1825769 (Refugee)

[2023] AATA 1438

1825769 (Refugee) [2023] AATA 1438 (15 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Nathan Stephen Willis (MARN: 1467692)

CASE NUMBER:  1825769

COUNTRY OF REFERENCE:                   Sierra Leone

MEMBER:Peter Papadopoulos

DATE:15 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 15 May 2023 at 11:11am

CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion – membership and activity in political party, now in opposition – relative of senior party leader – intimidation and verbal abuse, but no harm – while applicant in Australia, home searched and family members attacked – fear of harm from governing party supporters and security forces – capacity to earn livelihood – credibility – inconsistent, exaggerated and fabricated claims and evidence with limited or no corroborating evidence provided – vague knowledge of relevant political information – limited, local, low-profile activities, and none while in Australia – authenticity of newspaper article – country information – largely free and fair elections and low-level intimidation and violence – ethno-regional divisions and tensions – request for referral for ministerial consideration – strong compassionate circumstances – relationship with Australian citizen with one child born and another due – no evidence provided to support request – matter not referred but applicant may request directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J(1), (5), 36(2)(a), (aa), 65, 417, 423A

CASES
Abebe v Commonwealth (1999) 197 CLR 510
AVQ15 v MIBP [2018] FCAFC 133
Chand v MIEA [1997] FCA 1198
Davis v MICMSMA; DCM20 v Secretary, DHA [2023] HCA 10
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
SZLVZ v MIAC [2008] FCA 1816

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [Age] year old man from Sierra Leone. He claims to be a national of Sierra Leone.

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

3. On 9 May 2018, he applied for a Subclass 866 Protection (Class XA) visa (protection visa).

4. On 27 August 2018, the delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.

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

6. The issue in this case is whether the applicant is either a refugee or a person who meets the criteria 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 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Claims and evidence provided to the Department

   Protection visa application

8. According to information contained in his protection visa application, the applicant is a [Age] year old Sierra Leonean national who was born in Freetown, Sierra Leone.

9. Based upon information in the protection visa application form that was signed by the applicant on 7 May 2018, the applicant:

   ·     departed Sierra Leone on [Day 1] March 2018 and arrived in Australia on [Day 2] March 2018;

   ·     speaks, reads and writes English, Krio and [Country 1 Language];

   ·     is [Religion];

   ·     belongs to [Ethnic group];

   ·     worked at [Employer] as a Deputy Manager from 2016 until he left Sierra Leone;

   ·     has been in a relationship with [Ms A], whom he described as his fiancée and wife, since May 2007;

   ·     had, at that time, [brothers], one sister, one step-sister and two children, a daughter, [Miss B] who was born on [Date], and a son, [Master C] who was born on [Date];

   ·     has resided outside Sierra Leone as follows:

   o   in [Country 1] from [October] 2012 until [April] 2016 for the purpose undertaking tertiary studies in the field of [Subject 1];

   o   in [Country 2] between [September] 2016 and [October] 2016 for the purpose of attending a conference meeting;

   o   in Australia since [March] 2018.

10. Based upon the information contained in his protection visa application form, along with a statement attached that form, the applicant articulated his claims for protection, in summary, as follows:

    ·     He has been a member of the All People’s Congress (APC) party since 2007.  In 2008, he was the APC’s [Party official 1].  In 2012, he was the [Party official 1] in [Constituency 1].  He is a member of the APC party’s national youth wing.

    ·     He commenced studies at [University] in 2007.  He worked as [an Occupation 1] for [Employer 1] during his first year of university.  After he completed his studies, his ‘hard work for the APC’ led to him being promoted in 2012 to the role of Deputy Manager of the [Unit] of [Employer 1]. 

    ·     He was a promoter of [Activity] in Sierra Leone.  He was a member of [Organisation 1] and chosen to be an ‘official’ and travel with the Sierra Leonean delegation to the 2018 [Event].  He is a co-owner of [Training organisation], an organisation that ‘trains [Specified people] all over the country’.

    ·     Before leaving Sierra Leone, he personally experienced intimidation and verbal abuse during the parliamentary and presidential elections.  He was not harmed before he left Sierra Leone because the APC held government at that time.

    ·     He left Sierra Leone to support the Sierra Leonean [participants] [participating] in the [Event] in [Location].

    ·     On 5 April 2018, the day after the final presidential election results were announced in Sierra Leone, SLPP supporters and government security forces went to his apartment in Sierra Leone to search for him. They raped his younger sister, beat his wife severely leaving her seriously injured and vandalised his apartment.  He does not know the whereabouts of his family.

    ·     He fears returning to Sierra Leone because he believes he will be threatened, harassed, intimidated and possibly killed by SLPP supporters and security forces loyal to the government.

    ·     He is unable to relocate within Sierra Leone to avoid harm from SLPP supporters because he is ‘well known throughout the country’ and the government has a task force and security forces across the country.

11. On 25 May 2018, the applicant provided the Department with a statement (statement of 25 May 2018) containing additional information and makes the following additional claims:

    Background

    ·     He is [Religion] of [Ethnic group] ethnicity and was born on [Date] in Freetown, Sierra Leone.

    ·     He is engaged to [Ms A].  He and [Ms A] have two children, [Miss B] and [Master C].

    APC membership, roles, patronage and campaigning

    ·     He joined the APC in 2007 whilst at university. His career commenced as a result of this membership and he obtained the position of ‘[Occupation 1]’ with [Employer 1]. He held that position from 2007 to 2012. After completing his university studies, he was promoted to the position of ‘Deputy [Unit] Manager’.

    ·     His [Relative], [Mr D], was a [Public official 1] in 2007, and the [Public official 2] in 2012. Their relationship is well-known in Sierra Leone.  [Mr D] is the APC’s [Party official 2]]and ‘[in line] to rule the APC’.  It is widely known that he is related to [Mr D].

    ·     In 2008, he was appointed the [Party official 1] for the APC throughout Sierra Leone.

    ·     In 2012, he was appointed [Party official 1] for the APC in [Constituency 1] in Freetown. This involved him being involved in the work of a committee that made recommendations to the APC headquarters on a range of issues including the appointment of constituency representatives.

    ·     [In] October 2017, he attended a [Conference] in [Location] with the APC. The purpose of this meeting was to vote for the APC presidential candidate.

    ·     As a member of the APC, he attended several meetings, conferences, rallies, support events and participated in several campaigns.

    ·     On 7 March 2018, a presidential election took place in Sierra Leone. In the lead-up to this election he campaigned as part of team for the APC party throughout Sierra Leone.

    Problems before he left Sierra Leone

    ·     After the first round of elections in 2018, SLPP members/supporters harassed and intimidated him in [Constituency 2]. They seized his car and took his keys. He recognised these people as SLPP members/supporters because they featured on local TV news programs.

    Problems after he left Sierra Leone

    ·     [In] March 2018, he came to Australia for the [Event]. He is a co-owner of an organisation called ‘[Training organisation]’ which trains [Specified people] in Sierra Leone. He had asked the APC to send him and his organisation to Australia for the [Event].

    ·     On 5 April 2018, his neighbour [Mr E] called him on his phone via WhatsApp. [Mr E] told him SLPP members, supporters and security forces had attended his family home in [Suburb] in Freetown. They beat his fiancée [Ms A], raped his younger sister [Ms F], and vandalised the apartment and his car. [Mr E] also said they were looking for him and that he was the one they wanted. He attached a clipping from a local [Newspaper 1] to support these claims.

    ·     Since this attack, his family have fled their family home in [Suburb] and gone into hiding and he has spoken with [Ms A] and [Ms F] ‘on several occasions’. [Ms A] told him that she had been beaten by a group of people who punched and kicked her, and stabbed her in the right leg. He attached photos of these injuries. He told [Ms F] that he knew what had happened to her and that she needed to be brave and to keep a low profile.

    ·     Since the 2018 run-off election, he saw a news broadcast on the AYV TV app which reported that SLPP supporters are chasing his [Relative] [Mr D].  He suspects his [Relative] and his [Relative]’s family are in hiding.  He suspects that there is a warrant of arrest issued for his [Relative] as that usually happens to former ministers after a change in power. 

    ·     He is part of an APC members WhatsApp group and has seen images of violence against APC members. On 24 May 2018, he received an email from his friend, [Mr G], suggesting he is not safe in Sierra Leone because the SLPP are continuing to search for him.

    Fears if he were to return to Sierra Leone

    ·     He fears he will be subject to serious harm, including beatings, torture and possibly murder, in connection with, and because of, his membership and support of the APC and his relationship with his [Relative] [Mr D]. He fears harm from the SLPP and its supporters.  He also fears that there will be warrant of arrest issued against him because of his affiliation with and position in the APC. 

    ·     He does not believe the local authorities can offer him protection due to the influence of the SLPP on local offices. Further, due to the widespread nature of violence, he does not believe relocation is a viable alternative.

    Protection visa interview

12. The applicant attended an in-person interview with the Department in connection with his protection visa application on 4 June 2018 and a further telephone interview on 18 June 2018.  The interview was conducted with the assistance of an interpreter in the Krio and English languages.

13. The Tribunal has listened to a copy of the recording of the in-person and telephone interviews (the interview) and refers to the interview, where relevant, in the findings and reasons below.  However, for sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the applicant during the protection visa application interview held on 4 June 2018:

    ·     He commenced work with [Employer 1] when he was at university in 2007. He said he received this role because of his involvement with the APC and because he had completed a 1-year [Subject 2] course prior to commencing university. During his studies, he would attend university three days per week and work after he finished.

    ·     He would run [Training organisation] on the weekends. This involved the training of [Specified people] and the seeking of sponsorships. He would approach businesses and ask them to sponsor [Specified people]. He would also host events. Money would be raised at these events and they would be used to fund [Training organisation] but where there was a deficit, he would pay out of his own pocket.

    ·     He had been the [Party official 1] at his university between 2008 and 2009. He said this was an elected role and he received it after campaigning at his and other universities.

    ·     In 2012, he was elected as the [Party official 1] in [Constituency 1]. He said that only the Chairman, Deputy Chairman, Treasurer and Deputy Treasurer were higher in authority than him. He was responsible for more than 1,000 people. He would organise meetings by having letters sent to each individual’s door. He would organise for young members to deliver the notes.

    ·     After the 2012 election, he travelled to [Country 1] to study. He continued to act in his role as the [Party official 1] in [Constituency 1]. He said he was greatly assisted by his Deputy. Other high-ranking officials in the party would send him emails and seek his opinion. He said he would respond via email or, occasionally, via the phone. He offered to provide the delegate with copies of these emails.

    ·     After returning to Sierra Leone, he took up a new position with [Employer 1] as the Deputy [Unit]Manager. He met the President of Sierra Leone and other high-ranking officials at the party headquarters in the city.

    ·     He became involved in election campaigning from December 2017 to March 2018.  This involved him travelling on Friday nights after work to different cities across Sierra Leone. He would then return to his home on Sunday so as to prepare for the work week ahead. During this time, [Training organisation] did not operate.

    ·     He claimed that [in] March 2018, following the first round of elections, he was attending a private meeting. He parked his car outside and entered into a café type building. As he was leaving this meeting, he was approached by a group of men. These men attacked him, tearing his shirt. He was intimidated. They took his car keys and refused to give them back. A friend who was with the applicant captured the incident on video. The applicant contacted the police who attended the scene. They waited with the applicant by his car and the group of men returned several hours later. They gave the applicant his car keys back. During this time they threatened him, telling him they would ‘come for him when they won the election’. The applicant attempted to play the video for the delegate but it did not load. The applicant stated he would provide a copy of this video to the delegate after the in-person interview.

    ·     He elaborated on the events involving [Ms A], [Ms F] and his two children. He said his neighbour had contacted him the following day and told him of the attack and what he had seen. The applicant explained on several occasions that he had not been in contact with [Ms A] or [Ms F] since the attack and that he was unaware where they were located. He said that [Ms A] did not have a phone and that he did not have her on Facebook. Additionally, the applicant mentioned that he had not been in communication with his parents so as to discover the whereabouts of his children. 

    ·     He claimed that an APC Chairman named Abu Bakar was recently beaten to death. The applicant said he knew the man and was told that he was beaten to death whilst he was standing by his car after it had broken down.

14. During the telephone interview on 18 June 2018, the delegate put to the applicant several concerns including:

    ·     That the applicant when he entered Australia in 2018 wrote on an immigration card at the border that he was a student. The applicant explained this was because in December 2017 he had been accepted into a Master’s degree program at a university in Sierra Leone.

    ·     That the applicant’s APC membership card listed him as a ‘Patron’ and did not include his titles within the party. The applicant explained that he had multiple ID cards and that this was his party membership card.

    ·     That the newspaper article clipping from [Newspaper 1] had a ‘long line’ on the right-hand side of the photo and the pattern on the chair the applicant was sitting on was inconsistent. The delegate suggested these were indications the photo had been tampered with. The applicant stated the photo was identical to the one he had received from a friend in a WhatsApp group.

    ·     That the applicant had offered to provide evidence of email correspondence he had with APC officials during his time in [Country 1] between 2012 and 2016 but had not done so. The applicant offered no explanation as to why he had been unable to provide that evidence to the Department.

    Supporting documents

15. The applicant lodged the following documents with the Department on 10 May 2018 in support of his protection visa application:

    ·     Form 866 Part B ‘Persons included in this application and family composition’ received 10 May 2018;

    ·     Form 866C ‘Personal details for each person included in this application’ received 10 May 2018, which included an attachment by way of further response to question 81 of this form;

    ·     The applicant’s Sierra Leonean passport (reference [Number]) issued [2016] and which expired [2021];

    ·     A letter from [H], [Organisation 1], dated 23 March 2018, specifying the applicant is an ‘official Supporter’ and member of [Organisations 1 and 2]; and

    ·     A photograph of an ‘Observer’ pass to the APC [Conference] held [in] October 2017 at [Venue].

16. The applicant lodged the following documents with the Department on 25 May 2018 in support of his protection visa application:

    ·     Statement of 25 May 2018, the contents of which are summarised above;

    ·     Scanned copy of an APC membership card ([Number]) specifying the holder, [the applicant], is a ‘Patron’ in the [District];

    ·     Scanned copies of the applicant’s [Employer 1] Identification cards (reference [Number]) describing his roles as ‘[Occupation 1]’ and ‘Deputy [Unit] Manager’;

    ·     A photo of an ‘Observer’ pass to the APC [Conference] held [in] October 2017 at [Venue];

    ·     A letter from [H], [Organisation 1], dated 23 March 2018, specifying the applicant is an ‘official Supporter’ and member of [Organisations 1 and 2];

    ·     Evidence supporting the applicant’s claims in relation to harm sustained by his family and targeting of him since he left Sierra Leone:

    o   A pdf image of a broken car window, purported to be the applicant’s car;

    o   A pdf image of papers strewn across a floor in front of cardboard boxes, purportedly taken at the applicant’s apartment;

    o   A pdf image of a woman, purported to be [Ms A], with bandaging above a wound on her right knee and a close up image of that wound;

    o   A pdf image of an undated article written ‘by our correspondent’ and entitled ‘APC [Party official 1] in [Constituency 1] life is under threat’ which the applicant claimed was printed in [Newspaper 1];

    o   A copy of an email from [Mr G’s email address] to [the applicant’s email address] dated 25 May 2018;

    ·     Evidence relating to post-election violence in Sierra Leone:

    o   A headline from Think entitled ‘Sierra Leone Returns to Anarchy’ (issued in 2018, exact date obscured);

    o   A headline from Unique News entitled ‘SLPP starts Power Abuse’ dated 7 May 2018;

    o   A headline from Standard Times entitled ‘Political Harassment, Intimidation and Lawlessness’ dated 12 April 2018;

    o   A pdf image of military personnel;

    o   Various pdf image of injured and tortured persons in Sierra Leone.

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

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

   ·     A letter from Musa Tholley, the Constituency Deputy Secretary General, outlining funeral arrangements for Vincent Lamina Bompe Kanu, a member of the APC, dated 22 January 2014;

   ·     A letter from Musa Tholley, the Constituency Deputy Secretary General, dated 5 July 2015, concerning a ‘bye-election’ for Ward 37 to take place on 24 October 2015 which Mr Ibrahim Charm will contest;.

   ·     A letter from the applicant, dated 12 February 2018, to the Director of Administration for [Employer 1], requesting to be excused from duties to participate in the [Event] between [March] 2018 and [April] 2018;

   ·     A letter from [Employer 1], dated 13 February 2018, excusing the applicant from office duties to participate in the [Event] between [March] 2018 and [April] 2018.

   ·     A memorial poster for a deceased individual;

   ·     The front page of the Sierra Express Media dated 30 May 2018, which includes the headline ‘SLPP beats APC chairman to death’;

   ·     Various video files depicting:

   o   A burial of a zonal chairman and SLPP engaging in violent attacks;

   o   Ernest Bai Koroma (former President) discussing the attacks on APC members;

   o   An SLPP and Military Force attacking an APC member;

   o   An APC member being attacked;

   o   The military attacking an APC member;

   o   SLPP supporters;

   ·     A letter to the applicant from [University] dated 4 January 2018 confirming admission into higher degree programme subject to the applicant’s response by 4 March 2016;

   ·     An academic transcript and letter of attestation for the applicant from [University] for a Bachelor of [Subject 3] entered in October 2007 and completed study in 2011/2012;

   ·     A certificate of course completion from [University, Country 1];

   ·     A copy of the applicant’s flight itinerary detailing that his flight departed Lungi Airport in Freetown at [Time] on [Day 1] March 2018 and arrived in Sydney at [Time] on [Day 2] March 2018.

   Summary of the delegate’s decision

2. On 27 August 2018, the delegate refused the protection visa application as they were not satisfied that the applicant held an adverse profile in Sierra Leone based on his political opinion and support for the APC.

3. The delegate accepted that the applicant was involved in student politics at university. The delegate did not accept that the applicant held the position of [Party official 1] of the [APC]. The delegate found that his explanation of his political involvement from 2007 onwards was very general in nature and lacked detail and was surprising given the applicant’s education to a Master’s level and purported appointment to high level roles within politics. The delegate further found he had drawn, not from his own personal experience and involvement, but from the political process in Sierra Leone generally. The delegate concluded the applicant had embellished the level of his political involvement in Sierra Leone in the hope of strengthening his protection visa claims.

4. With respect to the applicant’s APC membership card, the delegate was concerned the card did not contain a date and lists the holder as a ‘Patron’. The delegate found it unlikely that, if the applicant was long-running Constituency Head, this title would be omitted from the membership card.

5. Additionally, the delegate was not satisfied that whilst the applicant was living and studying in [Country 1] between 2012 and 2016 that he held the position of Constituency Head. The delegate again found the applicant’s evidence to be vague and lacking detail and any evidence to support this claim. The delegate was concerned that despite claiming emails had been sent to him whilst he was in [Country 1] pertaining to the APC, and that he would furnish the Department with copies of those emails, the applicant did not provide them.

6. With respect to the videos depicting, and articles detailing, acts of violence in Sierra Leone and specifically a newspaper article written about him in [Newspaper 1], the delegate expressed concern that the article could have been tampered with and not likely to be a true copy of the original image. The delegate explained that he raised these concerns of tampering with the applicant who explained he had received the images from a friend.

7. In relation to the claimed attack on 16 March 2018, the applicant did not provide the delegate a copy of the video as promised. Therefore, the delegate was not satisfied the incident had occurred.   

8. The delegate also did not accept that the SLPP came in search of him on 5 April 2018, or that they raped his sister and beat his wife. The delegate reached this conclusion because of prior concerns that the applicant had embellished his claims and because the delegate had found that other claims were unsubstantiated.

   Claims and evidence provided to the Tribunal

   The review application and pre-hearing submissions

9. On 4 September 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

10. On 8 February 2021, the applicant appointed a registered migration agent, namely Mr Nathan Willis (MARN 1467692) (the representative), in connection with his review application. 

11. On 1 September 2021, the representative advised the Tribunal that the applicant had changed his address to [Address 1].

12. On 11 January 2023, the Tribunal received a pre-hearing submission and various supporting documents. By way of summary, the pre-hearing submission contained the following claims:

    ·     That the change in government in Sierra Leone on 4 April 2018 resulted in the applicant having an actual and imputed anti-government political opinion due to his involvement with the APC since 2007.

    ·     The applicant was invited to the [Event] in Australia was due to his involvement with the APC.

    ·     The applicant was offered two jobs within [Employer 1] due to his involvement with the APC.

    ·     That the applicant’s relationship with [Ms A] broke down in 2021.  [Ms A] continues to care for their two children [Miss B] and [Master C] in Sierra Leone.

    ·     Since arriving in Australia, the applicant has commenced a relationship with [Ms I], an Australian citizen, and that [Ms I] gave birth to their child, [Master J], on [Date].

13. The following documents were provided to the Tribunal in support of the pre-hearing submission:

    ·     United States Department of State (USDOS) Human Rights Report on Sierra Leone dated 2021;

    ·     USDOS Human Rights Report on Sierra Leone dated 2020;

    ·     Amnesty International 2020-2021 Human Rights Report on Sierra Leone;

    ·     Freedom House, Freedom in the World 2019 Report - Sierra Leone;

    ·     Coco Riko newspaper article by Kabs Kanu, dated 14 January 2020, entitled ‘Blood-thirsty SLPP supporters attack party office, injuring many’;

    ·     Sierra Network article, dated 27 May 2022, containing an APC Press Release dated 23 May 2022;

    ·     Reuters article, dated 10 May 2020, entitled ‘Sierra Leone’s President accuses main opposition party of inciting violence’;

    ·     NSW birth certificate for [Master J], born [Date] in [Hospital] to [Ms I];

    ·     Hearing submission declaration signed by the applicant acknowledging that the representative’s pre-hearing submission had been explained to him and that it accurately represented his claims.

    The hearing: supporting documents and oral evidence

14. The applicant appeared before the Tribunal on 24 January 2023 to give evidence and present arguments. The representative also attended the Tribunal hearing which was conducted with the assistance of an interpreter in the Krio and English languages. 

15. 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.

16. 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 his representative’s presence, that pursuant to section 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.

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

18. The applicant did not provide the Tribunal with any additional supporting documents at hearing and declined the Tribunal’s offer prior to the hearing to take oral evidence from witnesses at hearing.

    Post-hearing submissions

19. On 31 January 2023, the Tribunal received a post-hearing submission and various supporting documents. The representative made various submissions, some of which sought to address the Tribunal’s concerns raised at hearing.  The representative also requested the Tribunal, in the event that the delegate’s decision is affirmed, consider referring the matter to the Department with a recommendation that it be brought to the Minister’s attention for intervention pursuant to section 417 of the Act.  The following evidence provided to the Tribunal in support of the post-hearing submission:

    ·     A copy of the APC Constitution published in the Sierra Leone Gazette on Monday, 7 March 2022 (APC Constitution);

    ·     A copy of an APC receipts booklet, purportedly belonging to the applicant, in support of a claim that the applicant had made financial contributions to the APC party every month between January 2014 and December 2018;

    ·     Five photos of the applicant posing inside a car with a woman, purported to be [Ms A], wearing a red;

    ·     A short video (duration 2 seconds) of the applicant being yelled at by two men, purportedly SLPP members or supporters;

    ·     [Newspaper 2] article entitled, ‘[Title]’, dated 24 November 2017;

    ·     Four receipts from [Training organisation] to the applicant dated, 20 July 2004, 20 December 2009, 21 December 2016 and 1 March 2018;

    ·     A copy of the biodata page of the applicant’s expired Sierra Leone passport (reference [Number]), issued on [2011] and which expired on [2016];

    ·     AAT Migration and Refugee Division Guidelines on Vulnerable Persons[1] (Vulnerability Guidelines);

    ·     UNHCR Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process[2] (Guidance Note);

    ·     NSW Birth Certificate for [Master J];

    ·     A pdf document of 31 pages containing photos of the applicant with [Ms I];

    ·     A pdf document of 33 pages containing photos of the applicant with [Master J];

    ·     A copy of an email from [Charity] to the applicant thanking him for being a [supporter].

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

    [2] UNHCR, Regional Re[presentation in Canberra, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process (November 2017)

20. On 1 February 2023, the Tribunal received two statutory declarations. The first statutory declaration was from [Mr K], while the second was from [Mr L]. Both were dated 30 January 2023 and related to the applicant’s relationship with [Ms I]. The representative submitted to the Tribunal that these documents were relevant to the request for ministerial intervention.

21. On 6 February 2023, the Tribunal received copies of NSW Drivers Licences and Photo ID Cards for the applicant and [Ms I].  The representative submitted that these documents supported the claim that the applicant and [Ms I] reside at the same address - [Address 2].

22. Where relevant, the representative’s post-hearing submissions are addressed in the Tribunal’s findings and reasons below. 

    CONSIDERATION OF CLAIMS AND EVIDENCE: Analysis, findings and reasons

    Nationality: Country of Reference / Receiving Country

23. The applicant claims to be a citizen of Sierra Leone and provided to the Department a copy of his Sierra Leonean passport issued [in] 2016. 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. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.

    Credibility

24. Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[3]  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.

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

25. 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.[4]  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.

    [4] 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

26. 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.

27. 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.[5]   A similar approach is taken in the Department’s Refugee Law Guidelines[6]  and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[7] which provides useful guidance for this Tribunal.

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

    [6] 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)

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

28. 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’.[8] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[9] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[10]

    [8] 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

    [10] 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.’

29. 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 lapse of time or other reasons.[11] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[12] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

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

    [12] Ibid

30. 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.[13]  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.[14]

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

    [14] 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

1. 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.[15]  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.[16] 

   [15] 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

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

2. In the present case, the Tribunal takes into account the applicant’s evident lack of familiarity with the Tribunal setting and his limited English language proficiency.  With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.

3. The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility.  However, when the evidence set out here, some of it on critical matters, is considered cumulatively, the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.

4. The Tribunal notes the representative’s post-hearing submission that any inconsistences in the applicant’s evidence can be explained by his ‘vulnerability and the impact of the trauma he experienced’.  In support of that submission, the representative drew the Tribunal’s attention to specific paragraphs in the Vulnerability Guidelines and the Guidance Note.  The Tribunal notes that any concerns in relation to the applicant’s vulnerability impacting upon his ability to participate in the review process were not raised prior to the hearing.  The Tribunal also notes that the applicant did not avail himself of the opportunity to have a support person present to assist him during the hearing as provided for in paragraph 28 of the Vulnerability Guidelines.  In the hearing invitation response form that was lodged with the Tribunal by the representative on 23 December 2022, the applicant answered ‘No’ to the following question:

   Is there any issue that may affect your ability, or that of any other person
   participating, to take part in the hearing (e.g. a health problem or disability)?

5. Furthermore, the Tribunal notes that there is no evidence before it, such as medical or other expert evidence,[17] to indicate that the applicant’s capacity to participate in the review process would be, or has been, affected by any of the factors expressed in paragraph 7 of the Vulnerability Guidelines or in any other way. Nevertheless, the Tribunal has had regard to Vulnerability Guidelines and the Guidance Note and is cognisant of the fact that an applicant’s capacity to give oral evidence in the hearing context may be impaired and that experiences of trauma may impact upon an applicant’s ability to participate in the hearing. Based upon its interactions with the applicant at hearing, the Tribunal observed that the applicant appeared somewhat disengaged at times when he yawned. At other times, he gave indirect responses to questions. In these instances, the Tribunal revisited those questions by paraphrasing and repeating them or otherwise affording the applicant other opportunities to present relevant evidence in support of his claims, including by way of allowing the lodgment of further documentary evidence after the hearing, so as to allow him a meaningful opportunity to participate in the review process.

   [17] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018), para. 34

6. The Tribunal has formed the impression that the applicant’s protection claims drew on incidents and experiences that he had in Sierra Leone, but that he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection.  It is also concerned that the applicant has fabricated or embellished a number of his protection claims. The Tribunal’s full assessment follows.

   Independent information

7. In March 2018, the opposition SLPP candidate, Julius Maada Bio, won the presidential election in a second-round run-off. In the 2018 parliamentary election, the APC retained its majority in parliament. Following a High Court decision in May 2019 to remove 10 APC members of parliament for allegedly violating electoral laws during the election campaign, and replace them with nine SLPP members, with the tenth to be chosen through a by-election, the SLPP became the largest party in parliament. In March 2021, following a by-election, the SLPP held 59 seats in parliament and the APC 58 held seats. In June 2021, it was reported that the SLPP may have lost its majority in parliament after the National Electoral Commission declared an SLPP Member of Parliament the newly elected Paramount Chief of Sambaia Chiefdom.[18]

   [18] 'Sierra Leone: 20211008163242 - Political Situation - Political Parties - Violence - Sierra Leone People's Party (SLPP) - All People’s Congress (APC) - Activists - Journalists - Poro Society - Recruitment - Athletes Overstaying Abroad - Tribal Affiliations', Country of Origin Information Services Section (COISS), 19 November 2021, 20211123103128

8. The USDOS report on human rights practices in Sierra Leone for 2020 states that ‘Sierra Leone is a constitutional republic with a directly elected president and a unicameral legislature’.[19] The report continues:

   In March 2018 the opposition Sierra Leone People’s Party [SLPP] candidate, Julius Maada Bio, won the presidential elections. In January 2018 parliamentary elections, the All People’s Congress [APC] won a plurality of the seats. After the December 12 election re-run and by-elections, the Sierra Leone People’s Party and the All People’s Congress each held 58 seats. Observers found these elections to be largely free and fair.[20]

   [19] 'Country Reports on Human Rights Practices for 2020 - Sierra Leone', US Department of State, 30 March 2021, Executive Summary, p.1, 20210409135837

   [20] Ibid

9. Other credible sources also reported on the assessment that the elections were found to be largely free and fair, for example, the 2021 Freedom House report[21] and the BTI 2020 country report on Sierra Leone.[22] The BTI report also indicated, however, that in mobilising the electorate, ‘both parties resorted to exploiting existing ethno-regional divides within the country… As in the past, political mass support was generated by accentuating ethnicity rather than presenting competing political visions and programs. This resulted in the deepening of societal antagonisms and contravened the peace consolidation processes’.[23]

   [21] 'Freedom in the World 2021 - Sierra Leone', Freedom House, 2021, A1, pp.2-3, 20211001084356

   [22] ‘BTI 2020 Country Report Sierra Leone', Bertelsmann Stiftung, 29 April 2020, p.3, 20200430165835

   [23] Ibid

10. The BTI report further states that ‘[o]rganized violence remained at a fairly low level during the review period [from 1 February 2017 to 31 January 2019], but the potential for mass violence remains high’. Antagonism between the APC and the SLPP had ‘led to violent clashes in the run-up to the general elections in March 2018. This was not unexpected. Despite an agreement to prevent violence between supporters of each party, signed by both parties in 2009, their radicalized youth organizations are prone to the use of violence’.[24]

    [24] Ibid, p.25

11. An April 2018 article in The Economist refers to ‘[t]ensions based on ethnic, political and regional divisions’ simmering throughout the 2018 election campaign. When the result was announced, ‘[s]upporters of Mr Bio’s Sierra Leone People’s Party (SLPP) attacked followers of the APC, which previously held the presidency. Much of the violence’ had ‘taken place in the SLPP’s southern strongholds. But more than 100 people’ had ‘also fled Kono, a volatile swing state in the east’.[25]

    [25] ‘A little hope in Sierra Leone - Sierra Leone’s new president has made big promises’, The Economist, 14 April 2018, 20211116182555

12. A number of by-elections have been held since the March 2018 elections, helping the SLPP consolidate its power.[26] The practice of importing groups of youths/thugs to intimidate and harass communities prior to by-elections has occurred in recent years. Publicly, the APC and SLPP tend to blame incidents of low-level violence on each other.[27]

    [26] ‘Sierra Leone: How the SLPP took power. And then took some more’, L Enria, J Hitchen, African Arguments, 28 October 2019, 20211118133107; ‘The new government’s tense struggle for control a year on’, K De Bruijne, African Arguments, 18 April 2019, 20211116075802

    [27] ‘President Bio's Allegation Dismays APC, Calls for Peace and Justice’, Concord Times, 13 May 2020, 20220317150919

13. The USDOS report on human rights practices in Sierra Leone for 2020 indicates that the non-governmental organisation (NGO) the Center for Accountability and Rule of Law, reported there were clashes in Freetown between supporters of the APC and SLPP in January 2020. In an incident on 27 January 2020, ‘27 persons were reportedly wounded. Police arrested 19 persons after the clash; all were later released on bail’.[28]

    [28] 'Country Reports on Human Rights Practices for 2020 - Sierra Leone', US Department of State, 30 March 2021, Section 3, p.13, 20210409135837

14. A July 2020 US Overseas Security Advisory Council crime and safety report on Sierra Leone states that ‘[p]olitical violence is sporadic and normally increases during election periods’. The report also states that ‘[p]olitical demonstrations and rallies are generally peaceful, but sporadic clashes do occur, often instigated by individuals within the crowds. Participants at political rallies are easily incited and may use weapons of opportunity, including sticks and rocks. Strong rivalries exist in Sierra Leone; participants at large demonstrations can become aggressive toward one another and the police. The police deploy crowd-control techniques, including the firing of warning shots and use of tear gas’.[29]

    [29] 'Sierra Leone 2020 Crime & Safety Report', Overseas Security Advisory Council (OSAC), 4 July 2020, 20210924101412

15. An October 2019 article from African Arguments indicates that in the 18 months since the general election, Sierra Leone had held by-elections that had ‘been marred by political violence and accusations of malpractice’. The article refers to the comments of Marcella Samba-Sesay from the Campaign for Good Governance, who said that by-elections in Sierra Leone had ‘become battlegrounds for “a [wider] fight between the APC and SLPP that permeates every space in society, including state institutions”’.[30]

    [30] ‘Sierra Leone: How the SLPP took power. And then took some more.’, Enria, L & Hitchen, J, African Arguments, 28 October 2019, 20211118133107

16. In May 2020, it was reported that over the previous few weeks, sporadic violent clashes had occurred in parts of Sierra Leone, ‘leaving over a dozen people dead, many hospitalised and property destroyed. Reasons for this unrest are unknown but have been widely attributed to coronavirus restrictions’. In an address to the nation, ‘President Bio accused the main opposition, All Peoples Congress (APC), of aiding and abetting the violence by financing, planning and inciting crimes he labelled as “terrorist attacks”’.[31] The government said the unrest was ‘part of a calculated plot by the APC to fulfil a threat by its defeated candidate in 2018 elections to make the country ungovernable’.[32] The APC denied the accusations.[33]

    [31] 'Covid-19 restrictions give rise to political tensions in Sierra Leone', Mail and Guardian Online (South Africa), 18 May 2020, 20200616121306

    [32] 'Sierra Leone president accuses opposition of 'terrorizing' state', Daily Nation - Kenya, 9 May 2020, 20200511104901

    [33] 'Sierra Leone's president accuses main opposition party of inciting violence', Reuters, 10 May 2020, 20200619104919

17. Observers said ‘that accusing the main opposition in such strong terms’ would ‘only aggravate the political tension’ that had ‘been brewing’. This came ‘off the back of the arrests and detention of high profile former ministers in the APC administration’, including ‘Alfred Paolo Conteh, a retired major and former minister of defence, who was accused of treason as well as possession of undeclared weapons. Another arrestee is Sylvia Olayinka Blyden, a journalist and politician who served as former minister of social welfare, gender and children’s affairs, who was arrested for incitement and subversion, according to the Sierra Leone Police’.[34]

    [34] 'Covid-19 restrictions give rise to political tensions in Sierra Leone', Mail and Guardian Online (South Africa), 18 May 2020, 20200616121306

18. Media articles indicate that the SLPP and APC tend to blame politically motivated violence on each other.[35]

    [35] See for example, Sierra Leone's president accuses main opposition party of inciting violence’, Reuters, 10 May 2020, 20220317144122, President Bio's Allegation Dismays APC, Calls for Peace and Justice’, Concord Times, 13 May 2020, 20220317150919

19. In its February 2022 country report on Sierra Leone, Bertelsmann Stiftung indicates that there are ongoing risks of violence surrounding elections when parties appeal to ethno-regional divide (tribalism), which is typical.[36] The report notes that this risk extends to by-elections and re-run elections, and that: ‘A number of by-elections, re-run elections and paramount chieftaincy elections took place during the reporting period and more are scheduled for 2021. In a hotly contested by-election in Constituency 110, Freetown Peninsula, in December 2020, which was overshadowed by violence and allegations of fraud, the APC candidate won.’[37]

    [36] ‘BTI 2022 Country Report - Sierra Leone', Bertelsmann Stiftung, 22 February 2022, p.9, 20220301124010

    [37] Ibid, p.10

20. Bertelsmann Stiftung reports that ‘[i]mpoverished youth are particularly prone to political indoctrination and instrumentalization’ and that an ‘enduring lack of socioeconomic opportunities may tempt desperate young men to resort to violence’.[38]

    [38] Ibid, p.35

21. The Armed Conflict Location and Event Data Project (ACLED) considered the prevalence of political violence in Sierra Leone since the end of the civil war 20 years earlier, finding that political violence had increased since 2014/15:

    By early 2020 Sierra Leone found itself at levels of political violence that were higher than at any time since the end of the war. Some months in 2018 and 2019 show levels of political violence that are comparable with periods during the civil war.[39]

    [39] ACLED, When Emerging Democracies Breed Violence – Sierra Leone 20 years after the civil war, 2020, available at: ndael_WANEP-SL_2020webpub.pdf, p.10

22. ACLED reports that official security forces, militias and members of the SLPP and APC are active perpetrators of political violence in Sierra Leone:

    The second most active group are official security forces, most notably police and military forces, including various branches such as the Presidential Guard and the Operational Support Division (OSD). From the data, it is clear that the police forces are more involved than the military in violence. Police are particularly responsible for most violence against civilians events since the end of 2017. Both the larger share of police activity vis-à-vis the military, as well as their overall involvement in violence against civilians, is roughly comparable with other countries in the sub-region.

    A third category of perpetrators are militias and members of the SLPP and APC. It is an open secret that both the SLPP and APC have well-developed security outfits orbiting both parties since at least since 2007, when high-ranking commanders from all former warring factions were recruited into political parties. Party militias are divided into various branches. Ex- combatant commanders generally are on top of the hierarchy, serve as close protection units to party leaders, and run paid and relatively professional party intelligence systems. Next to them are semi-institutionalized militias around the party offices, headed by some notorious leaders who are directly deployable when needed. Orbiting around these militias are large groups of party supporters, more or less experienced in using violence, who move in and out of these semi-institutionalized militias and can be called upon in times of need. Finally, there are specific groups to each party that in varying degrees can control violence. The SLPP has, in addition to its militias, a very large defensive and well-organized structure called the “Benghazi Unit” or “Party Marshalls.” This structure has a presence throughout the country and consists of older ex-combatants, among others.[40]

    [40] Ibid, pp.15–16

23. By way of recent example of the political violence in Sierra Leone, on 10 August 2022, a protest about the cost of living spiralled into deadly clashes between security forces and young men calling for President Bio to resign. Violence erupted and official reports indicate that 27 civilians and six police officers were killed. In the days following the protest, police conducted raids on ‘hideouts for perpetrators’. According to police, during one such raid in Makeni, Hassan Dumbuya (also known as Evangelist Samson) was killed in crossfire. Hassan Dumbuya was a prominent APC member and social media influencer and the APC has called for an independent probe into his death.[41]

    [41] Department of Home Affairs, Standard Q & A Report, Sierra Leone: 20221111104133 – Political Violence (6 December 2022)

    Assessment of claims

24. At hearing, the applicant stated that he fears for his life if he returns to Sierra Leone.  He felt that SLPP supporters and the SLPP government will harass, beat and kill him if he returns to Sierra Leone.  He believes that he will be targeted because he is well-known, particularly in his constituency and more widely in the eastern region of Freetown where he is popular and influential among the youth due to his profile as an APC leader and campaigner.

25. During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in Sierra Leone, his migration history, the problems he experienced in Sierra Leone and why he fears returning there. On the available evidence, the Tribunal accepts that the applicant is [Age] years old, of [Ethnic group] and [Religion]. 

    Profile as an APC member, leader, supporter and campaigner

26. In determining whether the applicant would suffer persecution involving serious harm on return to Sierra Leone due to of his profile as an APC leader, member, supporter and campaigner, the Tribunal has considered the applicant’s evidence in relation to his membership of the party, him having held APC leadership positions and his activities in support of the APC such as campaigning. 

27. According to the APC Constitution provided by the applicant to the Tribunal, Article 11 specifies the four classes of membership as follows:

    ARTICLE 11: CLASSES OF MEMBERSHIP

    a. There shall be four classes of membership:

    I. Honorary Foundation;

    II. Patron;

    III. Honorary Executive;

    IV. Ordinary.

    b. Honorary Foundation members are highly distinguished members of the Party who have served the Country and the Party at the highest levels as Presidents, Vice Presidents, Speakers and Leaders of Parliament, National and Deputy Chairmen and National Secretary Generals of the Party and holders of such other offices as may be determined by the National Secretariat, subject to the approval of the National Advisory Committee. Such persons must apply for such membership in a prescribed form and pay the requisite fee.

    c. Patron members are those members who undertake to contribute to the Party's funds at a much higher level than the Honorary Executive members. They may be called upon from time to time to raise funds for the Party. They shall apply for such membership in a prescribed form and pay the requisite fee.

    d. Honorary Executive members are those members who choose to contribute funds to the Party at a much higher level than the Ordinary members. They shall apply for such membership in a prescribed form and pay the requisite fee

    e. Ordinary membership is open to every Sierra Leonean who has attained the age of eighteen, applies for such membership in a prescribed form and pays the requisite fee.

    f. All applicants for membership into any category of the Party must fulfil the qualification criteria set out in Article 9 above.

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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