with the APC, i.e., material dated 2018 or earlier. In reply, [the applicant] said he had not used email in Sierra Leone. He went on to say that notwithstanding his not having engaged in written correspondence during his years of association with the APC there was some kind of archive he had kept that had been destroyed in a fire at some stage. He provided no evidence of the archive or the fire. It was hard to regard this part of [the applicant]’s evidence as being in any way impressive. It caused me to wonder on what basis the APC Interim General Secretary had made his various assertions about [the applicant], not least because the one about [the applicant]’s wife having been moved to a secret location due to having faced ongoing harassment seemed contradicted by [the applicant]’s own oral evidence in this matter.

15. The adviser, in her closing submissions, asked that I bear in mind the Australian courts having ruled that a “real chance of being persecuted” may amount to as little as a ten percent. chance. I have duly borne that in mind.

    Independent country information

16. I have had regard to independent information discussing treatment of Sierra Leonean athletes, coaches, team supporters and other members of travelling delegations who attended international sporting events, sought asylum and later returned or were returned to Sierra Leone.  

17. In June 2006 Australia’s Department of Foreign Affairs and Trade (DFAT) responded to questions from the former Immigration Department’s Country Information Service (CIS):

    QUESTIONS: [16.06.06]

    … Q4. What type of treatment from the government and their community can one expect if these athletes were to return to Sierra Leone?

    Q5. Considering the track record of the government in terms of human rights violations and widespread corruption in the government, is it fair to say that these athletes will not receive a fair hearing?

    … ANSWERS: [27.06.06]

    … A4. There may well be public criticism from the government and disapproval some parts of the community, though others may well say that their action was understandable and forgivable. There is no indication that overt mistreatment or abuse of human rights is likely, and we are not aware of any evidence that they have committed an offence for which they would be liable for prosecution or punishment. It seems quite likely that the Sierra Leone Government (SLG) would be concerned to demonstrate that it remains faithful to its undertaking to the Australian Government that no action will be taken against them. We and other governments would have influence in reinforcing that commitment and the SLG would be wary of being open to criticism for taking the very kind of action about which it claims the athletes are making baseless accusations. While there may be some temptation to make an example of returning athletes to discourage others absconding in the future, the SLG might just as likely prefer to reward those who have already returned - which we understand has happened in one case already - and be content with arguing publicly that the absconders' return and lack of mistreatment was a vindication of its stance that their claims were and unpatriotic, hoping that this should deter repetition in the future. It should be stressed that these comments are based on an assessment of the most likely scenario, but we cannot predict the outcome with certainty given that this case is unique.

    A5. The SLG does not have a particularly bad track record in terms of human rights violations, certainly with respect to extreme abuses. Extreme and systematic abuses of the kind committed by the combatants during the civil war no longer occur. The US State Department annual human rights report on Sierra Leone (see gives a comprehensive overview of the kinds of concerns that have been raised. The latter fall under a wide range of headings, but there are few instances reported of serious abuse, such as unlawful deprivation of life, torture, unlawful disappearance, unlawful detention, political prisoners, systemic discrimination on religious or ethnic grounds (although there have been some high profile arrests or court cases, including Golley's, that have been accused of being politically motivated abusing due process). Overall, there is nothing that gives particular concern that they are likely to be mistreated, although one would might [sic] expect that they would not be favoured in terms of future selection on sporting teams or in receiving government assistance to pursue sporting careers. We are in any case not clear what is meant by a fair hearing, other than in a colloquial sense of the attitude people adopt to them, as we are not aware of specific criminal charges or administrative action that might lead to an actual hearing. Nor are we clear that the widespread corruption referred to in the question would be relevant, other than it might make it easier for someone to undertake a vendetta against them with reduced risk of being caught or punished. However, as noted in relation to D above, political interest would make it less likely that anyone in government would take such action. Corruption can also work to blunt the intentions of those in high places.

18. In 2006 The Sydney Morning Herald reported[1]:

    Sierra Leone's government has reacted angrily to news of the missing athletes. "The government deplores the behaviour of the athletes that have tarnished the Image of the west African state," Sports Minister Dennis Bright said In the capital, Freetown. Athletes were "properly warned about the implications of deserting because of the past experiences", he said. President Ahmed Tejen Kabbah also addressed the team before it left for Melbourne, Mr Bright said. "The president encouraged them not to bring Sierra Leone Into disgrace and they gave us the assurance ... that they would not behave like those had done before," he said. The Sierra Leone team attaché Robert Green made no attempt to deny the athletes could face violent reprisals, including possible genital mutilation of the three women, if they returned home. But team officials were "incredibly upset" and disappointed with the athletes' actions, he said. Asked how the Sierra Leone Government would react if the athletes returned now; he said: "There is no comment from the team about that. But you know I don't know if there'll be a Government welcome."

    Humanitarian workers say the athletes are wrong to say they risk being beaten, jailed, forced into female genital mutilation or killed if they return. "It's absolute nonsense," said Sidi Bah, the director of the National Commission for Social Action, a government body. "The country's guided by the rule of law ... there is no way the Government is persecuting anybody." … A humanitarian based in Sierra Leone's capital, Freetown, and involved with international protocol for asylum seekers, said the athletes' claims were a fanciful means to escape the grinding poverty of their strife-torn country. "It's simply a question of economic migration, period," said the humanitarian, who cannot be named for bureaucratic reasons. "The gross human rights abuses to the point of people running away to seek asylum are not true."

    The athletes' attempt to jump ship had barely made a ripple back home, he said, because people were more worried about getting food. Aid workers acknowledged that female genital mutilation was a serious concern, affecting up to 80 per cent of Sierra Leonean women. However, they doubted claims that adult women had no say in the matter. David Addington, the sanctuary's chairman, who is helping the athletes with their claim for asylum, yesterday disputed the criticisms as "a government agency talking".

    [1] ‘Six more athletes who fled Games granted bridging visas,’ The Sydney Morning Herald, 29 March 2006

19. Sierra Leone's Ministry of Youth and Sports in March 2006 issued a press release (as reported by Radio Democracy):

    … The Ministry of Youth and Sports, in a press release, wishes to inform the general public that the officials who led the Sierra Leone sport contingent to the 14th Commonwealth Games in Melbourne, Australia, have confirmed that 14 members out of the 22 athletes including boxers, cyclists and weight lifters who represented the country, have disappeared from the [games] village in Melbourne. The release continues and says that 12 of them are now seeking asylum in Australia. The Government of Sierra Leone, through Ministry of Youth and Sports, says such actions are clear manifestation of unpatriotic act. It shows that the athletes have no love for their country. The release further states that in order for the athletes to have a stay in Australia, they are creating all sorts of ugly pictures about Sierra Leone including female genital mutilation and killing of people. The release concludes that government is totally against such acts as Sierra Leone does not deserve the bad and humiliating statements giving to the international community especially those that can scare investors away. The government, as a result, is trying to get on to the authorities in Australia and inform them that what the athletes said about the country is not true.

20. In August 2006 Sierra Leone's Information Minister spoke to Reuters:

    FREETOWN - Sierra Leone accused Australia of setting a dangerous precedent on Monday after it granted permanent visas to 10 athletes who applied for asylum there during the Commonwealth Games earlier this year. Two-thirds of the West African state's 21-member team applied for asylum after disappearing from the athletes' village in Melbourne in March. One said he feared being killed if he returned to Sierra Leone, devastated by a 1991-2002 civil war. They were initially granted bridging visas but 10 had now been given permanent visas after convincing immigration officials they were legitimate refugees, Australian media reported over the weekend. "The decision by the Australian government ... is most unwelcome and we see such an act as exploiting young athletes from developing countries," Sierra Leone's Information Minister, Septimus Kaikai, told Reuters in the capital Freetown. "It says to other athletes to follow the behaviour of the 10 now granted visas by putting their motherland to shame in favour of greener pastures," he said. … Australian Prime Minister John Howard warned in March that Canberra would not give widespread asylum to athletes who went missing from visiting sports teams. Australia has some of the toughest policies in the world against illegal immigration.

21. A 2014 GlobalPost article on athletes going missing stated:

    Sierra Leone officials … lobbied Australia to deny its athletes’ asylum applications after the 2006 Melbourne games.[2]

    [2] Purtill C, ‘When athletes go missing’, GlobalPost, 18 April 2014, on the PRI [Public Radio International] website.

22. In February 2018 Sierra Leonean newspaper Concord Times quoted sports authorities warning Sierra Leonean 2018 Commonwealth Games athletes against overstaying as they would face Australia’s ‘”very strong immigration measures”’:

    Sports Authorities in Sierra Leone have warned athletes against any thought of overstaying in Australia after the 2018 Commonwealth Games, insisting that such thoughts must be banished. According to the President of the National Olympic Committee of Sierra Leone (NOC-SLE), Dr. Patrick Coker, athletes who decided to overstate could face the consequences, adding that this would be the first time legal paper would be out against such action before the games. He further stated that stringent measures were in place to monitor members during the event. Deputy Director of Sports, Shamus Mustapha, who is also a member of the Commonwealth Advisory Board on Sport (CABOS), in his submission, advised all athletes to think twice and the consequence of staying back. He said: “It will be at anyone disadvantage of deciding to defect because Australia is having very strong immigration measures.” The sports officials’ warning was followed by with the distribution of an article [in The Courier Mail Brisbane newspaper quoting Home Affairs Minister, Peter Dutton] which the Australia authorities in January warned athletes planning to compete in the Games that anyone caught overstaying their visas after the event will be dealt with firmly [by Australian authorities].

1. In July 2016 Sierra Leonean newspaper Awoko reported Sierra Leonean sports authorities warning Rio de Janeiro Olympic and Paralympic Games athletes against overstaying as they would face ‘very severe’ Brazilian Immigration Act penalties:

   For the first time in the history of Sierra Leone and under the leadership of Dr. Patrick Coker as President of National Olympic Committee (NOC), immigration officials on Friday, 22nd July 2016 briefed the country’s joint Olympic and Paralympic delegation to this year’s Olympic and Paralympic games in Rio, Brazil.

   When addressing the delegation, Abdulai Sheriff Kargbo, a senior immigration officer explained the primary responsibility of all immigration operatives all over the world is to regulate the movement of persons embarking and disembarking the country.

   He said immigration laws globally are generally interrelated and operate under the same legal framework. He also stated that countries all over the world are working assiduously to achieve positive objectives in combating transnational organized crimes, such as irregular migration, terrorism, human trafficking, and human smuggling and drugs trafficking.

   He said entry into Brazil is regulated by the National Immigration Council established by the Immigration Laws of the country and is responsible for the regulation of visa and the monitoring of the movement of persons in and out of the country.

   He revealed that Immigration Law No. 6, 815 of the Immigration Council was promulgated on 19th August, 1980 and is implemented under Decree No. 86715181 and determines the conditions of foreign nationals visiting or migrating and staying in Brazil. He said since then, no substantial amendment has been made to that decree.

   Kargbo went on that one of the key clauses of the Brazilian Immigration Act indicates strong prohibition of the legalization of clandestine and irregular foreign nationals and the transformation into permanent visa of their transit, temporary residents subject to articles 13, 1, 11, 111, 1v and VI contrary to the visa regulations.

   He also stated that if a person over stays in Brazil, that person would be subjected to a fine of R$ 8.28 per day with the maximum fine being R$ 828 whether you overstay 100 days or 10 years the fine remains the same.

   He therefore admonished the athletes and officials not to think about absconding because the repercussion will be very severe, pointing out too that Brazil is currently going through serious economic and political upheavals.

   He noted that if the athletes and officials attempt to abscond, their actions will send bad signal about Sierra Leone to the entire world. Other members of the immigration department made vital contributions.

   Speaking on behalf of the Sports Ministry and the National Sports Council, the Deputy Director of Sports, Shamshu Mustapha thanked the NOC and the Immigration Department for the seminar.

   He affirmed both the Ministry and the Sports Council’s abhorrence to human trafficking, asserting that both institutions will never support athletes or officials who abscond during assignments.

   “Now that you have the opportunity to represent Sierra Leone, you should be thinking of winning medals or improving your individual times. Please refrain from absconding and focus on your performance. I wish you all the best and hope you have a wonderful competition,” Mustapha bade farewell to the athletes and officials.

2. The Amnesty International 2020/21 report[3] notes that ‘[t]he political tensions between the ruling Sierra Leone People's Party and the All People's Congress (APC), the main opposition party, persisted’.

   [3] 'Amnesty International Report 2020/21: The State of the World's Human Rights', Amnesty International, 6 April 2021

3. A December 2020 report[4] on political violence in Sierra Leone produced by the Armed Conflict Location & Event Data Project (ACLED) in partnership with Clingendael - the Netherlands Institute of International Relations and the West Africa Network for Peacebuilding-Sierra Leone (WANEP-SL), indicates that there were ‘early signs… that political violence in the country is on the rise’. The report notes that ‘there is limited evidence to make substantial claims about an increase or decrease of political violence and its drivers. Presently, debates in the country about political violence are often based on perceptions and anecdotes which cannot be taken at face value’. The report stated that ‘[c]ombined data from ACLED, WANEP-SL, and SL-LED [Sierra Leone - Local Event Dataset] show that political violence in Sierra Leone is increasing. Since 2014-2015, a slow increase in political violence has been recorded. Violence peaked around the 2018 elections and has remained at high levels since’. Most political violence in the country was ‘driven by political competition’. Local politics had ‘become increasingly subservient to national politics’. There were ‘various examples of how very local communal conflicts are becoming entangled with the tensions at the center between the Sierra Leone People’s Party (SLPP) and All People’s Congress (APC), as well as between factions within both parties’. The report notes that in the period after the March 2018 elections in Sierra Leone:

   Rather than a decline in violence — as is common during a post-election period — political violence in Sierra Leone accelerated. Since September 2018, political violence increased to about 10 events per month, with occasional peaks of nearly 30 events (an average of one incident every day of the month). All three forms of competitive violence have increased: direct clashes between political parties, internal party violence, and violence targeting civilians by or directed against political parties have all significantly risen… This report finds that the rising levels of violence are a result of increasing political competition in Sierra Leone, first in the form of electoral violence and then in the form of competitive party violence outside of elections. This violence is intimately tied to attempts to rebuild Sierra Leone after the w ar. Political competition has been institutionalized through the building of political parties and re-introducing competition at the local level.

   [4]  ‘When Emerging Democracies Breed Violence: Sierra Leone 20 Years After the Civil War’, de Bruijne, K, Armed Conflict Location ＆ Event Data Project (ACLED), December 2020

4. The same report argues that the reasons for the increase in political competition were firstly, ‘that the APC and SLPP are increasingly at loggerheads and are willing to use violence against one another’. Secondly, ‘local actors have increasingly become a target for national politicians and political parties in post-war Sierra Leone’, with the main result being ‘that the country’s political party cleavage between the SLPP and APC is reproduced at nearly every local level’. A third reason given for the rise in political violence is ‘there are more and more internal factional party fights, and these fights are accompanied by violence’. According to the report: In summary, political violence is driven by a number of different factors and perpetrated by a host of actors in Sierra Leone. However, the recent increase in violence has clearly identifiable characteristics and causes. Violence is rising because of increasing political competition for formal state and party offices and to ensure local allegiance to institutionalized parties.

5. The USDOS report on human rights practices in Sierra Leone for 2020[5] cites the non-governmental organisation (NGO), the Center for Accountability and Rule of Law, reporting that 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’.

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

6. An article[6] in The Sierra Leone Telegraph dated 14 January 2020 refers to ‘at least one person – an APC supporter’ being seriously injured in violence that occurred ‘outside the opposition All People’s  Congress (APC) party office’. It was ‘not clear what started the violence, but from various video clips published on social media, large crowds of APC supporters could be seen shouting about being attacked by supporters of the ruling SLPP party, who they said were throwing stones at the APC supporters’. APC supporters claimed ‘the minister of internal affairs – Lahai Lawrence Leema, who is responsible for the country’s police force, was seen driving past the APC party office at the time of the attack on their supporters’. There were ‘some eye witness reports’ that the attack on the APC supporters started when a funeral cortege of a senior SLPP supporter drove past the APC party office. There had been similar violence a few months previously ‘at the APC party office when police stormed the office in an attempt to arrest supporters who they said were throwing stones at the police and SLPP supporters’.

   [6] “Another senseless bloody violence erupts at APC party office in Freetown,” The Sierra Leone Telegraph, 14 January 2020

7. I have had regard to the following information[7] from UNHCR Refworld about the Poro Society in Sierra Leone:

   [7] Canada: Immigration and Refugee Board of Canada, Sierra Leone: Information on the Poro Society, including rituals and initation; ability to refuse initiation or leadership roles; availability of state protection (2015-July 2017), 18 September 2017, SLE105973.E, available at: [accessed 11 October 2022]

   According to sources, the Poro Society is a male secret society ... A 2011 article, written by academics from the Universidad Rey Juan Carlos in Spain and the University of Makeni in Sierra Leone, on the role of secret societies in forest conservation in Sierra Leone, states that the Poro Society is "for men belonging to the temne and mende ethnic groups" ... Corroborating information on the ethnicity of Poro Society members could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

   A chapter in a 2015 book on peace building in post-conflict Sierra Leone, authored by Paul Jackson, a "political economist working predominatly [sic] on conflict and post-conflict governance," including "extensive experience in Sierra Leone" explains that "these societies play an important role in regulating social events, respect, and control" .. A 2017 report by the SMART Consortium, on the "barriers and enablers to community acceptance and implemenation of safe burials" during an ebola outbreak in 2014, indicates that secret societies in Sierra Leone "were introduced to prepare the male and female children for adulthood" ... According to a 2012 book entitled African Myths and Beliefs [2], the "central focus of the [Poro] society was and remains the preparation of adolescent boys to take their place in society" ... A 2017 academic article "explor[ing]…the socio-cultural power structures of the Poro and Bondo secret societies" in Sierra Leone …, states that "[m]embership of secret societies is the prerequisite for gendered personhood and carries high purchase and social prestige in the local socio-political organization and in national politics in Sierra Leone" …

   According to sources, new members are marked with scars ... Allan et al. further explains that, during initiations

   the boys stay in a camp away from their parents and friends, sleeping out in the open and shouting to scare off strangers who happen to come near. There they learn the ancient traditions and practice drumming and Poro songs. They are …taken before masked initiates impersonating spirits, the chief of whom is known as the Gbeni. At the end of the training they return to the community as fully fledged adults …

   According to the same source, the initiation "takes place in a series of rituals lasting from November to May" ... The 2017 SMART Consortium report cites "a local authority in Port Loko district" as saying that "[s]ometimes the initiation ceremony [for secret societies] takes close to three years teaching initiates their role in society" ... The report adds:

   Meanwhile these traditions demand a seclusion ceremony known as 'Kantha' for members such as traditional leaders, ceremonial chiefs, and others who hold positions in the secret society ...

   Information on the treatment of individuals who refuse initiation and/or leadership roles within the Poro Society could not be found among the sources consulted by the Research Directorate.

   Information on state protection was scarce among the sources consulted by the Research Directorate within the time constraints of this Response. The 2011 academic article on the role of secret societies in forest conservation in Sierra Leone states that "[m]ost members of Sierra Leonean society are initiated into one secret society, and their membership will last until their death" ...

   Jackson's 2015 book chapter indicates that "[c]hiefs are part of these societies but not necessarily in control of them. However, it would be difficult for a chief to consistently act in opposition to a secret society" ... According to Allan et al., the "Poro numbers many of the nation's highest-ranking officials among its members" ... The 2017 academic article similarly states that "most of the ruling male elites hold [Poro] membership because of its symbolic power" ... The same source further states that members of the Poro secret society "use their position to evade the law and go unpunished for human rights violations in the name of 'defending culture'" ...

   A July 2016 article in the Sierra Leonian newspaper the Concord Times reports that "Poro men attacked the [Republic of Sierra Leone Armed Forces] Maritime Wing Base in Bronthe" and 12 people were arrested as a result ... The article further quotes police Superintendent Amadu Mohamed Turay as stating

   "[w]e are still investigating the matter and I cannot proffer any charges at the moment. What is very clear is that the entire township came under attack by the Poro boys. I am a member of the Poro society and I am not in any way intimidated by their activities, I want to inform the public that the leader of the group, one Michael Palmer, has also been arrested."  …

   A May 2017 article by the Awareness Times, a Sierra Leonian newspaper, reports that seven persons were accused of allegedly murdering "famous [All Peoples Congress] youth," Mohamed Taimeh and the case has been "committed to the High Court of Sierra Leone for trial" ... The same source further states that

   [t]he men are alleged to have tortured Taimeh to death under the guise of forcefully taking him to the sacred Poro society bush for initiation. The alleged abuse of the respectable Poro society by the men facing trial, is said to have seriously upset the traditional Poro chiefs in Kenema who speedily intercepted the accused and handed them over to the State authorities. Awareness Times Newspaper can also confirm that the Poro chiefs have testified in court during the hearing, that they do not want their society to be stained so they were totally distancing legitimate and respected Poro activities from the cruel murder of Taimeh …

   [Tribunal’s emphasis]

8. The material quoted above provides scrupulous references to sources. I have removed these for flow, but they can be found in the original Refworld report.

9. I have had regard to the following information about initiation into the Poro Society located in a report[8] from UNHCR’s CORI (Country of Origin Research and Information) unit:

   Each local Poro group has a sacred place in the bush where initiation rituals take place. Initiation usually happens at puberty and marks not only admission into the society in itself, but also a rite of passage to adulthood. In some cases initiation involves the payment of a fee by the family of the initiate or an external sponsor.

   Boys are taught to become men learning traditional laws, customs, crafts, farming and spiritual knowledge. They undergo competitive tests of physical prowess and endurance. A special emphasis is put on the initiate’s ability to keep secrets. The young men are symbolically “killed” and eaten by the spirits, and then reborn as adults, prepared for life in society. The rituals involve the scarification of the body of the initiates. The ordeal of initiation is severe, occasionally an initiate may die. Village chiefs and male elders usually organize the initiations, because initiation guarantees community membership families may feel beholden to the organizers. According to [anthropologist] Dr Fanthorpe “elders may use that moral indebtendness [sic] to secure compliance with their decision making or claim resources from lower status families.” …

   The Poro Society has used symbols of witchcraft to intimidate community members and has vandalized property and attacked families who refuse to participate in Poro society. The Poro often abduct people that they intend to forcibly initiate.

   Some members of other religions, largely Christians and Muslims, are publicly opposed to the secret societies and openly criticize them. There are several reports of Imans [sic] being abducted and forcibly initiated in Freetown and other major cities in the country, [and] according to Dr Fanthorpe these “are overtly political acts designed to intimidate and punish rather than convert” …

   [Tribunal’s emphasis]

   [8]

10. I note that the Bondo Society is reported to be an all-female society notoriously involved in performing and promoting a tradition of female genital mutilation.[9]

    [9] “Giving Girls Back Their Futures In Sierra Leone,” Plan International,

    Findings in relation to s.36(2)(a) of the Act

11. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[10] 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.[11]

    [10] MIMA v Rajalingam (1999) 93 FCR 220 .

    [11] 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.

12. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[12] 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 the 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 the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an 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 advance adequately.[13]

    [12] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [13] Sun v MIBP [2016] FCAFC 52 at [69].

1. I accept that [the applicant] is a former athlete and, more recently, former [coach] from Freetown, Sierra Leone. I accept that he is a Christian. I accept that he prefers the APC to the SLPP.

2. None of the evidence before me satisfies me that [the applicant] faces a real chance of being persecuted in Sierra Leone for the separate or cumulative reason of being a Christian.

3. [The applicant]’s main claims are about how he will be treated in Sierra Leone for reasons of his claimed affiliation with the APC. This is a claim relating to a relevant criterion: “political opinion”. However, I find that [the applicant]’s claims about a potentially significant relationship with the APC are problematic in so many ways that I do not believe he has ever had any such relationship with that party. To start with, he has provided inconsistent evidence as to his status in the party and when, or whether, he was formally “appointed” to that status. Key to this finding is what I consider to be [the applicant]’s understanding of the word “appointed”. In his unsigned and undated declaration to the Department, apparently made through an interpreter, he said he was “appointed” as national [coach] [in] 2010, his job involving travel around the country to spot and recruit athletes, and there is no doubt that that this was a formal appointment. In the same statement, he claimed that, around the same time, he was “appointed” campaign chairman by the APC. It can reasonably be taken that he was attributing the same meaning to the word “appointed” in both instances. He also attributed the same degree of formality to the “role” of coach as he did to the “role” of campaign chairman. In his handwritten statement he said he was “elected” to the position of “campaign chairman” so the implication of formality obtains in a variety of instances. Contradicting this, however, [the applicant] he later claimed that his “appointment” and “role” with the APC was informal and secret, and he furnishing the Tribunal with a letter about his role in sport preventing him from being able to hold any formal role in the APC.

4. [The applicant] also provided inconsistent evidence as to when he commenced his “role” as campaign chairman, and as to how active he was politically during the 2018 election campaign. In earlier evidence, his APC “role” began in or around 2010 with him being an active APC campaigner during election campaigns (which would have been in 2012 and 2018) and just [a] coach the rest of the time. However, he evidently told the delegate that he only became a member of the APC in November 2017 when he began to campaign for them:

   He was asked if he was politically active in 2018 and he responded that he was not active as he was focused on his coaching. He claimed he became a member of the APC when he began to campaign for them and when asked the date of his membership he responded in 2017 “around November”. He claimed he was asked to campaign for the APC during the election but he did not hold a position within the party. He claimed he attended colleges and schools to tell young people to vote for the APC so that they will receive government assistance.

5. In his handwritten statement, meanwhile, [the applicant] claimed he was “elected” to the position of “campaign chairman” in December 2017. In all, there are three different versions as to the date of [the applicant]’s engagement, formal or otherwise, by the APC. The general discrepancy is one of around seven years. The APC letter provides no assistance in clarifying this, as it only refers vaguely to [the applicant] having been, and still being, a member of the APC. I give some negative weight in this matter to the discrepancy regarding when [the applicant] commenced performing his claimed “role” with the APC.

6. I give negative weight in this matter to another discrepancy: whereas [the applicant] told me that he had plenty of time to be active on behalf of the APC during the 2018 election campaign, and vaguely indicated that this was how he used his afternoons, he told the delegate that he was not politically active in the 2018 due to the demands of his coaching job. Given what one can reasonably imagine to be the demands of getting a national team to the Commonwealth Games in March 2018, I consider the claims about not being politically involved in the lead-up to the March 2018 elections to be the more plausible claim by far. It follows that I do not accept that his clams to be about having been politically active during the lead-up to the 2018 elections are at all factual.

7. [The applicant]’s claim about having “travelled around the country during election periods to encourage communities to vote [for] the APC” is also undermined by the evidence of his having been too busy coaching in 2018 to do anything for the APC. It is my view, on the evidence before me, that [the applicant] has simply embellished on an activity he already occasionally undertook as a sports coach, outside of the more intense periods prior to travelling abroad with national [teams], and rebranded it as a political activity.

8. Overall, on the poor quality of the evidence before me, I do not accept [the applicant]’s claims about having formally become even a member of the APC, even though I accept that he preferred that party over others. I duly note that his claim about having become a member of the APC at some stage or other is given vague support in the first and second paragraphs of the APC “Interim Secretary General”’s letter but, on review, having regard in particular to the many discrepancies in [the applicant]’s own claims about his relationship with the APC, I give the letter fairly negligible weight overall. I am all the more confident in this finding became the letter says that [the applicant] “was actively involved in every party activity since 2014 to 2018” whereas [the applicant] has claimed in one instance not to have joined the party until 2017 and that he was too busy as a coach to be actively involved in the 2018 election campaign.

9. [The applicant]’s evidence as to why he, amongst APC supporters in particular, would be a target for harm in the reasonably foreseeable future, is inconsistent with what he claimed about other APC supporters. He said that his brother and other family members, who he elsewhere described as APC supporters of long standing, are not facing any potentially relevant problems. He said it was possible that [Mr A] might still be actively involved with the APC. He said that the “Interim Secretary General” of the APC faces no serious harm because he can afford security, but a person in such a position would not always have had such protection.

10. For clarity, I am not satisfied on the evidence before me that [the applicant] ever joined the APC or ever had a role, in a campaigning capacity or any other, with the APC.

11. Since [the applicant]’s claims about threats and attacks upon him and his family are entirely dependent on claims I have already dismissed as unreliable, it is hard to accept that he attracted threats from political opponent and/or their proxies; or that he was attacked; or that his family was attacked; or that his wife and daughter were beaten and raped; or that his wife and children fled their home; or that they had to be relocated; or that he ever lost contact with her or other family members. His own evidence about having lost contact with his family, and about the circumstances of other family members, is shown in this record to have been inconsistent. Also, having regard to [the applicant]’s claimed concern for his family, I consider it fanciful that he would have “secretly” left him home in March 2018, his home being the place where he already knew his enemies assumed they might find him, merely telling his wife and children to stay inside, apparently assuming that this was all he needed to do for them to remain safe. I further regard the claim about “secretly” moving into a national sports compound days before departing Sierra Leone with the national Commonwealth Games team to be disingenuous, as it is logical that this is what a national coach would do with his athletes in those few days before the Games. I consider it fanciful, I the claimed circumstances, that [the applicant] considered his location a secret at that time and that he believed that his family would be safe if they stayed in a house where that had recently been attacked. I give no weight to the claim about [the applicant] finding out during the Commonwealth Games that his wife and daughter were beaten and raped. On the evidence before me, in particular the evidence about [the applicant] sending money back to his wife and children who are still living in Freetown, I do not accept that they are missing or that they have been “relocated in an undisclosed locality” in any way such as has been described in the APC letter.

12. I find it very hard to accept that [the applicant] attended a rally on 27 February during which the rally was attacked by a stone-throwing mob, notwithstanding that I accept he votes for the APC and even though he showed me a small scar near his [eye]. In support of the claim, [the applicant] has provided a non-contemporaneous document described as a medical report, but as to detail it almost exclusively provides a socio- political background to pretty much only reports rather than any helpful clinical or medical detail. I find in the circumstances that I am unable to give this document weight. I find on the evidence before me that, whereas I can accept that [the applicant] sustained some kind of injury near his [eye] at some stage in the past, I am not satisfied that he suffered it in the circumstances claimed. 

13. None of the evidence before me satisfies me that [the applicant] faces a real chance of being forcibly initiated into the Poro Society, and none of the evidence before me satisfies me that [the applicant] faces a real chance of being handed over to the Poro Society to be killed. The latter claim depends on there being some established open or covert relationship between the SPP and the Poro Society; however, no evidence has been presented in this matter to argue either possibility. When I put to [the applicant] that there appeared to be no such murderous link between the SLPP and the Poro Society he adhered to his claims without providing any cogent basis for doing so. The impression I have here is of [the applicant]’s having fabricated or at least exaggerated a particular danger he claims to face in Sierra Leone. Overall, I find that [the applicant]’s references to the Poro Society in this matter are fanciful attempts to enhance his case for protection, and I have given some cumulative weight to this problematic aspect of his evidence. I am of the same view with regard to his mention of the Bondo Society.

14. As the delegate observed, [the applicant] made no claims early in his application about fearing persecution for reasons relating to his having absconded from the national [delegation] during the Gold Coast Games. I note that the delegate dealt with the issue as an implied “political opinion” and “particular social group” claim nonetheless, and this is why I asked [the applicant] some questions about it at the Tribunal hearing. I provided an opportunity for [the applicant] to argue that he would be persecuted, say, for reasons of being a “defector” himself or, say, being associated with other people who absconded from the delegation in the same place around the same time. As noted, his reply was that the government and/or sporting authorities will not trust or re-employ him. He said vaguely that the corollary of this was that his life would be in danger. I find that [the applicant]’s claims about not being re-employed as a national sports coach seem quite plausible, but I am not satisfied that this gives rise, on its own or even cumulatively, to his life being in danger in Sierra Leone.

15. I have also considered the adviser’s suggestion that [the applicant]’s fame in Sierra Leone could be a contributing factor to harm he claims to face. Whereas I can accept that [the applicant] may, or may have been, quite well known in sporting and other circles in Sierra Leone, I am not satisfied on the evidence before me that this factor in his case, either on its own or cumulatively, gives rise to a real chance of being persecuted.

16. I have duly considered the adviser’s submission about a real chance being described in relevant jurisprudence as one potentially as small as a ten percent. chance. Notwithstanding this, I consider the chance of potentially relevant harm in this case to be remote and therefore not real.

17. Overall, I find that [the applicant]’s substantive claims in this matter are devoid of merit.

18. Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Sierra Leone, either separately or cumulatively, in the reasonably foreseeable future. His claimed fear of being persecuted is not well founded. He is not a refugee.

19. 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). 

    Findings in relation to s.36(2)(aa) of the Act

20. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

21. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

22. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

23. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.

24. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

25. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

26. Accepting that [the applicant] is a national of Sierra Leone, I find that Sierra Leone is the receiving country in this matter.

27. [the applicant]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.

28. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sierra Leone, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.

29. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Conclusions

30. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

    DECISION

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

Luke Hardy

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…