1827173 (Refugee)

1827173 (Refugee) [2024] AATA 4474 (30 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Shamili Kugathas
CASE NUMBER:  1827173
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:L Symons
DATE:30 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 30 June 2024 at 4:44pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion – All Peoples Congress (APC) member – threats of harm by ruling Sierra Leone People’s Party (SLPP) – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 August 2018 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sierra Leone, arrived in Australia on [date] March 2018 as the holder of a [Temporary] visa. This visa ceased on 15 May 2018.
On 9 May 2018, the applicant applied to the Department of Immigration (the Department) for a Protection (Class XA) (Subclass 866) visa. On 10 May 2018, he was granted an associated Bridging visa. On 31 August 2018, the Department refused to grant him the Protection visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 17 September 2018, he applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 31 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The applicant was represented in relation to the review by his legal practitioner, Ms Shamili Kugathas, who attended the hearing.
The hearing was adjourned to 6 September 2023. The applicant appeared before the Tribunal on 6 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The applicant was represented in relation to the review by his legal practitioner, Ms Shamili Kugathas, who attended the hearing.
The issue that arises on review is whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He was born in [a] village, Bombali district in northern Sierra Leone on [date]. He is a citizen of Sierra Leone.
·He and his family are strong supporters of the All Peoples Congress (APC) political party. His [Relative A] was a candidate for the APC and he was [an Occupation 1] during the election period. During the elections, there were serious confrontations between the two main political parties being the APC and the Sierra Leone People’s Party (SLPP).
·During the election campaign, supporters of the SLPP attacked him and other members in a meeting hosted in his community and there was a serious fight between them. He was threatened with harm by SLPP supporters if the SLPP won the election.
·He came to Australia on [date] March 2018 as [an Occupation 2] to attend [Event 1]. He was [an Occupation 2 representing Sierra Leone]. He had never travelled to any country in the past.
·The APC lost the election to the SLPP. Afterwards, SLPP supporters went on to beat and kill APC supporters as well as burn properties of APC members. Fortunately, he and the [other Sierra Leone representatives] were already in Australia before the election result was announced. He found out that they went to his house and arrested two of his family members who are currently in prison. His wife and children are in hiding. He has a voicemail of a threat received at home if he returns to Sierra Leone. He has regular telephone calls with his cousin who warned him that it is too dangerous to return.
·This is happening to all the popular members of the previous APC government and he is one of the wanted men. If he returns, he will be arrested and killed by the ruling SLPP government.
·He fears that he will be arrested and tortured to death if he returns to Sierra Leone because he is known as a strong and active member of the APC. He is known by the SLPP because he took an active role during the election.
·He did not seek help before the election because he was hoping and confident that the APC would win. However, now that the SLPP have won, the chance they will harm or kill him has increased.
·The authorities will not protect him because he is not a supporter of the ruling party.
·He cannot relocate because the supporters of the SLPP are everywhere in the country and he cannot hide. Further, he cannot relocate to another country because he does not have a valid visa to enter and these countries are human rights abusers.
The applicant attended an interview with the Department on 31 May 2018. During that interview, he reiterated and expanded on his written claims and made new claims. His evidence is summarised as follows:
- His wife and [children] used to live in Freetown but he does not know where they are now as some people went to the house during the election and they ran from the house. He has [siblings] living in [Area 1] in Freetown. [Another sibling] also lives in [Area 1]. His mother, with whom he used to live in [named] Street, Freetown, now lives with his [sibling] in [Area 1].
- He will be arrested and beaten to death if he returns to Sierra Leone. This is because he was his [Relative A]’s [Occupation 1] and campaigned with his [Relative A] during the election. People from the opposition party said they will beat him if they gain power. His [Relative A]'s name is [Mr A] and he was [a prominent candidate]. His [Relative A] is currently in Parliament.
- He joined the APC in 2012. He was an ordinary executive member of the Youth Wing. He joined because he loved the party. As he was growing up, he saw the party brought a lot of development to the country.
- As an ordinary member of the Youth Wing, he would sometimes drive people to different areas for activities. During the election, his main role was as the [Occupation 1] for his [Relative A] and the campaign team.
- During the election campaign, the two main parties met each other at the same location on one occasion. There was confusion and chaos and he was attacked by SLPP supporters. He did not know them. They encountered these clashes with SLPP supporters in different districts where they were campaigning. The two parties usually verbally abused each other.
- Apart from clashes during campaigning, at a certain meeting some people told him that if the APC loses, they will beat and kill him. All the APC supporters were being threatened by SLPP members. He does not know them or their names.
- The SLPP members went to his house and forced his family to run from their house. He thinks SLPP members followed him and found out where he lived. He does not know when they followed him.
- After the election result was announced, when he was in Australia, he was told that some people went to attack his house. Someone informed his wife, however, that they were coming so she managed to escape from the house.
- He did not plan to stay in Australia when he came here but based on what has happened since the election, anyone could harm him and nothing will happen (to them).
The applicant provided the Department with the bio data page of his Sierra Leone passport which was issued on [date] 2013 and was valid until [2018], a copy of his Sierra Leone driver’s license which was valid until [2020], [an official ID] for [Event 1], a Sierra Leone voter ID card and the notification and notice of grant of a [Temporary] visa dated 20 February 2018.
The Department refused the applicant’s application for a Protection visa on 31 August 2018 as the delegate was not satisfied that he is a person in respect of whom Australia has protection obligations.
The applicant has filed with the Tribunal a copy of the delegate’s Decision Record dated 31 August 2018, a letter of support dated 21 August 2023 from [Mr B], a letter of support dated 21 August 2023 from [Mr C], [Position 1] of APC Australia, a letter of support dated 15 August 2023 from [Mr D], [Position 2] of the APC, an undated letter of support from [Mr A] , a statement by him dated 18 August 2023 and photographs of him and others at a protest outside Parliament House in Canberra.
The applicant’s lawyer filed pre-hearing and post-hearing submissions with the Tribunal. The applicant requested and was granted further time after the second hearing to provide additional evidence. The Tribunal received a photograph from [a social media] page dated 7 August.
Receiving Country
The applicant claims to be a citizen of Sierra Leone and has provided a copy of his Sierra Leone passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Sierra Leone. The Tribunal finds that Sierra Leone is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Third Country Protection
The Tribunal finds that the applicant is outside his country of nationality. During the hearing, he gave evidence that he does not have the right to live in any other country. The Tribunal notes that Sierra Leone is a member of the Economic Community of West African States (ECOWAS). In view of the Tribunal’s credibility findings below, the Tribunal has not considered s.36(3) of the Act.
Assessment of Claims
The applicant gave evidence that his application for a Protection visa was prepared by someone at [Organisation 1]. He prepared his Statement of Claims. The information in his Statement of Claims is true and correct. He is satisfied that it is accurate and complete.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Sierra Leone, his involvement in politics, why he left Sierra Leone and why he now fears returning to Sierra Leone. The Tribunal found aspects of his evidence to be implausible and unconvincing. There were several inconsistencies in his evidence. He made new claims throughout the process. The Tribunal formed the view that he was fabricating some of his evidence as he was giving it. His conduct in Sierra Leone and in Australia was not consistent with his claims. The Tribunal finds that he is not a credible or reliable witness for the following reasons:
First, in his Statement of Claims, the applicant claimed that he and his family are strong supporters of the APC. He claimed that his [Relative A], [Mr A] , was a candidate for the APC and he was [an Occupation 1] during the election period. He did not claim to be a member or officer holder in the APC. He has filed with the Tribunal a copy of the Department’s Decision Record dated 31 August 2018 which indicates that during his interview with the Department he made new claims that he joined the APC in 2012 and was an ordinary executive member of the Youth Wing. He claimed that, as an ordinary member of the Youth Wing, he would sometimes drive people to different areas for activities.
The applicant filed with the Tribunal a statement dated 18 August 2023. In that statement, he made more new claims in relation to his involvement with the APC. He claimed that he [accompanied Relative A]’s campaign team to party events and meetings in different districts and he participated in election campaigning which brought him to the adverse interest of the SLPP supporters and members. He claimed that he carried out a number of campaign activities including speaking on a megaphone, organising door to door visits, putting up posters around the community and attending events where he promoted the APC.
During the first hearing, the Tribunal discussed with the applicant his involvement with the APC. He gave evidence that he became a member of the APC in 2012 and has a Membership Card. When asked to describe the Youth Wing, he responded that it is there to assist the party and the elderly. When asked why he became a member of the Youth Wing, he responded that he was young and could gain experience to be able to work and help “senior ones”. When asked whether he held any position in the Youth Wing, he responded that he was an ordinary member.
The Tribunal asked the applicant what he did as a member of the Youth Wing. He responded that he made financial contributions and accompanied seniors when they were campaigning. He later stated that, as a member of the Youth Wing, he spoke to people to convince them to join the party. When asked what he did during the APC 2018 election campaign, he responded that he spoke to people to convince them to register and vote for the APC. He told them that the party had sympathy for the general population and would assist people. He sometimes used a megaphone.
The Tribunal asked the applicant whether he did anything else and he responded that he accompanied his [Relative A] on campaign trips. He drove supporters to different places during the campaign. He did this on a voluntary basis and sometimes his [Relative A] gave him tips. When asked how he was able to do this when he had a job as a [Occupation 1], he responded that he was doing [specified work] and it was not a regular job.
The Tribunal asked the applicant how he was able to support himself, his wife and their [children] if he was not doing a regular job. He responded that he did not waste money and used the money he got to educate his children. When asked what he did during the times he had no money, he responded that they have magic in Africa and he went to his [Relative A] who gave him money. When asked the period during which his [Relative A] campaigned, he responded that he started in January 2017 for the 2108 election. He later stated that the official election campaign was declared in August or September 2017.
The applicant stated that his wife, mother, [and siblings] voted for the APC. They are not members of the APC just supporters. When asked whether he voted in elections, he responded that he voted in 2007, 2012 and the first round in 2018. He was in Australia and did not vote in the runoff election in 2018. When asked about voting at the Sierra Leone Embassy in Australia, he responded that he did not know if he could have voted at the Embassy.
The Tribunal has a number of concerns in relation to the applicant’s evidence. Firstly, his claims have changed over time from being a supporter of the APC to being an ordinary member of the Youth Wing of the APC to being an executive member in the Youth Wing of the APC and from being someone who was a [Occupation 1] to being a campaigner. Secondly, his description of the activities he was involved in on behalf of the APC in his statement dated 18 August 2023 is not consistent with his oral evidence to the Tribunal.
Thirdly, the applicant made a new claim during the first hearing that after he joined the APC in 2012 he made financial contributions to the party. According to his application for a Protection visa, he was unemployed from the time he left school until September 2016 when he became a self-employed [Occupation 1]. During the first hearing, he initially gave evidence that he was employed as a [Occupation 1] and did that job from 2007 until he left Sierra Leone in March 2018. He later stated that stated that his job as a [Occupation 1] was not a regular job and he asked his [Relative A] for money when he did not have money. If he was not in a regular job, as he later claimed, it is implausible that he would have made financial contributions to the APC whilst he was unemployed and even after he started working.
Fourthly, the applicant gave evidence that he spent 60% of his time doing political work and 40% of his time [playing sport]. This is implausible as it would have left him with no time to work and support himself, his wife and his children.
Fifthly, if the applicant was a member of the Youth Wing of the APC since 2012, had assisted his [Relative A] during his election campaign, had actively campaigned for the APC during the 2017 election, had voted for the APC in elections held in 2007, 2012 and the first round of elections in 2018, the Tribunal would expect him to have made some inquiries with the Sierra Leone Embassy in Australia to ascertain whether he could vote in the runoff election in 2018 at the Sierra Leone Embassy in Australia as this would have been the most effective way in which he could have supported the APC while in Australia. However, he did not do so.

These issues raise concerns in relation to the extent of the applicant’s involvement in the APC and in particular his involvement in the 2018 election campaign. The Tribunal raised these issues with him and its concerns in relation to the credibility of his claims. He responded that he was an honorary member. When asked what he meant by being an honorary member, he responded that he was an executive member. He cannot tell lies and the party will not tell lies for him. His response does not address the issue raised with him or alleviate the Tribunal’s concerns in relation to his credibility and the veracity of his claims.
Second, in his Statement of Claims, the applicant claimed that during the elections there were serious confrontations between the two main political parties being the APC and the SLPP. Supporters of the SLPP attacked him and other members at a meeting hosted in his community and there was a serious fight between them. He was threatened with harm by SLPP supporters if the SLPP won the election.
The applicant filed with the Tribunal a statement dated 18 August 2023. In that statement, he claimed that he was involved in numerous clashes with SLPP supporters, was attacked by them and threatened that if the APC lost the election he would be arrested and killed. During the first hearing, the Tribunal discussed these claims with him. He stated that they went to certain areas during the election campaign where people made threatening remarks to them such as threatening to beat them or kill them if they lost the election. He referred to one incident when they visited Kenema and were leaving when they were stopped at a check point where people blocked the way. When they found out that they were APC supporters, they tried to attack them but they escaped. He then referred to an earlier incident when a family member of then Presidential candidate Bio threatened that he would be the first person to attack APC supporters before they attacked him. He was with two colleagues and there were ten or more SLPP supporters who rushed at them with sticks but they managed to escape.
The Tribunal asked the applicant how many times he was threatened. He responded that he was threatened on a daily basis. He then said it was not every day. At times when they were campaigning they heard threatening remarks particularly when he was with his [Relative A]. When asked how many times he was physically attacked, he responded more than ten times. He then said up to ten times. He was even slapped and someone threw urine at him. When asked whether he reported the threats and attacks to the Police, he responded that he did but they did not take it seriously. In 2017, he went to the Police more than four or five times. In 2018, when he went to the Police they did not take it seriously and asked him if his [Relative A] would not protect him. His claims in relation to the Police are new claims. Made for the first time during the hearing.
The Tribunal asked the applicant whether he suffered any injuries when physically attacked. He responded that there was one occasion when he jumped, hurt his knee and his knee was swollen. On another occasion, they threw a stone and he had a bump on his head. They slapped him and his eyes became red like blood. When asked if he sought medical treatment for any of his injuries, he responded that he did not. In Africa, they treat themselves. His [Relative A] gave him money to go to the hospital but he did not go.
The Tribunal has a number of concerns in relation to the applicant’s evidence. Firstly, his claims in relation to problems with SLPP supporters have changed over time from there being one incident when SLPP supporters attacked him and other APC supporters at a meeting in the community to there being several clashes with SLPP supporters when they were attacked and threatened to there being up to ten physical assaults. Even in his oral evidence to the Tribunal, he initially stated that he was physically assaulted more than ten times and then changed his evidence and stated that it was up to ten times.
Secondly, in his oral evidence to the Tribunal the applicant was unable to provide a consistent account of events. For instance, he initially stated that he was threatened on a daily basis. He then said it was not every day. He then said it only happened at times when they were campaigning, particularly when he was with his [Relative A], that they heard threatening remarks. Thirdly, his claims that he was able to escape when attacked are implausible particularly in circumstances where he was outnumbered and his opponents were armed.
Fourthly, the applicant’s claims in relation to being injured during the attacks are new claims made for the first time during the hearing. Further, his new claim that his [Relative A] gave him money to go to hospital for medical treatment for an injury he suffered are implausible in light of his evidence that the injuries he suffered were a swollen knee when he jumped and hurt himself, a bump on his head when someone threw a stone at him and his eyes becoming bloodshot when someone slapped him, particularly in view of his evidence that in Africa people do not seek medical treatment for injuries and treat themselves.
Fifthly, in his application for a Protection visa, the applicant answered ‘no’ to question 79 which asked whether he sought help in Sierra Leone after he was harmed. This is not consistent with his new claims to the Tribunal that in 2017 he went to the Police more than four or five times and in 2018 he went to the Police but the Police did not take it seriously.
The Tribunal raised as issues with the applicant the changes in his evidence in relation to the problems he had with SLPP supporters and members particularly during the 2018 election campaign and the new claims he has made, in this regard, throughout the proceedings. He responded that when he spoke to the Department he did not go into detail. He answered the questions he was asked. It was not possible to be attacked only once. He was attacked on several occasions. He was attacked ten times or more.
The Tribunal noted that the applicant had provided written statements to the Department and the Tribunal. The Tribunal noted that, if he was attacked ten times or more, he would have said so to both the Department and the Tribunal. He responded that, in his written statement to the Department, he said he was attacked but that does not mean that he was only attacked once. He said he was a [Occupation 1] and when he was with his [Relative A] he was [working] as well. He was also involved in politics. He went to some areas where he spoke. He questioned why threatening remarks were made against him at [the district that his Relative A represented]. He was involved and he was there. Politics was taking more of his time than [sport] during the election campaign. At the same time, he was still [working as an Occupation 1]. When going to campaign (events) he was [working] in the campaign.
The Tribunal raised as an issue with the applicant the fact that his application for a Protection visa had a specific question in relation to whether he sought help in Sierra Leone after being harmed and he made no mention of going to the Police. The Tribunal noted that, in his detailed written statement to the Tribunal, he made no mention of going to the Police in Sierra Leone to seek protection. However, during the first hearing, he made new claims about going to the Police more than four or five times in 2017 and in 2018 to seek protection and the Police did not take it seriously. The Tribunal noted that these new claims were made more than 5 years after he filed his application for a Protection visa.
The applicant responded that he cannot tell lies. He did go to the Police. He cannot tell lies. He answered the questions he was asked during his interview with the Department. The Tribunal reminded him that it was referring to his answer to a specific question in his application for a Protection visa. He responded that he was probably not asked that question. If it was asked, he would have answered. The Tribunal stated that it had difficulty accepting his response when the specific question was asked and answered. He responded that he cannot tell lies. There are certain things when asked cannot be initially remembered.
The Tribunal does not accept the applicant’s explanation for a number of reasons. Firstly, whilst it is possible that memory fades over time, the Tribunal considers that seeking protection from the Police on more than four or five occasions in 2017 and again in 2018 and not receiving it is significant and not something that he was likely to forget particularly when preparing a written application to seek protection in Australia and answering a specific question about whether he sought protection from the authorities (in Sierra Leone). Secondly, these alleged events took place in 2017 and 2018 and he completed his application for a Protection visa on 30 April 2018. The Tribunal considers that his memory of these events would have been better in April 2018 than it would have been in 2023.
Thirdly, in his application for a Protection visa, the applicant specifically claimed that he did not seek help before the election because he was hoping and confident that the APC would win. This directly contradicts his new claims that he sought help from the Police more than four or five times in 2017 and again in 2018 and the Police did not take it seriously. Fourthly, even if he had forgotten that he sought protection from the Police in 2017 and 2018 at the time he prepared his application for a Protection visa and recalled it later, the Tribunal would expect him to have referred to the new claims about seeking Police protection in his written statement, which was prepared by his lawyer, and filed with the Tribunal shortly before the first hearing but he did not.
These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.
Third, in his application for a Protection visa the applicant claimed that after the APC lost the election to the SLPP, SLPP supporters went on to beat and kill APC supporters as well as burn properties of APC members. Fortunately, he was already in Australia before the election result was announced. He found out that they went to his house and arrested two of his family members who are currently in prison. His wife and children are in hiding.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 31 August 2018. It indicates that during his interview with the Department on 31 May 2018 he claimed that his wife and [children] used to live in Freetown. He does not know where they are now as people went to his house during the election and they ran away from the house.
In a written statement dated 18 August 2023 filed with the Tribunal, the applicant claimed that, through his family, he was able to re-establish contact with his wife and children in 2020.
During the first hearing, the applicant initially gave evidence that he had been in contact with his wife and children since coming to Australia (on [date] March 2018) and has been financially supporting them since coming to Australia. He later changed his evidence and claimed that he had no contact with them for about 4 months. The Tribunal raised these inconsistencies in his evidence as an issue and noted that it caused concerns in relation to his credibility and the veracity of these claims.
The applicant responded that his only contact with his wife was when the problem arose. When in hiding, they lost communication. After some time, they started communicating but not all the time. He was sponsoring them and was supporting them because he is responsible for them. After 2020, they started communicating. The SLPP supporters started harassing them again. The government is there constantly harassing people. They have been harassing them continuously since the second round was announced up until now.
The Tribunal asked the applicant how his wife and children are being harassed. He responded that SLPP supporters go to the house and tell them that as long as he is in Australia and they are in Sierra Leone they will kill them one by one. When asked why he was making these new claims for the first time at the hearing, he responded that the need was not there for him to say it. He did not want to say it because if he said it the Tribunal would have asked why he was saying this now. He then made new claims in relation to [social media] which are referred to below.
The Tribunal noted that the applicant had filed a written statement dated 18 August 2023 with the Tribunal two weeks prior to the first hearing. In that written statement, there was a subheading ‘Families adverse interactions with APC’. The Tribunal noted that ‘APC’ was probably an error and it should have been ‘SLPP’. The Tribunal noted that in the written statement he referred to two of his cousins being arrested because of their support of the APC but made no mention that his wife and children were being harassed or that their lives were being threatened. He responded that his wife and children are his first priority before any other person. There is no where he can speak. He does not talk about them. Everybody is liable to make a mistake. The first error was saying APC instead of SLPP. He cannot say what he explained to his lawyer and what she asked him is what he spoke about.
The Tribunal reminded the applicant that he was given many opportunities during the hearing to tell the Tribunal about events the Tribunal did not know about. Despite this, he had not mentioned that his wife and children’s lives had been threatened. He responded that as he speaks to the Tribunal things arise. That is how he remembers things. He cannot say he is perfect and knows everything and remembers everything. The Tribunal noted that it had difficulty reconciling his evidence that his wife and children are his first priority and then did not tell the Tribunal that threats were made to kill them one by one. He responded that he did not “put it directly in there”. He did mention that they harassed them. He said when he remembers them tears run down his cheeks.
The Tribunal has a number of concerns in relation to the above claims and the applicant’s evidence. Firstly, in his visa application, he claimed that SLPP supporters went to his house after the election and his wife and children went into hiding. At his interview with the Department, he claimed that they went to his house during the election and his wife and children ran away. In responding to an issue raised with him at the second hearing, he made new claims that SLPP supporters go to the house and harass his wife and children ‘continuously’ from the time of the second round of elections until now. If they had run away from their house and were in hiding, SLPP supporters and the government would not have known where they were or been able to harass them ‘continuously’ as claimed.
Secondly, the applicant’s evidence in relation to his contact with his wife and children since coming to Australia has been contradictory. When given an opportunity to explain the contradictions in his evidence, he just repeated his evidence but offered no explanation for the contradictions. Thirdly, in his statement dated 18 August 2024 prepared with the assistance of his lawyer for the hearing, he made no mention at all of his wife and children under the sub-heading ‘Families adverse interactions with APC’.(sic) Instead he referred to two cousins having problems because of their support of the APC (sic). The Tribunal would expect that if his wife and children were his first priority as claimed, he would have discussed with his lawyer his concerns for the safety of his wife and children, why he had those concerns and provided the full details in his written statement.
Fourthly, the applicant’s failure to mention that SLPP supporters threatened his wife and children that as long as he is in Australia and they are in Sierra Leone they will kill them one by one until responding to an issue raised at the end of the second hearing is significant. His explanation for this failure that he remembers things when speaking to the Tribunal is unconvincing and the Tribunal does not accept it. The Tribunal would expect his memory to have been clearer at the time his application for a Protection visa was prepared than it was at the second hearing some 5 ½ years later. Further, he responded to questions and discussed his claims with the delegate at his interview with the Department and with his lawyer when preparing his written statement dated 18 August 2023 but this does not appear to have jogged his memory.
Fifthly, the applicant’s explanation for why he mentioned the threats to kill his wife and children for the first time at the end of the second hearing before the Tribunal was because “the need was not there for him to say it” and because he did not want to say it because if he did the Tribunal would have asked him why he was saying this now is incomprehensible. It is not consistent with his claim that his wife and children are his first priority. His evidence and his conduct leads the Tribunal to the conclusion that he fabricated these claims and his evidence as he was giving it.
These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.
Fourth, in his application for a Protection visa the applicant claimed that after the APC lost the election to the SLPP, SLPP supporters went to his house and arrested two of his family members who are currently in prison. In his statement dated 18 August 2023, he stated that two of his cousins were arrested because of their support of the APC, one of them has since fled Sierra Leone and the other is in hiding. During the first hearing, he gave evidence that his two cousins were arrested and detained after the election. One of them escaped and the other was released. He does not know their whereabouts.
The applicant’s evidence to the Tribunal was that his household consisted of him, his wife and their [children]. His wife and children live in [Area 1] in Freetown. His mother was initially part of his household but left and moved in with his [sibling] at [Area 1]. It is therefore unlikely that his two cousins were at his house, after he had left Sierra Leone to travel to Australia, and were there when SLPP supporters went to his house and were arrested. His evidence was that his wife received a tipoff that SLPP supporters were going to her house and she and her children left the house. Even if his two cousins were visiting his wife and children at that time, it is implausible that they would have remained in the house after the tipoff was received instead of protecting his wife and children and leaving with them.
In these circumstances, it is implausible that SLPP supporters arrested two of the applicant’s cousins at his house after the election. When the Tribunal raised this as an issue, he responded that he was the head of the family. He did not say his two cousins were with him. He said they were arrested. One of them escaped. They are his family but were not at his house when it was raided. They were arrested because they argue with people. His explanation contradicts his claims in his application for a Protection visa and exacerbates the Tribunal’s concerns.
These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.
Fifth, in his application for a Protection visa, the applicant claimed that he received a voicemail message threatening him with harm if he returns to Sierra Leone. He also claimed that he has regular telephone calls with his cousin who warns him that it is too dangerous to return (to Sierra Leone). Despite having plenty of time and opportunities to provide evidence of the voicemail threat and corroborating evidence from his wife and cousin he has not done so. This raises further doubts in relation to his credibility and the veracity of these claims.

Sixth, the applicant provided to the Tribunal an undated letter from his [Relative A], [Mr A], to support his application. In his letter, [Mr A] confirms that the applicant is his [relative]. He stated that after the announcement of the results of the 2018 Presidential election was made Mr Julius Bio was declared the winner. Mr Bio alleged that he was attacked and an attempt was made to assassinate him by [Mr A]’s supporters. Supporters of the SLPP threatened to attack and kill [Mr A]’s supporters if they won the runoff elections.
[Mr A] stated that he received a telephone call from the applicant who informed him that he was in Australia to avoid the threat from Mr Bio and his supporters because he was convinced that Mr Bio would win the runoff election. When the results of the runoff Presidential election were announced on 4 April 2018, supporters of the SLPP attacked and vandalised the homes of his supporters including the applicant. He was subsequently contacted by the applicant’s wife and was informed that they had left the house before the SLPP supporters arrived and the house was vandalised. The applicant’s safety and even his life could have been compromised if he was in Sierra Leone at the time.
In his letter, [Mr A] refers to the refusal of the Notice of Refusal of an Application for a Protection visa and he would therefore have been aware that the Department refused the applicant’s application for a Protection visa. It can be inferred from this that he would have been aware that the applicant sought a letter from him for the purpose of supporting his application for review before the Tribunal. In his letter, [Mr A] refers to the applicant as one of his supporters. He makes no mention of him being a member of the APC or an office bearer in the Youth Wing of the APC or campaigning for him in the lead up to the elections in March 2018. (The country information indicates that the Presidential elections were held on 7 March 2018 and the runoff elections were held on 31 March 2018).[1]
[1] The Sierra Leone Web (Sierra Leone Web - 2018 Elections (sierra-leone.org))
[Mr A]’s evidence that the applicant told him that he was in Australia to avoid the threat from Mr Bio and his supporters because he was convinced that Mr Bio would win the runoff election is not consistent with the applicant’s written and oral evidence in relation to why he came to Australia. In his application for a Protection visa, he claimed that he did not seek help before the election because he was hoping and confident that the APC would win.
In his statement dated 18 August 2023, the applicant stated that since 2012 he was the [Occupation 2] for [Sierra Leone at Event 1]. In October 2017, he was told by the Sierra Leonne [Organisation 2] that he would be attending [Event 1] in Australia as the [Occupation 2 for Sierra Leone]. He left Sierra Leone (for Australia) on [date] March 2018. At this time, the first round of the election had been completed but no winner was announced. The only reason why he agreed to travel to Australia on [date] March 2018 was because he assumed that the election campaign would be over and the winner announced. The APC expected to win the election. As he had already committed to travelling to [Australia], he was left with no choice but to leave with the [other people] representing Sierra Leone.
During the first hearing, the applicant gave evidence that he had no qualifications to be a [Occupation 2]. He [had experience in the field]. He had been [involved in the field] for 15 to 20 years and the President of [Organisation 2] asked him to be [the Occupation 2]. He stated that he did not want to come to Australia because he was highly engaged in politics. The President of [Organisation 2] “emphasised” that he come to Australia when he told him that he did not want to come here. He agreed to come here but insisted that he had to return to Sierra Leone because his plan was to go back and join his [Relative A] in politics.
The Tribunal is of the view that [Mr A] would be in the best position to know the extent of the applicant’s involvement in the APC and in his election campaign. If the applicant was “highly engaged in politics”, campaigned for his [Relative A] in the 2018 elections and [did specified work] as he claims, the Tribunal would expect [Mr A] to have been aware that the applicant was leaving Sierra Leone to travel to Australia before the runoff Presidential election on 31 March 2018 prior to him actually leaving. The Tribunal would also expect him to have been aware of why he was coming to Australia and his intention to return to Sierra Leone as claimed.
[Mr A]’s evidence raises doubts about the applicant’s claims in relation to the extent of his involvement in the APC and in his election campaign. His evidence in relation to the applicant’s explanation for why he came to Australia contradicts the applicant’s own evidence and raises issues about the applicant’s credibility and the veracity of his claims.
The Tribunal raised the above issues with the applicant, noted that his [Relative A]’s evidence did not support a number of his claims and contradicted others and raised issues in relation to whether he was involved in the election campaign. The Tribunal noted that it also raised issues in relation to whether he was part of the Sierra Leone [Event 1 delegation], his motivation for coming to Australia and the credibility of his claims.
The applicant responded that if he was not in the [Event 1 delegation] how was he in the [Event 1 accomodation]. When he arrived in Australia on the [date] morning, [he went] to the [accomodation] and reported that he was part of the [delegation]. If he was not part of the [delegation], why did they speak to him? He entered the [accomodation], introduced himself and was given a pass. They asked him if he could drive and he answered yes. They gave him a vehicle to drive. He was the first person who started driving. If he was not part of the [delegation] they would not have allowed him in the [accomodation].
The applicant responded that he did not tell his mother that he was coming to Australia. He did not tell his [Relative A] anything. He knew he was with him. He did not say that Junior Bio was going to win. [Relative A][details deleted]. On his arrival in Australia, he was confident that the APC would win. It was because they did not win that he received a threat. He was threatened that if the APC does not win they will beat and kill them. Nothing came of it. The reason he was convinced was because he had undergone a lot of threats. They harassed him, slapped him and ran after him. There was scrap on his feet.
The Tribunal asked the applicant whether he was suggesting that his [Relative A] had not been truthful in his letter. He responded that his [Relative A] cannot lie. The Tribunal pointed out that if his [Relative A] cannot lie and he cannot lie, they should both be saying the same thing. He responded that the letter was provided to confirm that they are related. The Tribunal noted that the letter does more than that. The first paragraph confirms that he is his [relative]. The rest of the letter is about the election and the campaign. He responded that the letter says he is his [Relative A], he was attacked and APC members were attacked. The Tribunal noted that the letter refers to supporters. He responded that some supporters could be members. His [Relative A] explained that he was with him during the campaign but did not go into detail. The Tribunal noted that the letter refers to him being one of his supporters but does not mention that he was involved in the campaign. He responded that the fact that he mentioned that he supported him meant that he was with him everywhere he went.
The Tribunal does not find the applicant’s explanation to be persuasive and it does not alleviate the Tribunal’s concerns.
Seventh, the applicant provided to the Tribunal a letter dated 15 August 2023 from Mr [D], [Position 2] of the APC in Sierra Leone. In his letter, Mr [D] stated that he has known the applicant for quite some time and could confirm that he was an Executive Member in the Youth Wing of the APC and the [relative] of [Mr A]. He provided generic information about the political climate in Sierra Leone and concluded by stating that the applicant “aggressively and persistently criticised” the SLPP government but provided no details.
This evidence is not consistent with the country information which indicates that the APC was in government since the applicant became a member of the APC, the SLPP had not been in government since 2007 and only returned to power and formed government after the March 2018 elections.[2] The applicant left Sierra Leone on [date] March 2018.
[2] Sierra Leone People’s Party, Wikipedia. (Sierra Leone People's Party - Wikipedia)
In his letter, Mr [D] made no mention of the applicant being an [Occupation 1] for [Mr A] or that he participated in the 2018 election campaign and campaigned for [Mr A] or that he received threats and was physically assaulted on up to ten occasions or, alternatively, more than ten occasions because of his work campaigning for the APC.
The letter from Mr [D] was provided to the Tribunal to corroborative the applicant’s claims. The Tribunal considers that if the applicant suffered persecution because of his membership of the APC and/or campaigning on behalf of the APC, Mr [D] would have mentioned it in his letter. His failure to do so raises further concerns about the credibility of the applicant’s claims. Mr [D] was not called to give evidence at either of the two hearings and the Tribunal was therefore unable to test his evidence. The Tribunal raised these issues with the applicant and noted that it may not place much weight on this letter.
The applicant responded that the letter was written by the [Position 2] and he gave his contact number if there are any concerns about his letter. The conclusion is that he spoke against the SLPP and the government. They are doing bad things and suppressing the nation. The Tribunal noted that a direct telephone number had not been provided so the Tribunal was unable to contact him. (The letterhead had four telephone numbers for the regional offices in the country). He responded that he is in the western region. The Tribunal was then informed that it was 12.30am in Sierra Leone and the telephone numbers were landline numbers. The Tribunal noted that it was unlikely that someone in the office would answer the telephone at 12.30am. He did not respond.
The applicant’s lawyer requested and was granted further time after the second hearing to provide additional evidence and post hearing submissions. The Tribunal did not receive any further evidence from Mr [D] that addressed the above issues.
Eighth, the applicant provided to the Tribunal a letter dated 21 August 2023 from APC Australia District which is signed by [Mr B], [Position 3], and [Mr C], [Position 1]. In the letter, [Mr B] stated that he had verified the applicant’s involvement with the APC in the years leading up to the 2018 election with the APC Headquarters in Freetown, Sierra Leone, and it had been confirmed that the applicant was [an Occupation 1] and relative of [Mr A]. In the immediate aftermath of the election there was violence and the applicant was a key target. APC Australia had verified that the applicant remains a person of interest to disgruntled supporters and stakeholders of the ruling party.
The letter stated that the applicant’s [Relative A] is at a lower risk of losing his life for fear of international condemnation due to his political status but the applicant is unlikely to have the same privilege. APC Australia members held a protest outside Parliament House in Canberra against the Sierra Leonean government and he participated in this protest. He has been an active member of APC Australia since his arrival in Australia in 2018. He is a registered and paid up member and continues to contribute to the APC financially and otherwise. His involvement in activities and support for the APC at home and abroad makes him a target.
The letter does not indicate who in particular verified the applicant’s involvement in the APC in Sierra Leone and the source of that person’s knowledge. It refers to the applicant’s involvement in activities and support for the APC at home but does not elaborate on those activities other than stating that he was the official [Occupation 1] and relative of [Mr A]. It refers to him being a key target in Sierra Leone but does not indicate why. It refers to him being an active member of APC Australia since his arrival in Australia in 2018 but does not indicate how he has been active other than for making financial contributions and attending a protest in Canberra. It is also not consistent with the applicant’s evidence.
The Tribunal considers that [Mr B] could have provided important evidence to support the applicant’s claims. However, the applicant did not call him or [Mr C] to give evidence at his hearings even though these witnesses are in Australia. The Tribunal has not been able to test this evidence and these issues impact on the weight that can be placed on this evidence.
The Tribunal raised these issues with the applicant. He responded that they are not in Sydney. [Mr B] is from Canberra and he thinks [Mr C] is also from Canberra. When asked how they would know what he did in Sydney, he responded that there are APC members in Sydney, Perth and are scattered everywhere. At times [Mr B] calls him and at times he has an “open conversation”. He did not know they had to be at the hearing. He understood that he had to attend the hearing alone with his lawyer and the interpreter, his lawyer was not permitted to say anything and he had to talk. The Tribunal could contact [Mr B] in Canberra. The Tribunal then attempted to contact [Mr B] during the hearing but was unable to do so.
The applicant’s lawyer requested and was granted further time after the hearing to provide additional evidence and post-hearing submissions. Despite having considerable time after the hearing to provide an additional statement from [Mr B] to address the issues raised, the Tribunal did not receive any further evidence from [Mr B].
In his evidence to the Tribunal, the applicant stated that he joined APC Australia towards the end of 2018. He contacted [Mr B] and introduced himself. He told him what to do. They had some categories and he chose a category. When he joined APC Australia he did not “show” himself. If they organised an activity or program or meeting, he contributed financially. They were not forced to contribute and could give what they could (afford). When asked whether he had attended any meetings in Australia, he responded only once or twice. When asked where the meetings were held, he was unable to name the place. He responded that he could not remember the name of the street. It was close to the train station.
The applicant stated that he did not attend outings but went to Canberra on 7 August and participated in a protest. There were about forty people at the protest. When asked about the purpose of the protest and what they hoped to achieve by protesting, he responded that it was to show the world that it is not safe and it is like sitting on a time bomb. No one who searches the internet will see anything about what is happening in Sierra Leone. There is currently a ban on fishing boats.
The Tribunal asked the applicant how much money he had contributed to APC Australia. He responded that he could not remember but had given “a lot”. He gave the money to a friend and asked him to take it along. He has not provided any evidence to corroborate these claims.
The applicant’s evidence is not consistent with the letter from APC Australia District which states that he has been an active member of APC Australia since his arrival in Australia in 2018, continues to contribute to the APC financially and otherwise and his involvement in activities and support for the APC at home and abroad makes him a target. His evidence is that he has attended one or two APC Australia meetings. When asked about these meeting, his responses were vague and unconvincing. It raises doubts about whether he attended any meetings.
The applicant’s evidence is that he has been financially supporting his family since he came to Australia. He lives in Sydney which is the most expensive city in Australia. In these circumstances, it is implausible that he contributed “a lot” of money to APC Australia whilst working here [in a low paid position]. The Tribunal considers it to be contradictory that he has given “a lot” of money to APC Australia but is not committed enough to the organisation or the cause to attend meetings and participate in activities. The Tribunal places little weight on the letter dated 21 August 2023 from APC Australia District.

100. Ninth, in his statement dated 18 August 2023, the applicant made a number of new claims. He claimed that after coming to Australia he became a member of APC Australia. APC supporters organised a protest in Canberra outside Parliament House on 7 August 2023. He attended this protest. Individuals took videos of them at the protest. He claimed that in Australia he became part of a WhatsApp group called ‘APC Family’ where they share news about the party and its activities. He claimed that given his “social profile” he can be easily traced if he returns to Sierra Leone.
101. The applicant provided the Tribunal with three photographs of protesters standing in front of Parliament House in Canberra. They stood behind a large banner that had the words ‘Save Our Democracy in Sierra Leone.” When asked why these photographs were taken, he responded that he wanted to show that he was involved in politics. He is against the government in Sierra Leone and what they are doing. He wanted to show them that he does not have the guts to protest in Sierra Leone but can protest in Australia where there is a democracy.
102. At the end of the second hearing, the Tribunal raised a number of issues with the applicant. In response to an issue raised, he made new claims that the protest in Canberra is on [social media] and people have told him that they saw him on [social media]. When asked why that was a problem, he responded that he protested against the sitting SLPP government and is always against them. When asked why he is now making these new claims when he had not mentioned it in his statement dated 18 August 2023, he responded that he answers depending on the way the conversation is going. What the Tribunal does not ask him he does not respond.
103. The applicant gave evidence that he did not have a [social media] page in Sierra Leone. He was part of a WhatsApp group with friends. He opened a [social media] page in Australia in his name because his companions wanted him to do so. He does not use it. Even before he went to the Department, he was advised by the Refugee Advice and Casework Service not to be on [social media]. If the Tribunal looks at his [social media] page he has nothing there. He has a (profile) photograph of himself with his [children]. When asked what he meant by people seeing him on [social media], he responded that it was not on his [social media] page. He provided his lawyer with a photograph.
104. Following the second hearing, the Tribunal was provided with a photograph of a post on [Website 1] and a link to the website on [social media]. The photograph of the post is dated [date] and is titled [deleted]. The photograph shows a group of people behind a large banner which has the flags of Sierra Leone and Australia, the words [deleted]. It also has [photographs] on the banner which are illegible. The banner is held up by [number] people whose faces are in shadow ([some] fully and one partially) and there are a few people in the background whose faces are completely in shadow. The person whose face is partially in shadow is not the applicant. The Tribunal is unable to identify the applicant in the photograph. The post indicates that there was one comment, one share and [number] views.

(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.
…

(Sierra Leone postpones runoff vote until Saturday – DW – 03/26/2018)

[2024] AATA 4474

30 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice