1830405 (Refugee)

1830405 (Refugee) [2023] AATA 4588 (14 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1830405
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Rachel Da Costa
DATE:14 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 November 2023 at 10:46am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – imputed political opinion – youth advocate and public speaker imputed as anti-government – attacked by group, detained and mistreated by police and threatened by pro-government secret society – participated in community meeting and demonstration – lived in hiding and departed via third country – credibility – inconsistent claims and evidence – new claim made at hearing – threat of forced initiation by secret society – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Sierra Leone, applied for the visa on 10 January 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following information. He was born in Freetown, Sierra Leone in [Year]. He speaks, reads and writes Krio, English and Temne. He is a Christian.
In Sierra Leone, he has his father, brother and sister. From birth until June or July 2017, he lived in Freetown, Sierra Leone. From June or July 2017 to July or August 2017, he lived in [Town 1], Bombali District, Sierra Leone. From July or August 2017 to [September] 2017, he lived in [Country]. Then he departed for Australia.
From birth until 2014, he was supported by his family. He withdrew from High School in [Year]. From 2014 to August 2017, he was a member of [a Group] and received a financial allowance. From 2015 to July or August 2017, he was an unpaid volunteer youth advocate at [a Workplace] in Western Freetown. Since then he has been unemployed.
He arrived in Australia [in] September 2017, having departed Sierra Leone in July or August 2017 and took a bus across the border to [Country]. He travelled on his Sierra Leone passport issued [in] 2017. He entered Australia as the holder of a Visitor visa.
In the Tribunal hearing, the applicant gave evidence that he has married in Australia. He and his wife have one child and another child who passed away. His wife is pregnant again. The applicant also has another child from a previous brief relationship in Australia. He is not in contact with that child or its mother but he pays child support. The applicant provided documents to support this. The applicant also gave evidence that growing up, he lived with his mother in the [Location] district of Freetown and after she died, he lived with his grandmother in the same area. He is no longer in contact with his family in Sierra Leone.
Evidence before the Department
Protection visa application
The applicant’s written claims for protection are contained in a written statement attached to his protection visa application form. He makes the following claims:
·     He became a member of [a Group] around 3 years ago.
·     In Freetown, from around one and a half years ago, he [worked at a Workplace] almost every week on Tuesdays or Wednesdays about the problems in his community. The [Workplace] was a community [Workplace]. He spoke on behalf of young people asking for help and favours from different groups, like the government and people with power.
·     After he started volunteering at the [Workplace], he started to have problems with the government. He advocated for help for the [Group] by asking for help from the government through the [Workplace] because at that time the [group] did not have any [activities] organised and didn’t have the resources they needed. He used to go to the [Workplace] and they gave him a specific time to [talk].
·     Each week, [at the Workplace], he spoke about the problems in the community. He would [explain] that he was seeking help for his community, to help people find jobs. Sometimes he [worked] two or three times a week. He was well known and respected in the community because he advocated for young people. He received many text messages from people, maybe more than 20, threatening to kill him. He doesn’t know why he received these threats. He thinks it was because of his role as a youth leader and what he [said]. The threats accused him of sabotaging the government. In his community it was easy to get his phone number because he was a youth leader.
·     He became a youth leader about one and a half years after he started [doing a Group activity]. He advocated for people in his community who had problems, such as those who were struggling to find jobs. As part of his advocacy work he also volunteered to help people in need, by advocating for them, spending time with them on the weekends and writing in the local paper.
·     One Tuesday this year [2017] he went to the [Workplace]. As he was leaving more than 10 men around his age started slapping and kicking him. He fell down on the ground and they ran away. He was beaten by some people from his community one day by some people when he was leaving the [Workplace]. He doesn’t know who these people were or why they beat him. All he knows is that they accused him of sabotaging the government because of what he was [saying].
·     He went to the police to lodge a complaint and they would not allow him to say anything. They didn't ask him any questions and they put him in a cell immediately. The police knew who he was. He doesn’t know why they did this. He tried to ask the police why they put him in a cell but they wouldn't give him any answers.
·     He was left in the cell for 3 days. The police treated him badly. They only gave him a very small amount of food to eat in the morning and nothing for the rest of the day.
·     When he returned home he found some graffiti on his house threatening to kill him if he didn't leave Sierra Leone and accusing him of wanting to sabotage the government. He thinks they threatened him because of what he [said]. He never had any trouble or problems with anyone before he started [speaking].
·     The same day that he got out of the police cell, he ran away to another village called [Town 1], about three hours’ drive away. When he arrived there he received more text messages, threatening that he would be killed no matter how far away he went. He was walking down the street and saw some members of a secret society called Odeh/Ojeh. They threatened him because the society is loyal to the government. He knew they were from that society because they were all wearing the same costume, a lapa, like a uniform. They tried to chase him to capture him but he ran away quickly. They were carrying wooden sticks. He lost his phone while he was running. He escaped from them and went to his friend [Mr A]'s mother in the village. She advised him to leave the village and she has connections with [Country] people so she helped him travel to [Country].
·     He travelled to [Country] on a bus and he stayed with his friend [Mr A]'s sister. When he called his friend's mother and his friend [Mr A], he told him that a member of the [Group] said they had [an activity] in Australia. This was about one month before the [group] left. He didn't have a phone in [Country] and the only people he could communicate with were [Mr A] and his mother through [Mr A]'s sister. They told him to meet them across the border in Sierra Leone. He met the [group] at a place called [Town 2] and was given his passport. He then joined the [group] and travelled with them through [Country] to catch a plane to Australia that day.
·     He is scared to return to Sierra Leone and believes his life is at risk.
·     If he returns to Sierra Leone, he is afraid he will be subjected to serious harm, including being beaten and killed, because of his role as youth leader and advocate.
·     He is afraid of this harm from the government and the people who threatened him before.
·     He cannot relocate to any other part of Sierra Leone because the same things will happen. The Odeh society is everywhere in Sierra Leone and they will find him and hurt him.
·     The authorities won’t protect him or help him. When he was beaten and threatened he tried to tell the police and they locked him up instead of helping him.
·     He hasn’t heard from him family as he lost his phone and he doesn’t know anything about their situation. He lost contact with his father and siblings when he left Sierra Leone.
·     He obtained his passport himself while in Sierra Leone because he knew he might need to travel for [Group activities].
Interview with the delegate
On 30 August 2018, the applicant attended an interview with the delegate. In the interview, he responded to questions and elaborated on his claims. The Tribunal has listened to a recording of the interview. Where relevant, information provided by the applicant in the interview is referred to below.
The delegate’s decision
On 10 October 2018, the delegate made their decision. The delegate found that overall, the applicant’s testimony about claimed events in Sierra Leone was not credible. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 17 October 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision.
Prior the hearing, the Tribunal obtained a copy of the Departmental file relating to the applicant’s Visitor visa application. The Tribunal has considered the information on that file but does not find it to be relevant to the applicant’s claims for protection.
The hearing
The applicant appeared before the Tribunal on 26 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages, although the applicant speaks English and did not always require the assistance of the interpreter.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted 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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the applicant gave evidence that a lawyer helped him to fill out his protection visa application form and to write his statement. He said that he provided the information and the lawyer put the information down. The applicant confirmed that all the information in his application was true and correct.
In the hearing, the Tribunal discussed with the applicant his family, his residential history, his employment and education, his travel history, his involvement in [Group activity], his political views and activities, what he claims happened to him in Sierra Leone and why he fears returning there. Aspects of the applicant’s evidence about key claims has changed over time and this raises a concern for the Tribunal. There are also significant aspects of the applicant’s written claims which he did not refer to in the Tribunal hearing despite being given the opportunity to do so, and he raised a new claim in the hearing which he had not raised previously. For all these reasons, the Tribunal has concerns about the credibility of the applicant’s claims.
The Tribunal’s concerns are set out below.
The applicant’s political activities in Sierra Leone
In his written statement, the applicant claims that he was a youth advocate in Sierra Leone and about one and a half years before leaving that country, he began [speaking regularly]. He spoke about local issues affecting young people in his area and about the problems the [Group] was facing. As a result of this activity, he started having problems with the government. He began receiving threatening text messages accusing him of sabotaging the government. One Tuesday in 2017, as he was leaving the [Workplace], he was attacked and beaten by a group of men who accused him of sabotaging the government because of what he was [saying].
In the interview with the delegate, as set out in the delegate’s decision, the applicant repeated the claim that he was attacked outside the [Workplace] where he worked. He estimated four to six people attacked him. They did not say anything to him but he thinks the attack was linked to the threatening text messages.
In the Tribunal hearing, the applicant was asked about his political views and involvement. He said he did not vote in the general elections in Sierra Leone, he did not support a political party in Sierra Leone and he was not involved in politics. He was able to name the two main political parties in Sierra Leone, the APC[1] and SLPP[2], and said the parties do not like people who oppose them or speak up about their rights. The applicant said that the parties are “all the same people.” When asked to explain, he said that people swap between the two parties and a government Minister has done this. When asked if he had any independent evidence such as country information to support this claim, he said it is everywhere including on the BBC. In the absence of independent country information put forward by the applicant to support this claim, the Tribunal does not accept it.
[1] The All People’s Congress.
[2] The Sierra Leone People’s Party.
The applicant gave evidence that he was not involved in politically-related activities in Sierra Leone. The Tribunal asked him whether he was involved in community activities. He said that he was an advocate in his area of [Location] and tried to advocate for the people in his community and ask the government for help because people don’t have jobs or places to go and get water, the electricity is unreliable and the roads are bad. When asked to describe when these advocacy activities began and what they involved, the applicant said that it was around 2015 or 2016 and a group from his area wrote a letter to the Vice-President of Sierra Leone asking for help because the Vice-President lived nearby. He doesn’t know if the Vice-President received the letter as they did not receive response to it. The Tribunal asked the applicant whether he was involved in any other activities. He said he went to a meeting when a Minister came to campaign in his community. At the meeting, the applicant stood up and tried to tell the Minister he had not been there for the community. The applicant also said that in 2016, he participated in a demonstration in the streets in his area and held a poster. Around 50 or 60 people were in the group. The police came and shot tear gas and some people were arrested, but the applicant was not. He was arrested later. The Tribunal asked the applicant whether he was involved in any other community activities apart from the letter, the meeting and the protest. He said that was all.
The Tribunal put to the applicant its concern that his evidence about his community activities had changed over time. In particular, in his original claims he had said he was a regular [speaker] and that is why he attracted adverse attention, but he had not mentioned that in the hearing. The applicant responded that there are a lot of things he doesn’t remember and he just told the Tribunal what he was able to remember. He doesn’t read well and so it is hard for him to read and recall what happened. He has tried to move on with his life and is living happily now.
The Tribunal has considered the applicant’s response but does not accept it. The applicant’s key claim in his written statement and to the delegate in the interview is that he was a community or youth advocate and his main form of advocacy was [speaking regularly] about issues facing his community which involved him criticising the government, and this was the main cause of the problems he experienced in Sierra Leone. The Tribunal acknowledges that the passage of time can cause memories to fade, but the Tribunal does not accept that if the applicant made regular [appearances] several times a week for about 18 months as an advocate as he claimed, it is not something he would have forgotten to mention. Instead, in the hearing he said the only activities he was involved with were writing a letter, attending a meeting and participating in a demonstration, which are activities he had not mentioned previously. The Tribunal does not accept that the applicant’s claimed poor reading skills or the fact that he has tried to move on with his life can account for his failure to mention his [regular appearances]. This discrepancy in the applicant’s evidence raises concerns for the Tribunal about the truthfulness of his evidence and the genuineness of his claims.
The applicant’s arrest and detention by police

In his written statement, the applicant claims that after he was beaten outside the [Workplace] he went to the police to report this and to make a complaint, but the police didn’t ask him any questions and put him in a cell where he was kept for three days before being released.
In the interview with the delegate, as set out in the delegate’s decision, the applicant made a similar claim.
In the Tribunal hearing, the applicant told a different story. He gave evidence that after the demonstration he attended when the police came with tear gas, he had run away and hidden in the area but late that evening the police caught him. He said he was hiding but he went out to go to the shop and as he as walking, some undercover police asked him his name. When he confirmed his name, they arrested him. They took him to the police station, kept him there for three days and then released him. He does not know why he was released.
In the hearing, the Tribunal raised with the applicant its concern that key aspects of his evidence had changed over time which raised doubts about the credibility of his claims. The applicant responded that there are a lot of things he doesn’t remember any more. The Tribunal has considered this response but does not accept it. The applicant did not claim that he had any particular medical issue, for example, that affected his memory. While the Tribunal acknowledges that the passage of time can cause memories to fade, it does not accept that this can account for the applicant telling two very different stories about how he came to be locked up by the police for three days. One story involves him voluntarily going to the police station to report an attack and the other involves him being arrested by undercover police after participating in a demonstration. These differences in the applicant’s evidence raise concerns for the Tribunal about the credibility of the applicant’s claims and whether they have been manufactured for the purpose of his protection visa application.
The applicant fleeing to [Town 1] and being attacked
In his written statement, the applicant claims that the same day after being released by the police, he ran away to another village called “[Town 1]”. When he arrived there, he received more threatening text messages saying he would be killed no matter how far away he went. He was also chased and threatened by members of a secret society called Odeh/Ojeh who are loyal to the government. He escaped and went to his friend’s mother who lived in [Town 1]. She helped him to escape to [Country].
In the interview with the delegate, as set out in the delegate’s decision, the applicant said he fled to “[Town 1]”.[3] He claimed that while he was there, he saw some Odeh/Ojeh people who chased him. They did not say anything to him and he managed to get away and fled to [Country].
[3] The Tribunal finds that “[Town 1]” in the applicant’s written statement is a reference to the town of “[Town 1]” which is in Sierra Leone: [Google maps reference]C:\doc-conversion\inputToHtml\u
In the Tribunal hearing, the applicant gave evidence that after the demonstration the police started coming to his suburb in Freetown and beating young people and using tear gas so the applicant left about two or three days after being released by the police and went to [Town 1] and stayed with a friend’s sister. He said that in [Town 1], he was bashed by a group of people and this happened in around 2016 or 2017. These people were secret society members from the Ojeh society.[4] He knew they were from this society because they had uniforms and sang and put palm leaves to their mouth. The applicant explained that he had been living in [Town 1] for a couple of months when one day he went to get food from a shop. He turned and saw a group of about seven Ojeh society people who said they were going to take him to the bush. They started hitting the applicant with sticks and punching him. Some grabbed his shirt and pants. The applicant fought them off and ran away and managed to escape. These people kept looking for him and went to the lady’s house where the applicant had been staying, but he had already gone. He fled to [Country] to escape these people.
[4] In the hearing, the applicant referred to the people as being from the Ojeh secret society and the Tribunal accepts he was referring to the same group he called the Odeh/Ojeh society in his written claims.
The Tribunal asked the applicant why these secret society people wanted to attack him. He said that his father was connected with the Ojeh society and in Freetown, these people had told the applicant he would be next to be initiated into the society, but the applicant didn’t want this. His father wanted him to join. The Ojeh society people started saying he had to join them while he was still living in Freetown, a few weeks before the incident in [Town 1]. They came to his grandmother’s house where he lived and left a written note saying that if the applicant didn’t join the society he would be killed. This written threat was made more than two or three times but the applicant could not remember when the threats started or whether there were any other threats because it has been a long time. The Ojeh society people attacked him in [Town 1] because that is where the forest is that they would take him to.
The Tribunal put to the applicant its concern that his evidence about why he fled to [Town 1] and why he was attacked there had changed, as well as only raising the claim about being forced to join the Ojeh society for the first time in the Tribunal hearing. The applicant responded that there is a lot he does not remember and he has moved on with his life. For the same reasons explained above, the Tribunal does not accept this explanation for the discrepancies in the applicant’s evidence.
In his written statement and in the interview with the delegate, the applicant claimed that he went to [Town 1] to get away from the people who had been threatening him and beat him because of his youth advocacy work and [speaking] in Freetown. In the Tribunal hearing he said it was because the police were coming to his neighbourhood and beating young people and using tear gas. These changes in the applicant’s evidence raise concerns for the Tribunal about the credibility of his claims.
In his written statement and in the interview with the delegate, the applicant claimed that the Odeh/Ojeh people who threatened and chased him in [Town 1] did so because they were pro-government and he was perceived by them as having been sabotaging the government through his advocacy work. In the Tribunal hearing, the applicant told a different story and claimed that the Ojeh people had threatened him in Freetown and then in [Town 1] physically beat him and tried to catch him in order to take him into the bush and initiate him into the secret society due to the connection with his father. This change in the applicant’s evidence about the reason why the Ojeh people were coming after him in [Town 1] and whether he was physically harmed, as well as the fact that he only mentioned the claimed connection between the Ojeh society and his father for the first time in the Tribunal hearing, raises concerns for the Tribunal about the credibility of his claims.
The applicant’s travel to [Country]
In his written statement, the applicant claims that he travelled to [Country] and stayed with the sister of his friend [Mr A]. When he found out about the trip to Australia, he met his [group] across the border in Sierra Leone at a place called [Town 2] and was given his passport. Then he and the [group] travelled into [Country] and caught the flight to Australia.
In the interview with the delegate, as set out in the delegate’s decision, the applicant claims that he entered [Country] using a Laissez-Passer and he was not able to re-enter Sierra Leone because he had left the Laissez-Passer behind (and did not have his passport) so he was reunited with the [group] when they entered [Country].
In the Tribunal hearing, the applicant gave evidence that in [Country], he stayed with a Sierra Leonean man whom he had been put in touch with and who was in [Country] to do business. The applicant stayed in [Country] for about one week. The applicant explained that when he found out about the trip to Australia through a phone call with a friend, he left [Country] and crossed the border back into Sierra Leone. He met his [group], was given his uniform and bag, then they crossed back into [Country] and went to the airport and departed. He had his passport with him in [Country] and did not need to use it to cross the border from [Country] into Sierra Leone. The Tribunal notes that stamps in the applicant’s passport show him leaving Sierra Leone and entering [Country] by land [in] September 2017 and departing [Country] from the airport the same day. There are no stamps in the applicant’s passport which indicate he was in [Country] before this time.
The Tribunal put to the applicant its concern that his evidence about who he stayed with in [Country] and how he joined his [group] and few to Australia had changed over time. The applicant again responded that there were a lot of things he does not remember any more. For the same reasons as those set out above, the Tribunal does not accept this explanation. The applicant has given different evidence about whether in [Country] he stayed with his friend’s sister or a man he had never met before, whether he crossed back into Sierra Leone from [Country] to meet up with his [group] or had to remain on the [Country] side of the border, and whether or not he had his passport with him when he was in [Country] or whether it was given to him when he met up with his [group]. All these differences in the applicant’s evidence raise concerns for the Tribunal about the credibility of his claims.
Findings
Having considered all the applicant’s written and oral evidence, in light of the Tribunal’s concerns set out above about the credibility of the applicant’s claims, the Tribunal finds as follows.
The Tribunal accepts that the applicant was a member of [a Group] and this is the basis on which his Visitor visa was granted and he travelled to Australia. The Tribunal accepts that the applicant did not participate in any [Group activities] in Australia. The Tribunal accepts that the applicant is not in touch with his family in Sierra Leone. The Tribunal accepts that the applicant grew up in the [Location] area of Freetown and that he lived first with his mother and then with his grandmother.
For the reasons set out above, the Tribunal does not accept that the applicant was a youth leader in his community or that he advocated on behalf of others for help and favours from the government and people with power. The Tribunal does not accept that the applicant was a [volunteer] at a [Workplace] in Freetown. The Tribunal does not accept that for around 18 months before coming to Australia he [spoke] regularly several times a week or at all, or that he [advocated] for help for his community and the [Group] and was directly or indirectly critical of the government. The Tribunal does not accept that the applicant volunteered to help people in need or spent time with them on weekends or wrote for the local paper. As the Tribunal does not accept that the applicant was a youth leader or [advocate], it follows that the Tribunal does not accept that the applicant received threatening text messages as a result of his [advocacy] or elsewhere accusing him of sabotaging the government. It also follows that the Tribunal does not accept that one day in 2017 or at any other time, when leaving the [Workplace] the applicant was attacked and beaten by a group of men or that they accused him of sabotaging the government because of what he was [saying].
As the Tribunal does not accept that the applicant was beaten after leaving the [Workplace], it follows that the Tribunal does not accept that he went to report this incident to the police. The Tribunal also does not accept that instead of helping the applicant, the police locked him up for three days and mistreated him.
As the Tribunal does not accept that the applicant was a youth leader or advocate in his community, the Tribunal also does not accept that the applicant participated in writing a letter to the Vice-President or attended a meeting with a Minister where he spoke up about the situation for his community or that he participated in a demonstration in his local area, or that this demonstration was subsequently broken up by police using tear gas and the applicant went into hiding. The Tribunal does not accept that when going to a shop sometime after the demonstration, the applicant was caught by undercover police and taken to the police station and locked up for three days or any other period of time.
For the reasons explained above, the Tribunal does not accept that the day the applicant arrived home after being released from police custody, he found graffiti on his home threatening to kill him and accusing him of sabotaging the government. The Tribunal does not accept that the same day he was released from police custody, or two or three days later, he fled to [Town 1] and stayed with a relative of a friend. As the Tribunal does not accept that the applicant was a youth leader or advocate or that he had received any adverse attention, the Tribunal does not accept that while in [Town 1], the applicant received more text messages threatening to kill him. The Tribunal does not accept that while in [Town 1], the applicant was threatened or chased or beaten by a group of people connected to the Odeh/Ojeh secret society or anyone else for any reason, including him being perceived as sabotaging the government. The Tribunal does not accept that the applicant lost his phone while escaping from these people.
The Tribunal does not accept that while still in Freetown, the applicant had been physically approached by, or received threatening written messages from, members of the Ojeh society who threatened to induct him into the society due to the connection with his father or for any other reason.
For the reasons explained above, the Tribunal does not accept that the applicant fled to [Town 1] to escape the Ojeh society people who wanted to induct him or because of the threats and beating he had received as a result of his claimed [advocacy], or that he fled to [Town 1] at all.
As the Tribunal does not accept that the claimed events in [Town 1] took place, it follows that the Tribunal does not accept that the applicant fled [Town 1] and travelled to [Country] to escape further harm or for any other reason. The Tribunal does not accept that the applicant travelled to [Country] on the advice and with the assistance of his friend’s relative, or at all. The Tribunal does not accept that while in [Country], the applicant stayed with the sister of his friend or with a Sierra Leonean man who was there on business and whom he had never met before. As the Tribunal does not accept the applicant travelled to [Country] at this time, it follows that the Tribunal does not accept he found out about the [Group activity] in Australia while he was in [Country]. The Tribunal does not accept that he crossed the [Country] border back into Sierra Leone to be reunited with his [Group] and to be given his passport prior to the [group]’s departure, or that he remained on the [Country] side of the border and was reunited with his [group] when they crossed the border from Sierra Leone into [Country] and he was given his passport then. As the Tribunal does not accept the applicant’s version of events, it also does not accept that that the only people he could communicate with while he was in [Country] were his friend and the friend’s sister and mother. The Tribunal finds that the applicant did not flee to [Country] as he claims. The Tribunal finds that the applicant was in Sierra Leone prior to his departure for Australia and he had possession of his passport and that [in] September 2017, he crossed the border from Sierra Leone into [Country] with his [group] and then departed [Country] on a flight the same day. The Tribunal does not accept that the applicant left Sierra Leone for the reasons claimed.
Does the applicant meet the refugee criterion?
The applicant claims that he fears returning to Sierra Leone because he will be subjected to serious harm from the government and the people who threatened him before because of his role as a youth leader and advocate. For the reasons set out above, the Tribunal has found that the applicant was not a youth leader and advocate in Sierra Leone and that he did not suffer harm from anyone or for any reason in the past as a result of this. Therefore, the Tribunal does not accept the applicant’s claims. In light of this, the Tribunal finds that if the applicant returned to Sierra Leone in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The applicant also claims he fears serious harm from the people in the Odeh/Ojeh secret society because they want to get him involved and he doesn’t want to, and so they will harm him. As set out above, the Tribunal does not accept that the applicant was approached by, or threatened, or beaten and chased by people from the Odeh/Ojeh secret society or any other society in Sierra Leone or that people from the Odeh/Ojeh secret society wanted to induct him. Therefore the Tribunal does not accept the applicant’s claims. In light of this, the Tribunal finds that if the applicant returned to Sierra Leone in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The applicant has not claimed that he fears returning to Sierra Leone for any other reason and the Tribunal does not consider that any other claims arise based on the material before it.
Taking into account the findings set out above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Sierra Leone now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[5] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[5] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
Member

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

[2023] AATA 4588

14 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction