1822803 (Refugee)

1822803 (Refugee) [2023] AATA 975 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Sister Mary Philippa Symonds (MARN: 1464933)
CASE NUMBER:  1822803
COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Kate Millar
DATE:27 January 2023
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 January 2023 at 12:07pm
CATCHWORDS
REFUGEE – Protection visa – Sierra Leone – political profile – fears harm from the Poro Society – Tribunal does not accept that the applicant was a journalist in Sierra Leone – applicant had provided conflicting, inconsistent and contradictory information – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Sierra Leone, who came to Australia on [date] March 2018 on a [temporary visa] for [Event 1].
On 9 May 2018, he lodged an application for a protection visa, claiming to fear harm if returned to Sierra Leone because he had escaped from the initiation rite of the Poro Society in Sierra Leone and would be killed by members of the Poro Society, and because of the threat posed to journalists in Sierra Leone.
A delegate of the Minster refused his application on 12 July 2018 under s 65 of the Migration Act 1958 (Cth) (the Act) because the delegate did not accept the applicant was at risk from the Poro Society. The delegate states the applicant abandoned his claims to fear harm as a journalist.
The applicant appeared before the Tribunal on 17 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
CLAIMS
In a statement signed 9 May 2018, the applicant claimed (in summary):
·     The Poro Society is a secret society practiced by people from the Temne tribe, and it is considered a rite of passage for young Temne men to be initiated into the society.
·     Nine months prior to his application it was time for him to be initiated. He was taken away by some men.
·     He found himself tied up with other young who were also tied up. An old man addressed them and said there was no going back for any of them, and they will take a secret oath and be bound by it forever.
·     He woke up shivering and one of the men guarding them came to ask what was wrong, and that he was not going to let anyone die on his watch. The applicant said he was not going to die there like his late stepsister. The man called out his sister and his deceased parents’ name. This man later pulled him aside and said he was in charge of the late-night session and was going to look away while the applicant escaped.
·     He managed to escape at night and after a couple of days on the road made it to Freetown.
·     News came that his house had been vandalised and burned down and anyone related to him went into hiding. It was declared that wherever he was found he could be harmed or killed to protect the secrets of the Poro Society.
·     There is no place to hide from the Poro Society as it is an integral part of tradition and politics in Sierra Leone. The government turns a blind eye to deaths in initiation and other atrocities.
·     There has been a call for him to be captured and brought back to undergo he initiation.
·     The family friend who sheltered him obtained employment for him as a trainee journalist as he was a student journalist at high school.
·     In this time there were increasing threats to harm to kill him because he had witnessed sacred things and might expose the tradition because he did not complete the initiation.
·     When the opportunity came for a journalist to attend the [Event 1], it was agreed he would take the opportunity to flee.
·     He is certain that if he returns, he will be harmed, severely disabled or killed and the custodians of the cult will stop at nothing to harm him.
·     He lost his stepsister to a similar cult just over 2 years earlier.
·     He does not know how his parents passed way but it could be related to the cult.
·     He struggled over years to complete his secondary education he was looking for financial opportunity to further his studies at university, which is how he came to be in his fatherland bush villages where the Poro Society practices.
·     Journalists in Sierra Leone receive death threats and the press continue to complain of harassment and extortion which is worse after a new government is elected.
·     Before he came to Australia he was restricted in public places. Those who are illiterate think that local journalists are corrupt, and this is the reason journalists decide to seek protection in foreign countries. He has been chased out of a cinema hall by angry fans of a political party saying he is part of the journalist team that writes negative things about them
In his statement of 22 June 2022, the applicant claims:
·     His parents and sister had died so he was on his own and struggling to pay for his education. He was persuaded by a man he met to go to his father’s village, and he got a job on a farm and was working but did not earn much money.
·     He knew little about the Poro Society but had heard about it when he lived in the city. He knew he could not get a government job without being a member but didn’t think he need to become a member. He claims his sister died being initiated into a secret society, and he wanted nothing to do with it.
·     While working on the farm he was picked up one night by some older men and taken to a secret place in the bush and told he was to be initiated and he would be punished if he ever told anyone what occurred during initiation. He was told he would be cut to form scars so others would know he was a member. He was scared and another man helped him escape. He then decided to flee the country. Neighbouring countries have their own secret societies, and he did not want to face the same situation. He had not learned the languages in neighbouring countries.
·     He fears he will lose his life if he returns to Sierra Leone. The cult will not let him live because of his anti-cult feelings and what he witnessed
·     A journalist offered him a place in the media group going to the [Event 1] and he accepted it as it is a long way from Sierra Leone. He had learned to read and write English at school and thought he would quickly learn to speak the language
DOCUMENTS PROVIDED
The applicant provided with his application:
·     A statement dated 9 May 2018.
·     A Sierra Leone identity card and Voter ID Card
·     A birth certificate dated [in] October 2014
·     A copy of his passport.
The applicant provided to the Tribunal:
·     The decision of the delegate
·     A submission from his representative
·     A death certificate for [name]
·     A death certificate for [Ms A]
·     A death certificate for [name]
·     A birth certificate for [Mr B]
·     A birth certificate for [Ms C]
·     A money transfer receipt for [Mr B] dated 5 October 2017
·     A map of Sierra Leone with a handwritten annotation of the approximate location of [Village 1]
·     Article “Fear of forced initiation into the Poro Society in Freetown” dated 9 March 2009.
·     Article “Information on forced initiation by all-male secret societies operating in Northern Sierra Leone, particularly in the region of Kenbaya” with the heading ”Sierra Leone - Researched and compiled by the Refugee Documentation Centre of Ireland on 12 July 2011”
·     Article Pemunta, N. and Tabenyang, T. 2017 “Cultural power, ritual symbolism and human rights violations in Sierra Leon” Cogent Social Sciences Vol 3: 1295549
·     Statement dated 22 June 2022
·     Article “Sierra Leone’s secret societies mark bodies and minds” 4 August 2019, AFP
·     Article “Teenagers Flee Forceful Initiation into Secret Society” 2021 Sierra Express Media.
·     Immigration and Refugee Board of Canada 18 September 2017 “Sierra Leone: Information on the Poro Society, including rituals and initiation: ability to refuse initiation or leadership roles; availability of state protection (2015 – July 2017)”.
On being asked if there were any further documents should be before the Tribunal, the applicant stated he had a video. In his statement of 22 June 2022, he says that a friend has sent him a video of a young woman being killed. He said his friend sent a video on social media which he had mistakenly deleted so he could not provide the video.
BACKGROUND
The applicant was born in Freetown on [date]. As a child he lived in Freetown at [Address 1]. He said this was his main address his whole life. It is the address listed on his Voter ID card issued in 2012.
He lived with his parents and stepsister [Ms A] . He grew up with his stepsister, however his stepsister also went to visit her mother at times. His father was Christian, and his mother was Muslim.
His father was [an Occupation 1] at [a workplace] in Freetown. The applicant said his father died when he was very young, approximately [age] or [age] years old, and when he was still in primary school.
After his father died, his mother continued to live at [Address 1], but she travelled at times to visit family and friends in [Town 1]. His mother was a hawker [and] would travel to other places for business.
His mother became sick and there was no proper medication. His mother went to hospital but died at home at [Address 1]. Her stepbrother [came] when she died. His mother was [buried]. At the time she died he was a small boy and could not remember exactly how old he was at the time. He thought he was in junior secondary school, and [he] was approximately [age] years old.
His stepsister [Ms A] lived with her mother and came to visit them at times. He could not remember the name of the village where she lived with her mother. He heard from a friend that she died because of the secret [society].
The only extended family he knows of in Sierra Leone is his mother’s [stepbrother]. He does not have any other family in Sierra Leone.
The applicant went to [a] School for primary and junior high school then went attended [School 1] [for] senior secondary school. He completed his senior secondary school in 2011 when he was [age] years old. His mother paid for him to attend [School 1] in the period before she died. After his mother died, he attended with the help of other people in the community.
After his mother died, he moved into a friend’s house because there was no-one looking after him, and then lived with various friends. He worked helping people who would give him food or would earn money by selling in the street.
He managed to finish senior school, but it was hard to go to university because of the fees. At this time, he met a person who said he should move to the village to make some money to go to university. He went to [Village 1].
CREDIBILITY
The credibility of the applicant was in issue before the delegate and was also in issue before the Tribunal. For the reasons given below, the Tribunal finds the applicant is not a credible witness.
[Mr D]
The decision of the delegate records that a person named [Mr D] attended the interview with the Department as the applicant’s support person. The applicant explained to the delegate that [Mr D] was a friend the applicant met in Sierra Leone when he was [age] or [age] years old when they were playing soccer in the street.
The decision of the delegate also records that the applicant was asked by the delegate about his friend sending money to [Ms A] (his stepsister) and [Mr B] (his father) since 2008, and most recently in October 2017. The applicant is recorded as initially responding that he did not know his friend was sending money to his family, and then that he did not understand why they would send money to his family when he was struggling to eat and to pay for university.
In the hearing invitation dated 22 June 2022, the Tribunal requested that [Mr D] attend the hearing and give evidence. This was followed up in an email dated 16 August 2022 requesting the contact details for [Mr D]. [Mr D] did not attend, and the applicant was invited to explain his absence. He said his representative had told him she (the representative) would not attend. He said he did not ask [Mr D] to attend the hearing, and. thought he may have misunderstood the message.
The applicant told the Tribunal he met [Mr D] over [social media] and asked him for money to help him go to university. [Mr D] sent him money for a mobile phone and $200 for his arrival in Australia for food. He invited the applicant to come and live with him in Adelaide after he arrived in Australia.
The applicant provided a copy of a receipt for a money transfer from [Mr D] to [Mr B], which is the same name as the applicant’s father. The address for [Mr B] is [Address 1], which is the same address as the applicant’s family home. The transfer is dated 5 October 2017.
The applicant did not have an explanation other than they were different people of the same name. The Tribunal does not accept that if his father and this person were different people, they would have the same address as the applicant’s childhood home.
The applicant has given inconsistent information about how he knows [Mr D], and the Tribunal finds that the applicant is not telling the truth about how he knows [Mr D]. It does not accept his account that [Mr D] was sending money to a person of the same name and address as his father but that was not his father and finds he has been untruthful in his account.
Death of family members
The applicant says as his parents died, he was not financially supported and went to the village to earn money to pay for university. He says his stepsister died during initiation.
The death certificates are all handwritten with a handwritten serial number. The applicant states he obtained the death certificates from his friend [Ms C]. The applicant was advised the Tribunal was concerned about whether the certificates were genuine as as the serial number was handwritten, unlike the birth certificates he had provided which had a printed serial number, and because the form of the certificate was different to the sample death certificate on the United Nations website,[1] which has the serial number of the form on the top right-hand side.
[1] Death certificate - Sierra Leone - Civil Registration and Vital Statistics - UN Statistics Wiki
The applicant said he did not know about this, and did not obtain the death certificates himself, but had asked [Ms C] for the death certificates which she emailed to him. He does not have originals of these documents.
The death certificate of his father is handwritten and has a handwritten serial number It states his father died on [date] February 2001 in [Village 2].
Submissions from his representative quoted the delegate’s decision that his friend ([Mr D]) had been sending money to [Ms A] and [Mr B] since 2008, and most recently in October 2017.
The applicant was advised that this may indicate his father was still living and was invited to provide any further comment. He said they have similar names and are not related.
The Tribunal does not accept that a person of the same name as his father and at the same address as his childhood home is not his father, and finds the applicant is being untruthful abut the death of his father.
The applicant said his mother died when he was approximately [age] years old when he was in [junior] high school. This was inconsistent with his earlier account that his mother paid for part of his school at [School 1] while she ws alive, where he completed his senior secondary school. It is also inconsistent with the death certificate provided for his mother, which provides a date of death of [date] January 2013, when the applicant was [age] years old. According to his earlier evidence, he completed senior secondary school in 2011 when he was [age] years old, and at the time the death certificate specifies as her date of death, he had finished senior secondary school.
His account of the death of his mother was that she died at home at [Address 1] in Freetown. Her death certificate states she died in [Village 2], [named] District.
The Tribunal finds the applicant is being untruthful about the death of his mother.
The death certificate of his stepsister [Ms A] is also handwritten and states she died [date] May 2015 at [Village 2], [named] District. The serial number on this death certificate is handwritten. The applicant states this is a different person to the person who assisted him on his return to Freetown, who is [Ms C].
The applicant provided a birth certificate which he says shows [Ms C] is a different person to his sister because she has an additional name, and the names of her parents are [name and name]. In his statement dated 22 June 2022, he states his mother’s name is [Name 1], the same first and last name as the mother of [Ms C]. He was asked to confirm the name of his mother at hearing, and he said it is [Name 1]. While his mother’s last name appears differently on his application form [and] the purported death [certificate], the Tribunal is not satisfied this birth certificate shows that [Ms C] is a different person to his stepsister, albeit that it appears they have the same mother rather than the same father.
In his 2018 statement, the applicant says that a distant relative took him under his wing after he escaped the Poro Society and describes this person as a family friend and that this family friend organised his travel. In this statement he does not name this family friend. In his 2022 statement, he says that a journalist offered him a place in the media group going to the [Event 1].
In his account to the Tribunal, he said he met [Ms C] when he returned to Freetown after fleeing the Poro Society, and he had approached her as she had the same name as his sister. After he told her what he had been thorough she took him into her house and gave him the opportunity with the [Event 1] teams because he wanted to [work in] journalism and she was a media person. He said [Ms C] paid for his passport, his visa, and the flight to Australia. On being asked why she did that, he said she as married and talked to her husband about it, and her husband took hm to the airport. He did not have to repay the money for the ticket.
The Tribunal said it found it difficult to accept a stranger would give him shelter and pay for a passport, visa and tickets and arrange a place in the [Event 1] team as he described. He then said he did know her as he had worked as a houseboy for her such as cleaning and fetching water after his mother died.
The Tribunal does not accept his account that [Ms C] is a different person to his stepsister and does not accept the birth certificate shows she is a different person. It does not accept that another person of the same name as his stepsister took him in and, arranged for a place in the [Event 1] media team and paid for his passport, visa, and flights to Australia. The Tribunal finds this was his stepsister and that he has not been telling the truth about the death of his sister. The Tribunal does not accept that his sister died at the hands of a cult as he claims.
The Tribunal does not accept that the applicant’s father, mother, and sister are deceased. It does not accept that he stayed with friends to finish his high school or that other paid for his education after his mother purportedly died.
Journalism claims
The applicant claimed to fear harm because he was a journalist and was chased out of cinema hall and would be treated badly because people who are illiterate think local journalists are corrupt.

At hearing he said that he was a [journalist] in Freetown. On being asked his specific experience he said he was “like an apprentice” to a [Mr E] who was a [journalist]. He met [Mr E] through [sports] when he was in senior secondary school, and he would [do specified work for Mr E]. He did not know which paper [Mr E] wrote for. He did not himself publish anything himself.
The applicant stated the inconsistency with his 2018 statement was because someone else wrote his statements. The Tribunal does not accept that another person would fabricate claims other than writing what the applicant has said.
The Tribunal does not accept the applicant has worked as journalist in Sierra Leone and rejects his claim that he was chased out of a cinema hall or was treated unfavourably by others because he is a journalist and finds this was a fabrication.
As the applicant has been untruthful on a number of matters, the Tribunal does not accept he is a witness of truth and finds it cannot rely on his evidence.
CONSIDERATION OF CLAIMS
Poro Society
The UNHCR Country of Origin Research and Information analysis[2] states the Poro Society is a long-established cultural institution in Sierra Leone, Liberia and he Ivory Coast. Membership is solely for men and is drawn from the Mende and Temne.
[2] Country of Origin Research and Information (CORI), Sierra Leone: Fear of forced initiation into the Poro Secret Society in Freetown, 6 March 2009, HCR00004E, available at:
This article states:
The Poro society does not have a formal central organization and operates through independent local groups, “the Poro should be considered a diversity of associations that differentially share some ritual practices. These associations differ from other societies in that they have the capacity to establish communicative and political allegiances with each other that transcend ethnic and linguistic boundaries.” (footnotes omitted)
The Immigration and Refugee Board of Canada states that:
According to sources, new members are marked with scars (Jehovah's Witnesses 2014; Allen et al. 2012, 68). 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. (Allen et al. 2012, 68)
According to the same source, the initiation "takes place in a series of rituals lasting from November to May" (Allen et al. 2012, 68). 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" (SMART Consortium 2017, 20). The report adds:
…
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.
There are reports of forcible initiation by the Poro Society, with the United States Department of State Report on International Freedom reporting that members of the Poro Society kidnapped at least 5 Ahmadiyya Muslim men in Kenema in January 2019. Poro Society members are reported to have severely beat one of the men and initiated the others by force. The Ahmadi leader is reported to have reported the incident to government but said police and government official were reluctant to investigate the Poro Society due to its perceived influence in society.[3] Poro members are reported to have seized livestock and burned houses. BTI also reported this event.[4] The 2021 US Report on International Religious Freedom[5] makes no mention of the Poro Society.
[3] Sierra Leone - United States Department of State
[4] 'BTI 2022 Country Report - Sierra Leone', Bertelsmann Stiftung, 22 February 2022, 20220301124010
[5] Sierra Leone - United States Department of State
The Sierra Express Media reported in March 2021 that a sixteen-year-old boy has fled with his elder brother trying to avoid forceful conscription into the Poro Society.[6] Another article by the Sierra Media Express states BBC journalist Umaru Fofanah reported the kidnapping of eight workers and their driver and their forcible initiation.[7]
[6] 'Teenagers Flee Forceful Initiation Into Secret Society', Sierra Express Media, 25 March 2021, 20211110141525
[7] 'Government bans secret society initiation ceremonies as two men are killed', Sierra Leone Telegraph, The, 23 January 2019, 20200508171956
The Tribunal accepts that forcible initiation into the Poro Society has occurred and that reports of the initiation conducted included cutting to form scars.
In his 2022 statement the applicant states he was on his own as his parents had died and he was struggling to pay for his education. He states:
I had never been to my father’s village, but I met a man from the village who knew my father and he persuaded me to go there saying I could earn good money.
At the hearing, he said that a man had told him he could get work at [Village 1]. He said he did not have any connection with [Village 1] and his family had no connection with [Village 1] On being asked if his father had any connection with [Village 1] he said “no”. He also said his mother did not have any connection with [Village 1].
The applicant was asked to explain why he said his father had no connection with the village as this was different to his statement. The applicant said the man who took him there was a friend of his father. His father did not take him to the village and his mother did not take him to the village and that is why he said he had not connection. The applicant said his father used to go to the village, but his father never explained that this was his hometown. his father never took him to the village, but his father’s friend said his dad used to go the [Village 1] to get him to go there. The Tribunal found this explanation unconvincing and finds that the applicant has been untruthful about his connections with [Village 1].
The applicant said that after he had been in the village for 1 – 2 weeks with no pay, one night in the village a person came to his doorstep and said he would go through the Society by force. This person drove him to a place where they forced him to take medicinal herbs, but he kept refusing. There was traditional music and people were speaking in their own language. He kept refusing and they almost beat him to death. He was tied up and beaten, telling him he needed to join and giving him leaves to eat and telling him to follow procedures. They did not give him food as he kept refusing to join or to take instruction.
He was there for approximately three days when the man looking after him went to the toilet, and he escaped. He said by that time he was untied, and he was only tied up at the start. He had obeyed and accepted so they would not kill hm. He ws supposed to be there for 2 weeks. No-one chased him but they were looking for him. He left quietly.
He said he was cut on his arm and on his feet from running back to Freetown. As a result, he has pain when he came to Australia, and he has been given medication in Australia.
The Tribunal asked if the injuries he suffered with scars to his arms and feet are consistent with having been initiated and having completed the initiation. The applicant said he ran away, and he started the initiation but did not complete it.
The Tribunal has carefully considered his account but does not accept that the applicant was abducted or that was tied, or that he escaped and run into the bush, or that he faces any threat from members of the Poro Society of he returns to Sierra Leone. The applicant’s lack of credibility results in the Tribunal not being satisfied that any of his claims to fear harm are true.
The Tribunal does not accept that he was abducted and forced to undergo initiation. It does not accept he escaped before he was initiated or that his home was vandalised or burned down. It does not accept people related to him went into hiding or that it was declared that wherever he was found he will be harmed or killed to protect the secrets of the Poro Society.
It does not accept that the applicant would face harm from or because of the Poro Society if he returns to Sierra Leone.
Journalism claim
The Tribunal does not accept that the applicant was a journalist in Sierra Leone. It does not accept he would be treated unfavourably or suffer serious harm or significant harm due to any assistance he provided to a [journalist].
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONCLUSION
The Tribunal is not satisfied the applicant will be harmed now or in the reasonably foreseeable future if he returns to Sierra Leone. As the Tribunal is not satisfied he will be harmed, there is no real chance of serious harm or real risk of significant harm if he returns.
As a result, the applicant does not meet the definition of a refugee in s 5H of the Act as he does not have a well-founded fear of persecution as defined in s 5J of the Act. He therefore does not meet the requirements of s 32(2)(a).
As the Tribunal is not satisfied the applicant faces a real risk of significant harm as a reasonably foreseeable consequence of being returned to Sierra Leone, he does not meet the requirements of s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior Member

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

[2023] AATA 975

27 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction