1823872 (Refugee)

[2023] AATA 2336

1823872 (Refugee) [2023] AATA 2336 (22 May 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Alison Battisson (MARN: 1790352)

CASE NUMBER:  1823872

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Peter Papadopoulos

DATE OF DECISION:  22 May 2023

DATE CORRIGENDUM

SIGNED:24 May 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

That the front page of the Decision Record be amended to reflect that the applicant was represented by both Ms Alison Battisson (MARN 17090352) and Mr Eric Zhang (LPN 5512728)

Peter Papadopoulos
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Alison Battisson (MARN 1790352)

CASE NUMBER:  1823872

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Peter Papadopoulos

DATE:22 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 May 2023 at 2:52pm

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – particular social group – persons suffering from mental illness in Sierra Leone – adjustment disorder with mixed anxiety and depressed mood – Hepatitis B (HBV) – endemic discriminatory assumptions about mentally ill persons – societal discrimination – right to enter and reside in a third country – Economic Community of West African States (ECOWAS) – decision under review remitted

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

CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old male who claims to be a national of Sierra Leone.

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

3. On 2 May 2018, the applicant made an application for a Subclass 866 Protection (Class XA) visa (protection visa).

4. On 7 August 2018, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.

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

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

7. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

   CLAIMS AND EVIDENCE

   Claims and evidence provided to the Department

   Protection visa application

8. According to information contained in his protection visa application, the applicant:

   ·     is a [age]-year-old Sierra Leonean national who was born in [Town 1], Port Loko in Sierra Leone.

   ·     is a member of the Fula tribe and a Muslim.  

   ·     resided at the following addresses in Sierra Leone:

   o   [Address 1], [Town 1] (between November 1989 and November 2002);

   o   [Address 2], Freetown (between November 2002 and October 2016);

   o   Moyamba (between October 2016 and January 2017);

   o   [Address 3], Freetown (between January 2017 and 27 March 2018).

   ·     has the following family members in Sierra Leone:

   o   his de facto partner, [Ms A] (born [date]), who was four months’ pregnant at the time he departed Sierra Leone;

   o   his daughter, [Child B] (born [date]);

   o   his father, [Mr C] (born [date]);

   o   his mother, [Ms D] (born [date]);

   o   his sister, [Ms E] (born [date]);

   o   his two brothers, [Mr F] (born [date]) and [Mr G] (born [date]);

   o   his step-sister, [Ms H] (born [date]);

   o   his step-brother, [Mr I] (born [date]);

   o   his nephew, [Mr J] (born [date]);

   o   his niece, [Ms K] (born [date]);

   ·     attained a [Qualification 1] from [Education Provider 1], having undertaken studies between October 2009 and April 2013.

   ·     was employed by [Employer 1] as a reporter/writer from January 2014.

9. In relation to his claims for protection, the applicant provided the following information in a statement accompanying his application form:

   ·     He left Sierra Leone because he feared being killed by ‘drugged traditional youths’, ‘fanatic religious groups’ and a vigilante political group within the Sierra Leone People’s Party (SLPP) known as the ‘Pao Pa Boys’. He was targeted by these groups because he stood up to defend the rights of the LGBT community and other minorities.  His position was regarded by some as ‘an act against societal values’ and before leaving Sierra Leone he was threatened with death if he continued to propagate what they called the ‘evil message of the western world’.

   ·     On 14 February 2012, a group of students at [Education Provider 1] organised a LGBT party. The applicant was invited by a friend. Not all of the attendees were members of the LGBT community, and fighting broke out when people realised that some in attendance were ‘engaging in LGBT activities’. Some people were stabbed. The organisers of the party were punished by College Administration with suspensions of various periods ranging from between three and six months. This incident inspired him to start advocating for the rights of the LGBT persons and other minority groups.

   ·     In May 2013, he began working as a freelance journalist. He wrote stories about the vulnerable, disadvantaged, poor, and defenceless. He did not receive any writing credits or by-lines for his work. However, because of those unattributed articles, he was employed by [Employer 1] in January 2014 as a reporter.

   ·     In addition to his work as a journalist, he expressed his views in other fora such as radio talk shows, seminars, workshops and conferences.  He lived in the predominantly Muslim community area of [Neighbourhood 1] in Freetown and his local community were conservative and opposed his views. [In] May 2016, he organised a seminar. The seminar’s theme was ‘Rights of LGBT and Good Governance’. A group of youths and religious leaders stormed the seminar venue. They had sticks, stones, and other sharp weapons. They caught him, dragged him outside and tied him under a mango tree before torturing him. He lost two teeth as a result. The attackers then went to his house and seriously damaged it by pelting it with stones. Consequently, he was evicted from the premises. He reported the matter to [the] Police Station, but no action was taken.  The local community turned against him.

   ·     Following this incident, he moved to Moyamba on 1 October 2016 where continued to work as a journalist. After some time, he began to receive threatening phone calls. He was perceived as a threat by the Pao Pa Boys, a group made up of former Kamajors militia and members of the disbanded Sierra Leone Army. The Pao Pa Boys began ‘[f]orcefully recruiting (LGBT) members and innocent people to be part of their cult’.  He urged the Pao Pa Boys to ‘unconditionally release all those kidnapped’.  On 20 November 2016, the Pao Pa Boys attacked, bashed, kidnapped, tortured and left him unconscious and bleeding. Before leaving him, the Pao Pa Boys threatened to kill him should they win the upcoming March 2018 elections.

   ·     On 5 January 2017, he returned to Freetown. He continued working as a journalist with [Employer 1] and his other advocacy work.

   ·     On 15 December 2017, he was threatened by youths and religious gangs in his local area.

   ·     [In] December 2017, plain-clothes police officers of the then All People’s Congress (APC) party-led government broke into his home. He was handcuffed in front of his pregnant partner and child, arrested and taken to [a specified] prison. He was ‘locked up in solitary confinement’ there for two weeks without charge. He experienced horrific things whilst he was detained in prison.

   ·     He fears that he will be jailed or killed if he returns to Sierra Leone.

   Supporting documents

10. The following documents were provided to the Department in support of the applicant’s protection visa application:

    ·     Department Form 866 Part B – Persons included in this application and family composition;

    ·     Department Form 866 Part C – Personal details for each person included in this application;

    ·     A copy of the biodata page of the applicant’s Sierra Leonean passport (reference [number]) issued [in] 2017 and which expired [in] 2022 (passport);

    ·     A copy of the applicant’s Sierra Leonean Motor Driver’s Licence (reference [number]) issued [in] 2018 and set to expire [in] 2023 (Sierra Leone driver’s licence);

    ·     A copy of the applicant’s [Employer 1] ID card listing his role as ‘REPORTER’ (Press ID card);

    ·     A copy of the applicant’s Sierra Leonean National Electoral Commission Voter ID card (reference [number], ID No. [number], District [specified], Ward [number], Constituency [number]) (Voter ID card);

    ·     A copy of the applicant’s Sierra Leonean birth certificate (birth certificate);

    ·     A copy of the applicant’s [Qualification 1] from [Education Provider 1], dated 13 April 2013 (degree certificate);

    ·     An article from [Publication 1] entitled ‘[title]’ dated [in] 2018 (the [Publication 1] article);

    ·     Amnesty International Report 2014/15 Sierra Leone, addressing issues in Sierra Leone with respect to the Ebola outbreak, international justice, the death penalty, arbitrary detention, police and security forces, the justice system, women’s and girls’ rights, freedom of expression, and the rights of lesbian, gay, bisexual, transgender and intersex people;

    ·     A copy of an article by [the applicant] printed in the [Employer 1] entitled ‘[title]’, dated [in] 2018;

    ·     A statement written by the applicant in Australia on 22 May 2018 entitled ‘[title]’.

    Protection visa application interviews

11. The applicant attended an interview with the Department in connection with his protection visa application on 17 May 2018 (the first interview) and 4 June 2018 (the second interview). The interviews were conducted with the assistance of an interpreter in the Krio and English languages.

12. The Tribunal has listened to a copy of the interview recordings and refers to them, where relevant, in the findings and reasons below. However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the applicant during the interviews:

    ·     He has been unable to contact his de facto partner or daughter since 20 December 2017 because she does not know how to use the phone and is illiterate. He did not report her missing to the police and does not know where she has gone.  His family were unable to locate her because they live in a remote area and have no access to communication.

    ·     When he moved to Moyamba in October 2016, he did so on his own. When he returned to Freetown in January 2017, he lived with his family.

    ·     He came to Australia to attend [Event 1] as a journalist but never attended. He was sent by [Employer 1] with three other journalists.

    ·     He began writing articles about LGBT issues in 2013 as a freelance journalist. These articles were given to a friend and published under the friend’s name.

    ·     He held a seminar or meeting on 25 May 2016. He had invited ‘the youth’ to attend. During the first interview, the applicant stated that this meeting had been held in an open place, but it was not easy to see as there were many trees. However, during the second interview, the applicant stated this meeting took place at a school in [Neighbourhood 1]. Apart from this discrepancy, the applicant said that when some religious leaders discovered the meeting, they beat him.  He did not go to a hospital but went to a local doctor for treatment.  After this incident, the people who beat him also threw stones at his house. This led to his landlord evicting him from his premises but his landlord allowed him to remain in the house until his employer authorised him to move from Freetown to Moyamba to work.

    ·     Whilst in Moyamba, he was attacked in December by a group called Pao Pa who are known for their brutality. He approached the group by himself because he saw the group attempting to forcefully recruit LGBT individuals into their organisation. They beat him, tortured him and threatened that they would kill him if they won the election.

    ·     The attack on 15 December 2017 was a verbal attack involving threats and not a physical attack.

    ·     He was arrested [in] December 2017 and detained for two weeks. He is not sure what day of the week his arrest took place on or what specific date he was released. He was never questioned by authorities. He was simply released from prison after approximately two weeks.

    ·     He is not a member of the LGBT community but a supporter of their rights.

    Summary of the delegate’s decision

13. The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:

    ·     The delegate accepted the applicant’s identity but held a range of concerns with the credibility and veracity of his claims.

    ·     Firstly, the delegate was concerned by the vagueness of the applicant’s answers with respect to seminars and workshops he organised to advocate for LGBT rights and how that advocacy interplayed with his Muslim faith.

    ·     Secondly, the delegate was concerned by the lack of evidence supporting the applicant’s claim that he had been a journalist in Sierra Leone. Further, with respect to the applicant’s claims to have operated as a freelance journalist in 2012, the delegate was concerned with the plausibility of the applicant’s claim that he wrote articles that were published in a [media outlet] under his friend’s name and that he had not had any articles published in his own name. Moreover, the delegate was concerned by the applicant’s claim that he did not have access to his own published articles and that access was restricted to the editor. The delegate was also concerned with an article the applicant claimed he wrote as the applicant was vague in his description of the article and its details. Overall, the delegate held doubts as to the applicant’s claims to have been a journalist in Sierra Leone who had attracted adverse interest from the public.

    ·     Thirdly, the delegate acknowledged country information which indicated that in April 2018 the Sierra Leone Association of Journalists (SLAJ) had urged police to investigate assaults on journalists, but the delegate was not convinced the applicant was a member of the SLJA based on the vagueness of his testimony.

    ·     Fourthly, the delegate also found the applicant’s testimony concerning the Pao Pa Boys to be vague, contradictory and unconvincing. The delegate was not satisfied the applicant was of interest to the group or that he had experienced difficulties with them in Sierra Leone.

    ·     Fifthly, the delegate found the applicant’s claim to have been arrested by authorities, interrogated and detained for a period of two weeks to be vague and unconvincing. Consequently, the delegate was not satisfied the applicant was of adverse interest to the Sierra Leonean authorities.

    ·     Finally, the delegate found the applicant’s claim to have lost contact with his de facto partner and child to be unconvincing.

    ·     Due to concerns over the credibility and veracity of the applicant’s claims, the delegate gave little weight to the [Publication 1] article which indicated that the applicant was of adverse interest to the SLPP.

    ·     The delegate also considered whether the applicant would experience harm because he had sought refuge in Australia following the conclusion of [Event 1] and, after considering country information, the delegate concluded the applicant would not face harm for that reason.

    ·     Ultimately, the delegate determined the applicant was not owed protection because of serious concerns over the credibility and veracity of his claims.

    Claims and evidence provided to the Tribunal

    The review application

14. On 17 August 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

15. On 26 March 2019, the Tribunal received notification that the applicant had appointed a registered migration agent, namely Ms Alison Battisson (MARN 1790352) (Ms Battisson), to act as his representative and authorised recipient in connection with his review application. 

16. On 24 December 2022, the Tribunal was advised that Ms Battisson was being assisted by her colleague Mr Eric Zhang, a legal practitioner (LPN 5512728) (Mr Zhang), with the applicant’s representation.

    Pre-hearing submissions and evidence

17. Between 10 and 12 February 2023, the Tribunal received the following documents:

    ·     The applicant’s Outline of Submissions prepared by Ms Battisson and Mr Zhang, dated 12 February 2023;

    ·     Statutory declaration made by the applicant on 3 February 2023;

    ·     Affidavit of [Mr L] (the applicant’s friend) sworn on 10 December 2022;

    ·     Affidavit of [Ms A] (the applicant’s de facto partner) sworn on 14 December 2022;

    ·     Affidavit of [Mr M] (the applicant’s former landlord) sworn on 22 December 2022;

    ·     Affidavit of [Mr N] (the applicant’s former colleague) sworn on 18 January 2023;

    ·     Letter by [Mr O], Managing Editor of [Employer 1], undated;

    ·     Letter by [Mr P] (the applicant’s former lawyer in Sierra Leone) sworn on 12 October 2022;

    ·     A psychologist report from [Dr Q] dated 16 January 2023 ([Dr Q]’s report);

    ·     A copy of the decision of the UK Upper Tribunal (Immigration and Asylum Chambers) in FC v The Secretary of State for the Home Department (unreported); Appeal Number: PA/11702/2018) promulgated 7 May 2019 (Judge Rintoul);

    ·     The following country information:

    o   African Men for Sexual Health and Rights Network, Concerned Women’s Initiative of Sierra Leone, Dignity Association of Sierra Leone, Heartland Alliance’s Global Initiative for Sexuality and Human Rights, International Human Rights Law Clinic of the University Washington College of Law and the Initiative for Equal Rights and West African Youth Network, Joint Submissions to the 110th Session of the Human Rights Commission;

    o   Amnesty International, ‘A Force for Good? Restrictions on Peaceful Assembly and Impunity For Excessive Use of Force by the Sierra Leone Police’, 3 July 2018;

    o   Amnesty International, ‘Amnesty International’s Intervention on Human Rights before the ECOWAS Parliament 2022 1^st Ordinary Session 9 June – 2 July 2022’;

    o   Amnesty International, ‘Sierra Leone: Shadow report to the African Commission on Human and Peoples’ Rights 57^th Ordinary Session’, 5 November 2015;

    o   Amnesty International, ‘Sierra Leone: Steps forward and human rights challenges: Amnesty International Submissions for the UN Universal Periodic Review, 38th session of the UPR Working Group, 2-18 May 2021’,16 November 2020;

    o   Amnesty International, ‘Urgent Action: Sierra Leone Journalist Still Facing Restrictions’, 7 September 2015;

    o   Asylos, ‘Sierra Leone: The Kamajors, Score-Setting, and Psychiatric Treatment’, May 2020;

    o   Asylos, ‘Sierra Leone: LGBT’, June 2020;

    o   International Lesbian, Gay, Bisexual, Trans and Intersex Association, ‘State Sponsored Homophobia’, 2019;

    o   United Nations Development Program, ‘UNDP’s Engagement with the Media for Governance, Sustainable Development and Peace’, 30 January 2019;

    o   United Nations Human Rights Council, ‘Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya’, UN DOC A/HRC/25/55/Add.3, 3 March 2014.

1. On 14 February 2023, the Tribunal received the following documents:

   ·     The applicant’s passport, Sierra Leone driver’s licence, Press ID card and Voter ID card;

   ·     The applicant’s [Event 1] ID Card listing his role as ‘Journalist’;

   ·     A Certificate of Appreciation presented to [the applicant] from the Democracy of Sierra Leone issued February 2017;

   ·     Correspondence between Mr Zhang and [Mr N] from 12 October 2022 to 28 December 2022;

   ·     Medical referral letter by [Dr R] of [named] Medical Centre dated 23 December 2022, detailing the applicant’s referral to [Dr S];

   ·     Newspaper articles concerning the applicant:

   o   the [Publication 1] article;

   o   ‘[Article title]’ by [Mr T] for [Publication 2] published [in] December 2017;

   o   ‘[Article title]’ by [Mr T] for [Publication 2] published [in] December 2017 (original);

   o   ‘[Article title]’ by [Mr T] for [Publication 2] published [in] December 2017 (online printout);

   ·     Newspaper articles that were purportedly written by the applicant:

   o   ‘[Article title]’ by [the applicant] for [Employer 1] published [in] November 2014;

   o   ‘[Article title]’ by [the applicant] for [Employer 1] published [in] March 2015;

   o   ‘[Article title]’ by [the applicant] for [Publication 2] published [in] August 2017;

   o   ‘[Article title]’ by [the applicant] for [Employer 1] published [in] December 2017;

   o   ‘[Article title]’ by [the applicant] for [Employer 1] published [in] February 2018;

   o   ‘[Article title]’ by [the applicant] for [Employer 1] published [in] February 2018;

   ·     Further country information:

   o   Adams et al, ‘Stakeholder perspectives of Community Mental Health Forums: a qualitative study in Sierra Leone’ published in International Journal of Mental Health Systems on 10 July 2020;

   o   Amnesty International, ‘Speaking Out: Advocacy Experiences and Tools of LGBTI Activists in Sub-Saharan Africa’ published in 2014;

   o   Amnesty International, ‘They are Forgetting About Us: The Long-Term Mental Health Impact of War and Ebola in Sierra Leone’ published in 2021;

   o   Armed Conflict Location & Event Data Project, ‘When Emerging Democracies Breed Violence’ published 16 December 2020;

   o   Bah et al, ‘Prevalence of anxiety, depression and post-traumatic disorder among Ebola survivors in northern Sierra Leone: a cross sectional study’ published 11 September 2020;

   o   Betancourt et al, ‘The intergenerational impact of war on mental health and psychosocial wellbeing: lessons from the longitudinal study of war-affected youth in Sierra Leone’ published by Conflict and Health on 1 September 2020;

   o   Brima Gegbe, Peter M Muffuh and Kemoh V Sheriff, ‘Motivational Reasons for Consumers Behind Green Tea (Ataya) Consumption in Sierra Leone’ published in International Journal of Sciences: Basic and Applied Research published 17 May 2015;

   o   Dignity Association, Pride Equality and Dignity Association, ‘Discrimination on the Basis of Sexual Orientation and Gender Identity in Access to Health Care and Violence/Bias: A Sierra Leone Case Study’;

   o   Network, Kaleidoscope Trust and University of Glasgow Human Rights Network, ‘LGBTI People of the Commonwealth’ published in 2014;

   o   Government of Republic of Sierra Leone, Montrose and UK Aid, ‘Persons with disabilities’ access to health services in Sierra Leone: Context Analysis’ dated 1 October 2021;

   o   Government of Sierra Leone, ‘Government Budget and Statement of Economic and Financial Policies for the Financial Year 2023’ delivered by Dennis K Vandi, Minister of Finance in the Chamber of Parliament at 10.00am on Friday, 11th November 2022;

   o   Hopwood et al, ‘The burden of mental disorder in Sierra Leone: a retrospective observational evaluation of programmatic data from the roll out of decentralised nurse-led mental health units’ published in the International Journal of Mental Health Systems on 8 April 2021;

   o   International Service for Human Rights, ‘Briefing Paper Universal Periodic Review: The Situation of Human Rights Defenders in Sierra Leone’ dated October 2020;

   o   Ministry of Health and Sanitation of the Republic of Sierra Leone, Mental Health Policy 2010-2015’;

   o   Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘National Policy on Non-Communicable Diseases’ dated May 2013;

   o   Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘National Health Sector Strategic Plan 2017-2021’;

   o   Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘Non-Communicable Diseases (NCDs) Strategic Plan 2020-2024’ published 23 February 2020;

   o   National Endowment for Democracy, ‘Monitoring Press Freedom and Enhancing Reform of Media Laws in Sierra Leone: Report on Press Freedom in Sierra Leone – December 2019 to May 2020’;

   o   Ngambouk Vitalis Pemunta & Tabi Chama-James Tabenyang, ‘Cultural power, ritual symbolism and human rights violations in Sierra Leone’ published in Cogent Sciences on 3 March 2017;

   o   Robert Press, ‘Ripples of Hope: How Ordinary People Resist Repression Without Violence’, published by Amsterdam University Press in 2015;

   o   Sierra Leone NCDI Poverty Commission, ‘Sierra Leone Noncommunicable Diseases and Injuries Poverty Commission: Findings and Recommendations’ dated November 2020;

   o   United Nations, Human Rights Committee, Concluding observations on the initial report of Sierra Leone, UNDOC CCPR/C/SLE/CI/1 (17 April 2014);

   o   United Nations, Human Rights Council, Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15(c) of the annex to Human Rights Council resolution 5/1, UN DOC A/HRC/WG.6/11/SLF/3, 21 February 2021;

   o   United States Department of State, Sierra Leone 2012 Human Rights Report;

   o   United States Department of State, Sierra Leone 2013 Human Rights Report;

   o   United States Department of State, Sierra Leone 2020 Human Rights Report;

   o   United States Department of State, Sierra Leone 2021 Human Rights Report;

   o   Witter et al, ‘Opportunities and challenges for delivering noncommunicable disease management and services in fragile and post-conflict settings: perceptions of policy-makers and health providers in Sierra Leone’ published by Conflict and Health on 6 January 2020;

   o   World Bank Group, ‘Sierra Leone Needs Assessment Report’ dated June 2018; and

   o   World Health Organisation, ‘Mental Health Atlas 2020’.

2. On 12 April 2023, the Tribunal received a pdf document entitled ‘Democracy Sierra Leone’ that was published online by Peace Direct.

3. At 9am on 13 April 2023, the Tribunal received:

   ·     ‘[Article title]’ by [the applicant] for [Publication 2] published [in] February 2017;

   ·     ‘[Article title]’ by [the applicant] for [Publication 2] published [in] February 2017;

   ·     Screenshot from Medicare transaction for the applicant’s attendance on 30 March 2023 for a psychological assessment with [Dr S];

   ·     Letter from [Dr S] MA, PhD, MAPS, Clinical Psychologist, confirming the applicant’s initial consultation on 30 March 2023;

   ·     The applicant’s Medicare Claims History record for medical service provision between 13 January 2023 and 13 April 2023.

4. At 9.39am on 13 April 2023, the Tribunal received a statement written by the applicant on 22 May 2018 entitled ‘[title]’.  This document had already been provided by the applicant to the Department.

   The hearing: supporting documents and oral evidence

5. The applicant appeared before the Tribunal on 13 April 2023 to give evidence and present arguments. The Tribunal hearing commenced at 9.48am and concluded at 2.09pm.  The hearing was conducted with the assistance of an interpreter in the Krio and English languages. Ms Battisson and Mr Zhang also attended the hearing.  The applicant did not provide the Tribunal with any additional supporting documents at hearing.

6. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a protection visa, the Tribunal explained to the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to complementary protection.  The Tribunal then explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Sierra Leone. The Tribunal further explained that this meant that it must be satisfied that there is a real chance that he would face serious harm if he returned to Sierra Leone and that the harm must be directed at him for one of the following reasons: race, religion, nationality, membership of a particular social group or political opinion.  It was further explained to the applicant that with regard to complementary protection, there must be substantial grounds for believing that there is a real risk that he will suffer significant harm if removed from Australia to Sierra Leone.

7. Taking into account the content of the applicant’s claims and evidence, the Tribunal then impressed upon the applicant that it was his responsibility to make his case and drew to his attention, in the presence of Ms Battisson and Mr Zhang, that pursuant to s 5AAA of the Act, it was not the Tribunal’s responsibility or obligation to:

   ·     specify or assist in specifying the particulars of his claim;

   ·     establish or assist in establishing a claim.

8. During the hearing, the Tribunal took evidence from two witnesses in Sierra Leone nominated by the applicant, namely [Mr N] (the publisher of [Publication 2]) and [Mr O] (Managing Editor of [Employer 1]).  The Tribunal attempted to contact the applicant’s third witness in Sierra Leone, [Mr P] (the applicant’s defence lawyer) but he did not answer when the Tribunal called the telephone number specified by the applicant.

9. A range of issues were canvassed during the hearing in relation to the applicant’s claims for protection based upon his physical and mental health as well as his political opinion, actual or imputed. Where relevant, the oral evidence of the applicant, [Mr N] and [Mr O] is discussed in the Tribunal’s findings and reasons below.  

   Post-hearing submissions and evidence

10. On 21 April 2023, the Tribunal received the following documents:

    ·     The applicant’s Supplementary Submissions prepared by Ms Battisson and dated 20 April 2023;

    ·     The applicant’s statutory declaration made on 20 April 2023;

    ·     [Hospital 1] web page for [Dr U] (accessed 18 April 2023);

    ·     ‘Assessment of Knowledge, Stigmatizing Attitudes and Health-Seeking Behaviors Regarding Hepatitis B Virus Infection in a Pharmacy and Community Setting in Sierra Leone: A Cross-Sectional Study’, Healthcare, published 6 January 2023;

    ·     Website information - Hepatitis B, Mayo Clinic (accessed 20 April 2023).

    CONSIDERATION OF Claims and evidence

    Nationality: Country of reference/receiving country

11. The applicant claims to be a citizen of Sierra Leone and provided to the Department a copy of his Sierra Leonean passport issued [in] 2017. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Sierra Leone. The Tribunal accepts that Sierra Leone is his receiving country for the purpose of assessing his claims for protection.

    Credibility

12. Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[1]  There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

    [1] Fox v Percy (2003) 214 CLR 118

13. As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[2]  As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [2] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

14. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

15. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[3]   A similar approach is taken in the Department’s Refugee Law Guidelines[4]  and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[5] which provides useful guidance for this Tribunal.

    [3] SZLVZ v MIAC [2008] FCA 1816 at [25]

    [4] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)

    [5] UNHCR Handbook, re-issued February 2019 at [203]–[204]

16. In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[6] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[7] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[8]

    [6] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9

    [8] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

17. The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[9] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[10] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [9] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)

    [10] Ibid

18. Having outlined the Tribunal’s approach to fact-finding, in determining whether the applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters.  In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[11]  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.[12]

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

    [12] 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

19. The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed.  Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13]  Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim.  The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims.  Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim.  It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision.  There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[14] 

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

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

20. In the present case, the Tribunal takes into account the applicant’s evident lack of familiarity with the Tribunal setting and his limited English language proficiency.  The Tribunal has also had regard to the AAT Migration and Refugee Division Guidelines on Vulnerable Persons.[15]  With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.

    [15] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)

    Independent information

21. Hepatitis B is a potentially life-threatening liver infection caused by the hepatitis B virus (HBV). It is a major global health problem. It can cause chronic infection and puts people at high risk of death from cirrhosis and liver cancer.[16] The World Health Organization (WHO) estimates there were 296 million chronic cases of HBV globally in 2019, most of which remain undiagnosed or untreated.[17] Countries in sub-Saharan Africa, which includes Sierra Leone, are disproportionately impacted by HBV and report some of the highest prevalence rates of HBV globally. Sierra Leone is regarded as a hyperendemic country in relation to the prevalence of HBV, with several recent studies recording HBV prevalence rates ranging from 8% to 22% in various demographic groups.[18]

    [16] Ghazzawi M, Yendewa SA, James PB, Massaquoi SP, Babawo LS, Sahr F, Deen GF, Kabba M, Ocama P, Lakoh S, Salata RA, Yendewa GA. Assessment of Knowledge, Stigmatizing Attitudes and Health-Seeking Behaviors Regarding Hepatitis B Virus Infection in a Pharmacy and Community Setting in Sierra Leone: A Cross-Sectional Study. Healthcare. 2023; 11(2):177. Ghazzawi M, Yendewa SA, James PB, Massaquoi SP, Babawo LS, Sahr F, Deen GF, Kabba M, Ocama P, Lakoh S, Salata RA, Yendewa GA. Assessment of Knowledge, Stigmatizing Attitudes and Health-Seeking Behaviors Regarding Hepatitis B Virus Infection in a Pharmacy and Community Setting in Sierra Leone: A Cross-Sectional Study. Healthcare. 2023; 11(2):177. type="1">

22. Recent research indicates that in Sierra Leone, there is a stigma associated with HBV.[19] A high proportion of those afflicted with HBV have reported being affected by stigma in recent surveys.[20]  Sufferers reported that stigma may affect sufferers through feelings of isolation from family members, spousal/partner abandonment, lost career opportunities, and most commonly, social exclusion. Stigma such as these act as a major barrier to HBV status disclosure and may affect a person’s willingness to seek treatment in Sierra Leone.[21]

    [19] Ghazzawi M, Yendewa SA, James PB, Massaquoi SP, Babawo LS, Sahr F, Deen GF, Kabba M, Ocama P, Lakoh S, Salata RA, Yendewa GA., ‘Assessment of Knowledge, Stigmatizing Attitudes and Health-Seeking Behaviors Regarding Hepatitis B Virus Infection in a Pharmacy and Community Setting in Sierra Leone: A Cross-Sectional Study’, Healthcare. 2023; 11(2):177. & Yendewa, GA, Sellu, EJ, Kpaka, RA, et al. Measuring stigma associated with hepatitis B virus infection in Sierra Leone: Validation of an abridged Berger HIV stigma scale. J Viral Hepat. 2023; 00: 1- 9

    [20] Ibid.

    [21] Yendewa, GA, Sellu, EJ, Kpaka, RA, et al. Measuring stigma associated with hepatitis B virus infection in Sierra Leone: Validation of an abridged Berger HIV stigma scale. J Viral Hepat. 2023; 00: 1- 9

23. In the recent past, Sierra Leone has been through a civil war (1991 – 2002) and a severe Ebola outbreak in 2014. The health system of Sierra Leone has struggled to cope with the combined burdens of the war and the Ebola outbreak. Both of these events are said to have led to significant mental health problems in the country.[22] Amnesty International reports that the impact of the war and disease in Sierra Leone was severe and that the mental health needs of the population, arising from these past crises, are substantial.[23]

    [22] Amnesty International, ‘They are Forgetting About Us: The Long-Term Mental Health Impact of War and Ebola in Sierra Leone’, 2021

    [23] Ibid.

24. A WHO study conducted in the aftermath of the civil war estimated that up to 4% of the population may suffer from severe depression.[24]  Actual rates of depression may be much higher.[25]  A 2017 study estimated that there were 832,000 people with an existing mental disorder in Sierra Leone (prevalence 11.1%), with 319,300 new disorders every year. The study identified the most common mental disorders as depressive disorders and anxiety disorders.[26]

    [24] Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘National Health Sector Strategic Plan 2017-2021’; Hopwood, H., Sevalie, S., Herman, M.O. et al., ‘The burden of mental disorder in Sierra Leone: a retrospective observational evaluation of programmatic data from the roll out of decentralised nurse-led mental health units’, Int J Ment Health Syst 15, 31 (2021).

    [25] Hopwood, H., Sevalie, S., Herman, M.O. et al. The burden of mental disorder in Sierra Leone: a retrospective observational evaluation of programmatic data from the roll out of decentralised nurse-led mental health units. Int J Ment Health Syst 15, 31 (2021).

    [26] Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘Non-Communicable Diseases (NCDs) Strategic Plan 2020-2024’, published 23 February 2020

25. The Government of Sierra Leone health policy recognises that the country has deficiencies in ensuring that the mental health needs of the people of Sierra Leone are met and that mental health services are to be integrated into the wider national healthcare system.[27]  Policy documents indicate that mental health infrastructure in Sierra Leone is to be expanded and decentralised in order to improve capacity to provide wider access to mental health services.[28] Major Depressive Disorder has been identified as a priority condition in Sierra Leone.[29]  However, mental health infrastructure in Sierra Leone is under resourced and it is estimated that around 98% of people with mental health problems are untreated.[30] There is a single psychiatric hospital in Sierra Leone.[31]

    [27] Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘Mental Health Policy 2010-2015’

    [28] Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘National Health Sector Strategic Plan 2017-2021’

    [29] Sierra Leone NCDI Poverty Commission, ‘Sierra Leone Noncommunicable Diseases and Injuries Poverty Commission: Findings and Recommendations’ dated November 2020

    [30] Hopwood, H., Sevalie, S., Herman, M.O. et al. The burden of mental disorder in Sierra Leone: a retrospective observational evaluation of programmatic data from the roll out of decentralised nurse-led mental health units. Int J Ment Health Syst 15, 31 (2021).

    [31] Ministry of Health and Sanitation of the Republic of Sierra Leone, ‘Mental Health Policy 2010-2015’; Hopwood, H., Sevalie, S., Herman, M.O. et al., ‘The burden of mental disorder in Sierra Leone: a retrospective observational evaluation of programmatic data from the roll out of decentralised nurse-led mental health units’, Int J Ment Health Syst 15, 31 (2021).

26. Country information suggests that persons suffering from mental illness do face discrimination. The US State Department has consistently reported that there is considerable discrimination against persons with mental illness in Sierra Leone. This has included reports of physical mistreatment and confinement.[32]  Persons with mental illness can face social exclusion and harassment.[33] The US Department of State recently reported:

    The Persons With Disabilities Act prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment and provision of state services, including judicial services. The government did not effectively implement laws and programs to provide access to buildings, information, and communications. The government-funded Commission on Persons with Disabilities is charged with protecting the rights and promoting the welfare of persons with disabilities. Given the high rate of general unemployment, work opportunities for persons with disabilities were few, and begging by them was commonplace. Children with disabilities were also less likely to attend school than other children.

    There was considerable discrimination against persons with mental disabilities. The vast majority of persons with mental disabilities received no treatment or public services. The Sierra Leone Psychiatric Hospital in Kissy, the only inpatient psychiatric institution that served persons with mental disabilities, was underfunded. It had only one consulting psychiatrist, patients were not provided sufficient food, and restraints were primitive and dehumanizing. The hospital lacked running water and only sporadic electricity. Only basic medications were available.[34]

    [32] United States Department of State, Sierra Leone 2021 Human Rights Report; United States Department of State, Sierra Leone 2020 Human Rights Report; United States Department of State, Sierra Leone 2013 Human Rights Report

    [33] Adams et al, ‘Stakeholder perspectives of Community Mental Health Forums: a qualitative study in Sierra Leone’, published in International Journal of Mental Health Systems 10 July 2020

    [34] Sierra Leone 2017 Human Rights Report  in Country Reports on Human Rights Practices for 2017, Bureau of Democracy, Human Rights and Labor, United States Department of State, 2018, ; see also 2021 United States Department of State Report on Sierra Leone

27. Mental illness also carries a stigma in Sierra Leone.[35] Research indicates that mental health literacy is extremely low, and that mental illness is often viewed as something that is brought upon oneself or as the result of supernatural activity. The use of traditional healers is widespread in Sierra Leone, and a 2005 study found that up to 88% of people with mental disorders had sought help from a traditional healer before accessing psychiatric care.[36] An NGO in Sierra Leone surveyed attitudes towards mentally ill persons and reports:

    It has been over a decade since then, but progress has been slow. Despite efforts by international organisations and aid agencies to channel funding towards mental healthcare, there is still only one hospital in the country equipped to treat patients with mental health issues, meaning many have to rely on traditional healers.

    Meanwhile awareness campaigns aimed at educating people about mental health also still have a long way to go. A study of Sierra Leoneans’ perceptions of mental health in 2002 found that 25% thought psychological conditions were associated with “spirits, curses or demons”. Many of these understandings and many of the stigmas around mental health still remain today…[37]

    [35] Harris D, Endale T, Lind UH, Sevalie S, Bah AJ, Jalloh A, Baingana F., ‘Mental health in Sierra Leone’, BJPsych Int. 2020 Feb;17(1):14-16. doi:10.1192/bji.2019.17. PMID: 34287429; PMCID: PMC8277533

    [36] Ibid.

    [37] ‘Africa: Nurses Not Curses – Witchcraft Beliefs and Mental Health in Sierra Leone’, WAMM, 29 December 2015

28. Traditional attitudes and beliefs effectively demonise those with serious mental health issues[38] causing serious harm to people who, in the absence of such prejudice and antipathy, might be better treated:

    Sierra Leone, like most African countries, is highly traditional. Sickness especially mental health-related, is often associated with witchcraft or bad juju. Thus, in most cases the first port of call to treat mental illness is traditional healers (herbalists) or spiritualists seeking divine intervention.

    While the precise burden of mental and neurological disorders in Sierra Leone is under-researched, it is estimated that one in four people in any low income country has a mental illness. Sierra Leone has a dire shortage of trained mental health specialists with limited availability of mental health services outside of Freetown. There are 19 general mental health nurses and four Child and Adolescent Mental Health Nurses in the country.

    In 2016 there was only one retired psychiatrist but two newly qualified psychiatrists have since returned to Sierra Leone.

    In Kenema, Mental Health Nurse, Hawanatu Foday, explained, “until recently, awareness about mental health and its treatment was mostly lacking. The community did not consider mental illness to be a medical condition. Instead they attributed it to various causes including witchcraft, ancestral curses or demonic influences. As such, whenever a relative or community member suffers from mental illness, community members would first consider ‘spiritual cleansing’, which almost always ends up with no cure.”

    [38] “Traditional treatments impedes [sic] mental health care,” Awoko, 20 April 2017 news-traditional-treatments-impedes-mental-health-care/

29. It is also reported that in addition to social deprivation, losing their jobs, losing social prestige and becoming isolated from their families and societies, persons with serious mental health conditions are reported to suffer inhuman forms of liberty-deprivation under the auspices of an outdated legal framework, the Lunacy Act of 1902. Some patients were reportedly kept in isolation for months and many were physically restrained with chains and padlocks, and the dosages given of psychiatric medications are high.[39]  Other forms of mistreatment of persons with mental health difficulties living in the community have included confinement and beatings.[40]

    [39] Van Gog, JG, Talking about the Sierra Leone ‘Kresyad’: An ethnographic exploration of the Sierra Leone psychiatric hospital (unpublished Msc Thesis), 2009, cited in Alemu W, Funk, M, Gakurah T, Bash-Taqi D, Bruni A, Sinclair J, Kobie A, Muana A, Samai M, Eaton J, WHO profile on mental health in development (WHO proMIND): Sierra Leone World Health Organisation, Geneva, 2012

    [40] Adams et al, ‘Stakeholder perspectives of Community Health Forums: a qualitative study in Sierra Leone’, International Journal of Mental Health Systems, 10 July 2022, p.11

30. Finally, a recent study of mental health in Sierra Leone indicates that there is a widespread lack of understanding in the community about the range of mental health conditions that give rise to expressions of psychological distress.  Researchers concluded that Sierra Leoneans do not discretely categorise mental health in terms of western conceptualisations and diagnoses such as ‘schizophrenia’, ‘post-traumatic stress disorder’, ‘anxiety’ and ‘depression’.  Instead, mental illness is conceptualised in terms of a ‘continuum of distress’ and there was a lack of consistency in how signs of psychological distress were to be characterised and understood:

    The lack of recognised and named syndromes of distress in Sierra Leone is unexpected, given the findings of studies in other cultural settings which used similar methodologies (e.g. Rasmussen et al., 2011; Ventevogel et al., 2013). However, when the findings were discussed with Sierra Leonean members of the research team and national experts (e.g. members of the Mental Health Coalition-Sierra Leone) they did not express surprise. Their understanding was that in Sierra Leone, people are seen as either crase or well, with some recognition also of a temporary ‘not normal’ state in response to difficult events.[41]

    [41] Horn, R. et al, ‘Expressions of psychological distress in Sierra Leone: implication for community-based prevention and response’, Global Mental Health, Cambridge Prisms, 29 July 2020, (accessed 16 May 2023)

31. On that basis, the Tribunal has considered other sources in order to inform itself of the likely signs of distress generally displayed by persons suffering from a major or persistent depressive disorder.  To that end, the Tribunal notes that for many people diagnosed with major depression, ‘symptoms are usually severe enough to cause noticeable problems in day-to-day activities, such as work, school, social activities or relationships with others’.  Such persons are likely to be recognised by others as having a mental illness due to the manifestation of a range of symptoms including ‘angry outbursts, irritability or frustration’, ‘anxiety, agitation or restlessness’, ‘slowed thinking, speaking or body movements’, expressions of ‘suicidal ideation’ and ‘suicide attempts’.[42]

    [42] ‘Major Depression – Mental and Behavioural Health – Mood Disorders’, John Hopkins Medicine, The John Hopkins University, (accessed 16 May 2023)

    Assessment

32. The Tribunal has first considered the claims arising from the applicant’s mental health condition.  These claims were not before the Department as they arose after the applicant’s HBV diagnosis in Australia in 2019.

33. Before the Tribunal is [Dr Q]’s report which generally outlines the applicant’s family background and medical history in a manner consistent with his written claims and oral evidence to the Tribunal. Of particular interest to the Tribunal are the following observations in that report:

    16. Medical history. I note that [Dr U] has certified in a letter dated 18 December 2019 that [the applicant] has a chronic liver condition and is on treatment. His next appointment with [Dr U] is reportedly on 7 June 2023. [The applicant] stated that he has blood tests every two months and ultrasounds every six months. He has also been prescribed Tenofovir, a medication for treating hepatitis B. [The applicant] provided a photograph of empty bottles of his medication.

    …

    18. Mental health history. [The applicant] stated that his mental health has never been formally assessed and, therefore, he is unaware of any mental health condition. He recalled feeling ‘sad’ when he was a child due to his family’s hardships and poverty from the civil war. He further mentioned that his older siblings were unhappy because they had experienced more years of stability and financial security before the family was internally displaced.

    19. [The applicant] indicated that he had lost four family members, including his mother and brothers, since 2018. He believed that he is emotionally affected by these losses. He stated that he does not know the causes of his family members’ deaths and said that unknown causes of death are common in Sierra Leone. [The applicant] expressed, “The health [system] is bad in Sierra Leone. If I am there, I will be dead now.” When asked to elaborate, he repeated that he suffers from a chronic health condition that requires treatment for the rest of his life.

    20. [The applicant] reported that he has been feeling very distressed about his liver condition since the diagnosis was made. When he was asked to provide further information on his medical condition, including its severity, he did not provide a direct answer but reiterated his concern about “dying from the problems with my health.” He said that his health problem “is too much” for him to manage. He further said, “Last time I went to my GP for blood test, my heart was beating very fast…[The GP] checked and [said] my heart is alright.” It appears that [the applicant] was experiencing physiological signs of anxiety.

34. Following her psychological assessment of the applicant, and consideration of the applicant’s Personality Assessment Inventory (PAI) test results, [Dr Q] made a number of observations in her report, aspects of which accord with the applicant’s presentation and behaviour at hearing:

    35. Notwithstanding, [the applicant]’s PAI clinical profile is marked by significant elevations across a number of different scales, indicating a broad range of clinical features and increasing the possibility of multiple diagnoses. The configuration of the clinical scales suggests a person who is reporting marked distress, with particular concerns about his physical functioning. He sees his life as severely disrupted by a variety of physical problems, some of which may be stress-related. These problems have left him feeling tense and unhappy and have probably impaired his ability to concentrate on or perform important life tasks.

    36. [The applicant] demonstrates an unusual degree of concern about physical functioning and health matters and probably impairment arising from somatic symptoms. He is likely to report that his daily functioning has been compromised by numerous and varied physical problems. He feels that his health is not as good as that of his peers and likely believes that his health problems are complex and difficult to treat successfully. He reports particular problems with the frequent occurrence of various minor physical symptoms (such as headaches, pain) and has vague complaints of fatigue. His social interactions and conversations tend to focus on his health problems, and his self-image may be largely influenced by a belief that he is handicapped by his poor health.

    37. [The applicant] reports that he is experiencing a discomforting level of anxiety and tension. He indicates that he is experiencing specific fears or anxiety surrounding some situations, which may be his current matter with the AAT. The primary manifestation of his anxiety appears to be in the physiological or somatic modality. Overt physical signs of tension and stress, such as sweaty palms, trembling hands, complaints of irregular heartbeats, and shortness of breath, are prominent. In contrast, the clinical picture does not appear to be characterised by common cognitive and affective signs of anxiety as major features.

35. For the purposes of its assessment, the Tribunal has had particular regard to the following key aspects of [Dr Q]’s diagnostic and prognostic conclusions:

    49. It is my opinion that [the applicant] suffers from Adjustment Disorder with mixed anxiety
    and depressed mood as defined by the Diagnostic and Statistical Manual of Mental
    Disorders (DSM-5). This condition is marked by the development of emotional and
    behavioural symptoms in response to identifiable stressors. For [the applicant], his most
    concerning stressor at the time of assessment was his health condition. The relationship
    between chronic liver disease and depression is well documented in the literature. At the
    interview, [the applicant] spoke extensively about his distress from his health problems. His
    photograph of the empty medication bottles is another indicator of his pre-occupation
    (albeit unhelpful) with his health. He did not report any strategies for coping with his
    psychological symptoms and he has never received professional mental health
    intervention. However, he recognised his need for help and is willing to engage in
    treatment.
    …
    52. [The applicant]’s psychological condition has caused significant impairment in his social,
    vocational, practical, and other areas of functioning. By definition, the symptoms of
    Adjustment Disorder will resolve within six months of the termination of the stressors.
    However, [the applicant]’s liver condition is chronic and, therefore, his anxiety and depressive
    symptoms are persisting. Without psychological treatment, his condition may likely
    develop into a Major Depressive Disorder or Persistent Depressive Disorder.
    …

    56. As noted in paragraph 52, [the applicant]’s condition may develop into a Major Depressive
    Disorder or Persistent Depressive Disorder if he does not receive ongoing psychological
    treatment. Depressive Disorders are found to adversely impact an individual’s
    psychosocial functioning across multiple areas of life. This is already seen in [the applicant]’s
    social withdrawal, lack of interest in forming supportive relationships, and emerging
    difficulty in performing his work responsibilities. His current quality of life is poor and
    there is no indication that this will improve without psychological intervention. [The applicant]
    does not presently report suicidal ideation, although depressive disorders have been
    associated with a higher risk of self-harm and suicide.

1. At hearing, the applicant told the Tribunal that he had been diagnosed with HBV in Australia. He told the Tribunal of his belief that three of his brothers had died in Sierra Leone because of hepatitis B disease and that he feared a similar fate if he were to return to Sierra Leone. He spoke of the lack of treatment and appropriate medical care for persons living with HBV in Sierra Leone. He told the Tribunal his concerns that the lack of diagnostic and medical facilities in Sierra Leone meant that only those persons living with HBV who could afford to travel overseas and obtain quality treatment, including appropriate medications, were likely to survive. His hands trembled and voice wavered as he explained that the ‘option’ for other persons living with HBV in Sierra Leone was death, after having to avail themselves of ineffective traditional treatments. He then wept.   

2. After a short adjournment to allow the applicant to compose himself, the Tribunal sought to explore the applicant’s perception of his mental health since he had been diagnosed with HBV.  The applicant told Tribunal that, since his diagnosis, he has been feeling extremely stressed and fearful about his health declining and what that might mean for him if he were forced to return to Sierra Leone. Asked to elaborate, the applicant stated that he feared that his mental health would decline, as his physical health was sure to decline due to his inability to access appropriate healthcare in Sierra Leone. He told the Tribunal that he feared ostracisation because of his physical health condition and that eventually his mental health would also decline.  He also told the Tribunal that people with mental illnesses experience ill-treatment in Sierra Leone.  He said that in many parts of the country people with mental illnesses have been rejected by their family and society and are mistreated by way of witchcraft or kept in chains inside their family home.  

3. Taking into account the applicant’s presentation and behaviour during the hearing, the Tribunal allowed him an opportunity to provide further submissions and evidence in relation to his current physical and mental health and what he feared would happen to him if he were to return to Sierra Leone given his condition. 

4. Following the hearing, any by way of a further statutory declaration, the applicant outlined the circumstances surrounding the onset of his hepatic illness in 2019 and its diagnosis by specialist hepatologist [Dr U] in late 2019.  [Dr U] had diagnosed him with chronic liver disease through HBV infection and, after taking his family history, told him that his mother, who had died in late 2018 because of ‘fever’ and malaria, had probably died of hepatitis B.  He further explained that if he were to return to Sierra Leone he would not have access to appropriate health care including medicines and treatment by specialist hepatologists.  He stated that this fear was exacerbated by the fact that he had a high viral load and chronic liver disease. He stated that there is stigma associated with HBV infection in Sierra Leone as ‘Sierra Leoneans associate Hepatitis B with HIV and AIDS’. He stated that, in Sierra Leone, he would be shunned and that people would not want to work with him or socialise with him, thereby impacting upon his ability to gain and maintain employment. He explained his inability to disclose his condition to his partner, having only told her that he has a liver problem and is on treatment.  He fears that such disclosure would lead to her abandoning him or unintentionally revealing his status to others.  He also feared that others in Sierra Leone would find out about his HBV condition if he tried to seek treatment for his illness at medical clinics and hospitals in Sierra Leone.  He concluded that the prospect of his physical health declining, along with his inability to access effective treatment and support for his mental health condition, would eventually mean that he would ‘deteriorate to a state where it will be very obvious that I am mentally ill.’

   Analysis, reasons and findings

5. Given the paucity of appropriate health care resources available to persons living with HBV and mental illnesses in Sierra Leone, along with the applicant’s mental health diagnosis and prognosis outlined in [Dr Q]’s report, the Tribunal is prepared to accept that the applicant’s mental illness would deteriorate in Sierra Leone such that his condition would develop into a Major Depressive Disorder or Persistent Depressive Disorder. 

6. In considering the issue of whether the applicant will demonstrate physical symptoms of mental illness to a degree that would cause him to be identified as mentally ill by member of the community in Sierra Leone, the Tribunal has had regard to [Dr Q]’s prognosis, the applicant’s behaviour at hearing and the independent information summarised above in relation to the noticeable signs of distress commonly displayed by persons with major depression.  As noted above, the Tribunal accepts that the applicant’s mental health will significantly deteriorate if he returns to Sierra Leone due to the lack of appropriate mental health care and support.  The Tribunal also accepts [Dr Q]’s prognostication that the applicant’s decline in mental health will be exacerbated by a range of factors in Sierra Leone, including his inability to secure appropriate health care to manage his chronic liver condition.  On that basis, the Tribunal finds that the applicant will become mentally unwell and demonstrate the behaviours of a psychologically distressed person, including acting inappropriately in certain situations, if he returns to Sierra Leone.  Together with the fact he will be required to seek public services and support for his hepatic condition and his mental health, the Tribunal finds that there is a chance which is not remote that his mental health issues will become evident within the community.

7. Based upon the independent information summarised above, the Tribunal is satisfied that substantial endemic discriminatory assumptions about mentally ill persons continue to be present in Sierra Leonean society and in parts of the very under-resourced Sierra Leonean mental health care system, despite recent attempts by the government to improve the rights and treatment facilities for mentally ill persons.

8. Based on the country information outlined above, the Tribunal is also satisfied that there is a real chance the applicant will be stigmatised by the community and regarded as an evil person or someone affected by demons or witchcraft. In such circumstances, the Tribunal finds that the applicant faces a real chance of societal discrimination including abuse, isolation, neglect and/or physical harm.  The Tribunal is satisfied that such treatment amounts to serious harm. Additionally, the Tribunal finds the applicant’s mental health could also be further exacerbated if he seeks professional intervention in Sierra Leone due to a reported lack of understanding, education and fear on the part of psychiatric health professionals leading to mistreatment and neglect of mentally ill patients.

9. The Tribunal finds the reason for the harm will be the applicant’s membership of a particular social group – ‘persons suffering from mental illness in Sierra Leone’ – and this is the essential and significant reason for the persecution. This is because of common and ongoing prejudicial attitudes towards persons with mental illness due to superstitious perceptions about the mentally ill. The Tribunal is satisfied that persons suffering mental illness in Sierra Leone have a characteristic common to all members – their mental illness. This characteristic is an illness and not the shared fear of persecution and the possession of that characteristic distinguishes the group from society at large.

10. Despite the work reportedly undertaken by international agencies to assist the Sierra Leonean government to improve its approach to mental illness, independent reporting nevertheless highlights ongoing deficiencies in light of ineffective implementation of laws and programs. Therefore, the Tribunal is not satisfied that effective state protection will be available to the applicant against the harm he fears.            As the situation for mentally ill persons is state-wide, the Tribunal finds the applicant will be at risk of serious harm anywhere in Sierra Leone.

11. For these reasons, the Tribunal finds the applicant has a well-founded fear of persecution if he returns to Sierra Leone now or in the reasonably foreseeable future for reason of his membership of a particular social group – ‘persons suffering from mental illness in Sierra Leone’.

12. In view of this finding, the Tribunal has not found it necessary to consider the other claims raised by the applicant in his written and oral submissions.

13. The Tribunal notes that s 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. In this case, the applicant’s grounds for claiming protection due to his mental health condition arose after he arrived in Australia. There are no possible steps he could have taken to avail himself of a right to enter and reside in a third country, notwithstanding any arrangements that may exist under the auspices of the Economic Community of West African States (ECOWAS) in relation to the rights to enter and reside in neighbouring African states.

14. Additionally, s 36(4)(a) of the Act provides that s 36(3) does not apply in relation to a country in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There is information before the Tribunal which indicates that discriminatory and prejudicial societal and institutional attitudes towards people with mental illnesses are reportedly little different in neighbouring countries such as Togo, Liberia, Guinea and Ghana.[43] The Tribunal is satisfied that the applicant is saved by s 36(4)(a) of the Act.

    [43] ‘The Chains of Mental Illness in West Africa’, The New York Times, 11 October 2015; Barke, A. et al, ‘The stigma of mental illness in Southern Ghana: attitudes of the urban populations and patients’ views’, Social Psychiatry and Psychiatric Epidemiology, 2011; 46(11); 1191-1202; Published online 26 September 2010 doi: 10.1007/s00127-010-0290-3

15. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

    DECISION

16. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Peter Papadopoulos
    Member

    
    

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

    The relevant law

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

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

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

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

    Mandatory considerations

    In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Extract of key provisions of the Migration Act 1958

    5 (1) Interpretation

    …

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

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    5H    Meaning of refugee

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

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

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

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

    …

    5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K    Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L    Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    …

    36     Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …