1831247 (Refugee)

1831247 (Refugee) [2023] AATA 2276 (11 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1831247
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:David James
DATE:11 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2023 at 9:39am
CATCHWORDS
REFUGEE – Protection visa – Sierra Leone – political opinion – All People’s Congress (APC) supporter – fear of harm from Sierra Leone People’s Party (SLPP) members and/or supporters – involvement in the production of APC campaign material – does not have a significant APC supporter profile – credibility concerns – wife and son are Australian citizens – compassionate circumstances – likely psychological harm – exceptional economic, scientific, cultural or other benefits to Australian community – vacancies in industry in which applicant is training and working – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 411, 417, 499
Migration Regulations 1994, Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 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 Home Affairs on 19 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 claims to be a citizen of Sierra Leone, applied for the visa on 14 May 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sierra Leone, that there is a real risk the applicant will suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal), on 24 October 2018. The applicant then later provided a copy of the delegate’s decision to the Tribunal.
As noted above, the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 6 December 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 mot represented in relation to the review.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Sierra Leone he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sierra Leone, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The applicant in his Protection visa application of 14 May 2018 and his Statutory Declaration of 11 May 2018 which was received by the department on 15 May 2018 made the following claims (in summary) for protection:
·That he was born in Sierra Leone but was living in [Country 1] and in or around September 2017 he was contacted by [Official 1] of the Sierra Leone’s All People’s Party (APC) to produce [material] for the APC’s upcoming political campaign.
·[In] November 2017 he travelled to Freetown, Sierra Leone from [Country 1] where he was working and living to meet with [Official 1] (APC) and a few of the [rally participants/supporters] to discuss the [use of the materials] he had produced for their rallies, concerts and campaign rallies.
·The [materials he produced] were released within days, and he then started to receive threats from the opposition party, Sierra Leone People’s Party (SLPP) which was led by the now President Maada Bio.
·At an APC rally on a date that he cannot recall, he was confronted by a group of SLPP supporters who told him he had been making a mockery of their party. They surrounded him and pushed him around. He ran away and took refuge in a nearby building. Later that evening he attended an APC concert at the national [stadium]. After the event when he was leaving the stadium, he was attacked by a group claiming to be SLPP supporters. The group were wielding metal poles and knives and they beat him with these weapons. One of the men in the group slashed his right arm with a knife and they stole his mobile phone and some money he had on him. He reported this attack to the police who asked him to make a statement, which he did.
·He also reported this attack to [Official 1] who told him he would look int it. When he returned to the police station several days later, he was told his complaint was still under investigation.
·He was too afraid to stay in Sierra Leone, so he returned to [Country 1].
·A few days after arriving back in [Country 1] he started receiving threatening messages on his [social media] account saying that they knew he was in [Country 1] and that he cannot hide in [Country 1] and that they will find him wherever he is and that they will harm his younger brother and niece if he did not stop making a mockery of the SLPP.
·On or around December 2017 rocks were thrown at the windows of his house in [Country 1]. He called the police but upon their arrival they could not find anyone in the area.
·He later came to find out through one of the [supporters] that his attackers had contacted a gang in [Country 1] to harass and intimidate him as a warning not to produce anymore [materials] for the APC.
·On or around 15 December 2017 he was approached on his way to work and threatened by one of the most dangerous gangs in [Country 1]. These gangs threatened to kill him if he kept supporting the APC in a public forum. They also demanded that he must go to the media and denounce his association with the [APC]. He claims the reason they made this threat was that he had been working with some of the [most prominent supporters] in Sierra Leone.
·After being invited in January 2018 to come to Australia as an [Occupation 1] he left [Country 1] on [date] March 2018 to travel to [Australia]. Whilst in Australia he received an email from his cousin telling him that the SLPP had won the election. He was also informed that some mail had come to his brother’s house saying that they (SLPP) were looking for him and that his brothers had gone into hiding as they had been threatened and informed that his house in [Country 1] had been burnt. The email also reported that some of the [rally participants’ property] and cars had also been destroyed by fire.
·He fears for his life in Sierra Leone and [Country 1].
Department interview
The applicant was interviewed by the department on 23 August 2018.
Delegate’s decision
The delegate’s decision of 19 October 2018 to refuse the protection visa was made on the information before the delegate. The delegate accepted the applicant is a [Occupation 1] as claimed and that the applicant departed Sierra Leone from Lungi airport on [date] November 2017 and probably entered Sierra Leone from Lungi airport at some time on or after [date] November 2017. Therefore, the delegate found that the applicant entered Sierra Leone at some time between [date] November 2017 and [date] November 2017. However, the delegate did not accept that the applicant had entered Sierra Leone on [date] November 2017 and did not accept that the applicant was subjected to harm and mistreatment by SLPP supporters in Sierra Leone in November 2017. However, the delegate did accept that the applicant may have helped to produce [materials] used for the APC election campaign. However, the delegate was not satisfied that the applicant had gained an adverse political profile that caused him to be targeted for harm or mistreatment by the SLPP in Sierra Leone or by gangs aligned to the SLPP in [Country 1].
The delegate found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. As the delegate found that the applicant did not meet the criterion of s 36(2)(a) or (aa) of the Act the delegate did not find it necessary to assess s 36(3) of the Act as to the applicant’s right to enter and reside in a country other than Sierra Leone. However in this regard the delegate did note than on the information before the department the applicant may have protection in another country, [Country 1] and/or [Country 2].
Invitation to attend hearing
On 10 March 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 6 April 2023. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 20 March 2023, the applicant replied to the Tribunal. This response indicated that the applicant would be attending the hearing to give evidence and present arguments, and that the applicant would not be calling any witnesses to give oral evidence before the Tribunal.
Pre-hearing submissions to the Tribunal
On 3 March 2023 the applicant forwarded a submission to the Tribunal in which he broadly repeated his claims and enclosed [purported] APC election campaign [materials]. He stated in the submission (as relevant and in part) that he was born in Freetown, Sierra Leone and presently lives in [Brisbane] and works as a [Occupation 2]. He states he has a child [name deleted] who was born in [year] who he sees at least three times a week. As to his experiences in Sierra Leone and [Country 1] he states that:
The [materials] I produced were prevalent during the 2018 Sierra Leone Presidential and Parliamentary elections. They lampooned the candidate Maada Bio, who ended up winning that election…It was a fiercely contested election between the two major parties. All People’s Congress (the APC) and the Sierra Leone People’s Party (the SLPP). These two parties are not only political rivals, they are also tribal and regional rivals. The support base is mostly based on tribal and regional aspects than policy. I am of a tribe that is closely associates with the APC…But the reason I became a target in 2017 was because I produced [material] that ridiculed Maada Bio.
This coupled with the fact I am of a tribe that closely associates with the APC, make me a target for SLPP thuggish supporters and politicians. And all they want to do to me is cause me severe physical harm or imprison me for producing [materials] that criticise and make fun of their candidate in such an open fashion.
This was why a gang made up of SLPP thuggish supporters and local politicians had come to my house to look for me. I was in great fear for my safety on this day…But the following day they attacked me while I was coming from an APC rally…
I was lucky to escape with my life that day. Because they beat me severely. I went to the police to report. But Sierra Leone Police often do not investigate and pursue crimes like this because of fear of losing their job if the party to which the perpetrators belong wins the elections…
My return to Sierra Leone will put me in grave danger of getting imprisoned or suffering grave injuries because of the [materials] I produced. There are several [others] from my tribe and region that have been imprisoned or fled Sierra Leone because [they] ridiculed politicians…
The situation of politics in Sierra Leone does not require me to have a high or notable public political profile in order to be targeted by SLPP supporters who consistently exhibit thuggish behaviour towards any actual or perceived APC supporter…This is exacerbated by my tribe and regional origin…
I do mot have any residency in [Country 1]. Therefore, I cannot enter [Country 1] at will. I have no protection status in [Country 1]. In fact, I face harm there too because of the [material] I produced for the 2018 campaign
I have never applied for asylum in [Country 2] or hold any [Country 2] residency at any point of y life. I was bemused to see the immigration officer made the outlandish claim that I may have protection in [Country 2]. This is absolutely based on flimsy search.
Tribal violence after the election was prevalent. Not all of it would be noticed by international media or international organisations. Local media try to avoid it as much as possible so as not to be in the bad books of the new administration, which inevitably will be filled with officials from a certain tribe and region of the country.
At the end of the submission the applicant provided a list of five internet addresses reporting on political violence and ethnic conflicts in Sierra Leone.
Country information
Background of Sierra Leone
Sierra Leone was the departure point for the transatlantic slave trade, and the capital Freetown, was founded as a home for repatriated former slaves in 1787. The country went into civil war which ended in 2002. Since then, it has experienced substantial economic growth as it is rich in diamonds and other minerals. The country has a population of 7.4 million, and English and Krio are the primary languages. Both Islam and Christianity are practised.[1]
Political parties and tribal loyalties
[1] BBC News, ‘Sierra Leone country profile’, 5 April 2018, >
The US Department of State’s (USDOS) 2020 human rights report on Sierra Leone[2]reported that:
Strong ethnic loyalties, biases, and stereotypes existed among all ethnic groups. Ethnic loyalty was an important factor in the government, armed forces, and business. Complaints of ethnic discrimination in government appointments, contract assignments were common. Little ethnic segregation was apparent in urban areas, where interethnic marriage was common.
[2] United States Department of State
The 2018 USDOS Country Report on Human Rights Practices explains that ethnic affiliations strongly influence political party membership in Sierra Leone, with the two dominant ethnic groups of the Mende and Themne each accounting for approximately 30 percent of the population. The reports states that:
The Mende traditionally supported the SLPP and the Themne the APC. The Limba, the third most populous ethnic group, traditionally supported the APC. Other ethnic groups had no strong political party affiliations. The opposition APC party had repeatedly accused the SLPP of giving preference to populations in the Southeast, who are mostly Mendes, in filling government positions. As of August 30, ministers from the Southeast held 54 percent of cabinet positions, ministers from the South and East 25 percent, and those from the Western peninsular the remaining 16.
Presidential election - 2018
The All People’s Congress (APC), returned to power in 2007 after winning the election that same year. The APC then remained the ruling party of the country until Presidential elections on 4 April 2018 when, in close elections, the Sierra Leone People’s Party’s (SLPP) candidate Julius Maada Bio won the presidency.[3] Mr Bio is a former soldier who took part in a military coup in 1992. He narrowly beat the APC candidate, Samura Kamara.[4] In March 2021, following a by-election, the SLPP held 59 seats in Parliament and the APC 58 seats.
[3] Reuters, ‘Julius Maada Bio sworn in as new Sierra Leone President’, 4 April 2018
[4] BBC News, ‘Sierra Leone country profile’, 5 April 2018, type="1">
Sources indicate that there was some election violence in 2018, particularly after results were announced, but this was not on a large scale and nor does there appear to have been significant specific targeting as opposed to general conflict against opponents. The Carter Centre in a comprehensive report on the elections stated that there were several serious incidents of violence, but ‘for the most part the campaign was conducted in a peaceful manner’.[5] Most sources suggest that the 2018 elections were free and fair and although there was some conflict there was a low level of violence during the elections.[6] Some reports suggest that violence was mainly by gangs[7] often targeted at high-profile political members of the APC.[8] One report from 2018 referred to the low level of violence with supporters living side by side in peace during the elections, and for the second time since the civil war in 2002, achieving a peaceful transition between parties.[9] The Tribunal notes reports from 2021 indicating that high profile APC members continue to be subject to intimidation and threats.[10]
[5] Carter Centre, ‘Presidential and Parliamentary Elections in Sierra Leone’, 27 March 2018.
[6] Sources include United States Department of State, Sierra Leone 2020 Human Rights Report, 30 March 2021, Carter Centre, ‘Presidential and Parliamentary Elections in Sierra Leone’, BTI 2022 Country Report - Sierra Leone, Bertelsmann Stiftung, 23 February 2022; The Guardian, ‘Police intervene as opening of Sierra Leone parliament is overtaken by chaos’, 27 April 2018.
[7] APA News, ‘Sierra Leone Criminal gangs blamed for political violence’, 29 January 2018.
[8] The Sierra Leone Telegraph, ‘Opposition APC attacks Presidents Bio’s first one hundred days in office’, 26 July 2018.
[9] The Conversation, ‘Coverage of Sierra Leone’s election reflected stereotypes, not reality’, 22 April 2018.
[10] ‘Political Intimidation Hit APC Stalwart’, Global Times, 18 March 2021.
The Tribunal has also considered the Department of Foreign Affairs and Trade’s (DFAT) Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020 where at 4.15 under the heading of ‘Conditions of Returnees’ it’s reported that:
Those returning or who are returned to their country of origin (where that country is not ambiguous) will generally be able to acquire recognition of nationality on their return, even if they have lost their identity documents. Reintegration problems are reportedly largely financial, and centred on lack of state support, lack of jobs and housing, and loss of dignity and respect, rather than lack of documentation. However, if the country of origin is considered ambiguous, those involved will likely face problems, especially the children of those who have migrated.
Review hearing – 6 April 2023
The Tribunal hearing was conducted at the Brisbane Registry with the assistance of an interpreter in the Krio and English languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The Tribunal confirmed with the applicant that he understood the interpreter and then provided to the applicant a brief overview of the refugee and complementary protection criterion. The applicant then confirmed with the Tribunal that he understood the relevant statutory framework and concepts as to the refugee and complementary protection criterion.
The applicant indicated to the Tribunal that he relied upon his submission to the Tribunal dated 27 February 2023, referred to above at paragraph 20 and his Visa application and his Statutory Declaration of 11 May 2018, referred to above at paragraph 15, as outlining his claims. He further indicated that this material was contained a true and correct account of his experiences and that he did not wish to add or delete anything to those statements.
The applicant’s oral evidence was (in summary) and as relevant that after being invited to come to Australia as an [Occupation 1] he travelled to Australia from , [Country 1] where he had been living in March 2018. Whilst in Australia, he stated that he received a telephone call from his [Country 1] landlord informing him that his home had been burned down.
As a result of being told of the fire at his [Country 1] home and because of his fears of reprisal from SLPP members arising from his assistance to the APC during the 2018 Presidential election campaigns, he made an application for a Protection visa in Australia.
He explained that he had been brought up in Sierra Leone in [Freetown] and was of the Limba tribe. As such he and his family had been APC supporters. He stated that his parents were now both deceased. His father died [in] 2012 and his mother passed away [in] 2017. After their deaths, he remained in the family home in Freetown with his brother, sister, niece and his half-brother who came and went from the family home. He explained that after finishing school he completed some informal studies in [Field 1], and in 2014 he pursued some opportunities in [Field 1] in [Country 1]. In [Country 1] he worked [as an Occupation 1] and was later contacted by the APC to produce some political [material] for the 2018 Presidential elections. He [sent] this material to various [supporters] for them to [use the material] at APC rallies in Sierra Leone. He explained that some of the [material was later] posted on the internet in support of the APC campaign. However, he said that there was no organised distribution of the [material]. He said that on some occasions he had been thanked during the [rallies] for his [work] and on some occasions, he had been called to the stage and recognised for his [work].
He told the Tribunal that at one of the APC [rallies] at the National Stadium in Freetown he had been [acknowledged] and had attended the stage of the rally to accept such acknowledgement. He explained that when he was leaving the rally, he was in company with three of the [participants] and they were set upon by eight males who attacked them with steel rods, sticks and knives including a serrated knife. He showed the Tribunal [a] scar on his arm indicating that it had been caused when he was slashed by a serrated knife during the attack. He said after they had been surrounded and pushed around during the attack, he was able to run away and take refuge in a nearby building. As he and his companions knew of a nurse nearby, they went and sought treatment for the applicant with that nurse and then the following day went to the police station to report the attack. The applicant explained that he had no copies of his report or the written statement that made to the police. After making his statement he had been advised that they (police) would call him about their investigation, but that never eventuated.
After returning home from the police station, he had a discussion with one of his friends in the presence of his sister in which it was agreed that it was not safe for him to remain at the family home in Freetown. He then went into hiding at a friend’s address in [a neighbourhood], Freetown and stayed there for two-and-a-half days until he travelled by plane back to his home in [Country 1] using his own Sierra Leone passport. Under questioning he agreed that he did not experience any difficulties in leaving Freetown at the airport although he said he had worn a hat and hoodie to disguise himself so he would not be recognised by any SLPP supporters and/or members.
Later, in December whilst at home in [Country 1], he said that some hoodlums came one night and threw stones at his window. He went out of his house and as it was nigh- time he could only see three people and did not recognise them. He told the Tribunal that he believed that these people were SLPP supporters and/or members or agents of the SLPP. He said that shortly after this incident he was confronted when coming from his work in [Country 1] by four hoodlums who asked him to declare on social media that he was no longer a part of the APC. As he was afraid of these men and felt under pressure, he said that he would do so, but he did not make any public social media statements in accordance with their demand.
He explained that after he had been let go by the hoodlums and after he had not made any social media statements in accordance with their demand, he received a phone call on his mobile in which an unknown person told him they would burn his house down.
After arriving in [Australia], he said he received information from his [Country 1] landlord who had telephoned him and told him that his house had been burnt down and all his [equipment] had been destroyed. It was this information that caused him to make his application for protection.
In reply to the Tribunal’s questions as to the applicant’s family, the applicant informed the Tribunal that his brother, who is [age]-years-of-age had remained in the family home in Freetown after the applicant had been attacked when leaving the APC rally. He explained that his brother had owned his own business in the past but was now [studying]. He said his sister who is [age]-years-of-age also resided at the family home together with her daughter [age]-years-of-age. He explained that his sister worked for a local agricultural [project]. He said his half-brother also resided from time to time at the family home. He said that his brother, since the applicant’s departure for Australia, had on one occasion, approximately two-and-a-half to three years ago had been told by an unknown person that his brother (the applicant) can run and hide. The applicant told the Tribunal that he believes that the man making this statement to his brother may have been one of the SLPP members that had attacked him in 2017. Under further questioning, the applicant was unable to provide any evidence to support his suspicions in this regard. Under questioning, the applicant said that this incident involving his brother had occurred in [a neighborhood] about 500 to 700 meters away from the family home but that it had been the only incident involving his brothers and sister at the family home. He further conceded that notwithstanding his brother’s long time, and at times prominent support for the APC, his brother, sister, niece and half-brother have not been the subject of any other politically motivated threats and/or violence.
The applicant relayed another incident in support of his claims that he was in danger of harm by SLPP members and/or supporters in both Sierra Leone and [Country 1] because of his involvement in the production of APC campaign [material] for the 2018 Presidential election. He explained that he had been told by a friend or acquaintance that they had been present with a group of people when [someone showed his campaign material] to a group of people in Sierra Leone who were drinking and smoking. One of those present was reported to him as saying that the [originator] (the applicant) had been making [a mockery] of the President and when this [person] comes back to Sierra Leone, they will “mess him up”. Under questioning from the Tribunal, the applicant was not able to provide any further detail as to this incident or describe who had been present at this discussion but to say there were some SLPP members obviously there who still wanted to cause him harm.
He further told the Tribunal that as there is another election looming in Sierra Leone it would be unsafe for him to return there as the SLPP members and/or supporters are still angry at the [APC campaign material] which made a mockery of their candidate, the now President of Sierra Leone. When questioned as to whether the passage of time would have reduced his risk, he relied upon the forthcoming election to suggest he was now at greater risk.
The Tribunal raised the information contained in the Departments file and subject to a non-disclosure [certificate]. After being offered time to consider this matter in accordance with provisions of s 424AA, the applicant explained [that] his decision to apply for protection was because of his fears of harm arising from his attack in Sierra Leone and the stoning of his home and the threats that were made to him in [Country 1] and the subsequent burning down of his home in [Country 1].
The Tribunal, in accordance with the procedure provided for by s 424AA raised a number of statements that the applicant had made in his Statutory Declaration of 11 May 2018 as being inconsistent with some aspects of his oral evidence that he had provided to the Tribunal during the hearing. After providing the applicant with the opportunity to consider these mattes and to have further time to respond, the applicant provided the following responses to the matters raised:
·At paragraph 9 of his Statutory Declaration, he had indicated that after the attack upon himself and others outside the APC rally at the National Stadium, he had declared that he went immediately to [a] Police Station in Freetown. It was highlighted to the applicant that his evidence at the hearing was that he had gone and sought the assistance of a nurse and then on the following day attended the police station.
The applicant told the Tribunal in reply that when he had completed his Statutory Declaration, he had done so with the assistance of Legal Aid and there may have been some confusion about the order of events as they were reported in his Declaration. When further questioned in relation to the manner in which his Declaration had been prepared and that it was likely at that time that he would have had a clear recollection of the matters included in his Declaration, he was unable to provide any further explanation as to this inconsistency.
The applicant was then asked whether he was familiar with the contents of his declaration and that he was satisfied that the remainder of that Declaration was true and correct to which he replied to the effect that the Declaration was a truthful and an accurate record of these matters. He further stated that he was not confused about the incidents but just maybe the times and order of things may not have been correct.
·The applicant was then told that at paragraph 10 of his Declaration he had indicated that he had reported the attack outside the stadium to the APC [Official 1], however he had not given that oral evidence to the Tribunal.
His reply was that he did report it to [Official 1], but it had just escaped his mind today.
·It was also drawn to the attention of the applicant that at paragraph 14 of his declaration he had said that he came to find out through one of the [supporters] that his attackers had contacted a gang in [Country 1] to harass and intimidate him. The Tribunal indicated that this statement had not formed part of his evidence at the hearing.
The applicant’s reply was that that was correct and that he did not know how the people who had thrown stones at his address in [Country 1] and later threatened him had obtained his contact information. Further he stated that he did mention that these people were hoodlums, but he did not mention that it was [a supporter] who had told him about this. When questioned as to which [supporter] had warned him, he said there were a lot of [supporters] and that it had been one of the APC [supporters], but he just couldn’t recall their name at the moment.
·In relation to paragraph 15 of the applicant’s declaration, the Tribunal highlighted that he said that he had been approached by one of the most dangerous gangs in [Country 1]. However, at the hearing, he had made no mention of this ‘most dangerous [Country 1] gang’ and had only said that he saw three people outside his home when rocks had been thrown and that later some people had approached him.
In reply he stated that he believed his attackers in [Country 1] were members of [Gang 1] and that he had recognised them as such members because they wore their uniform that being [specified]. When further questioned as to why the applicant had not earlier identified his purported attackers in [Country 1] as members of this notorious [Gang 1]. His reply was that he had stated that these persons had been members of a most dangerous gang but did not think he needed to identify the gang. When the Tribunal raised its concerns as to the implausibility of his explanation the applicant repeated his reply by saying that he did not think their name [was] important and he had described them as ‘hoodlums’.
·The Tribunal further identified the applicant’s statement at paragraph 19 of his Declaration was that whilst in Australia he had received an email from his cousin telling him that the SLPP had won the election and that some mail had come to his brother’s house stating that they (SLPP) were looking for him and that his brothers had gone into hiding as they (SLPP) had been threatening them. The email had also informed the applicant that his house in [Country 1] had been burnt down. The Tribunal highlighted that the applicant’s evidence at the hearing was to the effect that he had been told about the fire at his house through a telephone call from his [Country 1] landlord and that he had also not made any mention during the hearing of his brothers having had to go into hiding.
In reply the applicant said he did receive an email and had been contacted by his brother, not a biological brother, but rather a friend known as [Name 1], and that when he spoke of this email, and his cousin, he was referring to this friend and brother [Name 1] who was a distant family member. He further explained that after the email he had also later been contacted by his landlord from [Country 1].
He further said that in the earlier stages his brothers had gone into hiding when he was in Freetown after the attack upon him at the stadium. He explained that when he left Freetown for [Country 1] and later when he was in Australia, there had been some conflict during the election campaign and that is when his brothers went into hiding as the SLPP were looking for his younger brother who was known as a strong APC supporter. Again, under questioning the applicant conceded that since the election his brothers and his sister and her daughter have returned to the family home and that they have not been the subject of threats and/or violence at the hand of any SLPP members and/or supporters. When told by the Tribunal that it would seem that he, now given the passage of time, could also return home, he stated that it was different for him as he was a primary target. In reply to this statement the Tribunal highlighted the applicant’s evidence that his brother was viewed as a strong APC supporter but had been able to remain in the family home. The applicant’s reply was that his role had been a much higher role that that of his younger brother.
As to his current circumstances in Australia he informed the Tribunal that after he came to Sydney in 2018, he obtained employment at the [a workplace]. After moving to Brisbane, Queensland in 2019 he has recently commenced employment and studies in the [Occupation 2] industry. He told the Tribunal that he is presently employed as a [Occupation 2] and enrolled in a [Occupation 2 course].
He further stated that after he moved to Brisbane in 2019, he met a lady with whom he formed a relationship and married and together they have a son. His son, [was] born in [year] and is now about [age] old and resides with his mother as the applicant and his wife separated in September 2022. He explained that he sees his son three times a week and that his wife and son are Australian citizens.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Sierra Leone. He has provided a copy of his Sierra Leone passport to the department. Based on this material the Tribunal finds that the applicant is who she says he is, and a national of Sierra Leone. Sierra Leone is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis

The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[11] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[12] This is consistent with the established proposition that it is for the applicant to make his or her own case.[13]
[11] Section 5AAA of the Act.
[12] Ibid (with effect from 14 April 2015).
[13] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[14] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[15] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[14] Fox v Percy (2003) 214 CLR 118.
[15] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[16] A similar approach is taken in the department’s Refugee Law Guidelines[17] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[18] which provides useful guidance for this Tribunal.
[16] SZLVZ v MIAC [2008] FCA 1816 at [25].
[17] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[18] UNHCR Handbook, re-issued February 2019 at [203]–[204].
Political opinion (actual and/or imputed)
Although the Tribunal found that the applicant’s oral evidence at the hearing was broadly consistent with his earlier statements in his Visa application and more importantly, his Statutory Declaration of 11 May 2018, the applicant’s evidence was generally vague and non-specific in relation to significant events and the sequence of their timing. The Tribunal finds it implausible that the applicant would not have been able to provide a detailed account including the date and time of the attack upon him outside the National Stadium after a supposed significant and large APC rally. Equally, given this purported attack involved multiple attackers, all armed, it seems inconsistent that the only injury he received was a knife wound to his arm. Further given this purported most serous event which resulted in him seeking medical attention from a nurse could not be recalled in detail when conveyed to the Tribunal, the Tribunal is not satisfied that the applicant has provided an accurate description of this incident.
Notwithstanding some of the minor inconsistencies that the applicant was questioned about in relation to the differences and/or omissions in his oral evidence at the Review when compared to his account in his Statutory Declaration of 11 May 2018. The accumulation of these inconsistencies which arose during the Review hearing and are outlined above at paragraph 41 cast serious doubt on the reliability of the applicant and his account of the attack upon him after the APC rally at the National Stadium, the alleged stoning of his [Country 1] home and the supposed confrontation with alleged [Country 1] gang members purported by the applicant to have been acting as agents for the SLPP.
On the evidence before the Tribunal, the Tribunal is satisfied that the applicant was born and raised in Sierra Leone, is of Limba tribal heritage and together with his family, has been a supporter of the APC. The Tribunal is further satisfied that the applicant after completing his schooling in Sierra Leone, moved to [Country 1] in 2014 to pursue a career in [Field 1]. It is also accepted by the Tribunal in 2017, prior to the 2018 Sierra Leone Presidential elections that the applicant was engaged to produce [material] for the APC and that [this was used] at APC rallies and concerts in 2017 and in early 2018.
For the reasons above and relying on the inconsistencies in the applicant’s evidence as put to him in accordance with the prescribed procedure in s 424AA of the Act as outlined above at paragraph 41 the Tribunal is not satisfied that the applicant was the subject of an attack upon himself and others on an unknown date and time outside the Freetown National Stadium after a APC rally in which some of his APC campaign [material was used]. It is further not accepted that the scar on the applicant’s forearm that was shown to the Tribunal at the hearing is a result of that attack and a knife wound from a serrated knife as claimed by the applicant. The Tribunal is also not satisfied that the applicant reported this incident to the police in Freetown and that he left Freetown for [Country 1] after going into hiding for several days and that that was because of his fears of harm from SLPP members and/or supporters.
The Tribunal, for the reasons given above, the inconsistencies of the applicant’s evidence and the vague nature of same is not satisfied that the applicant’s home in [Country 1] was stoned by [Country 1] gang members who later threatened him and were supposedly acting on behalf of the SLPP. The Tribunal equally, for the same reasons, is not satisfied that the applicant’s [Country 1] home was burnt down by [Country 1] gang members acting on behalf of the SLPP and/or SLPP members and supporters and that he was notified of this incident when in Australia by either an email from relatives and/or a phone call from his purported [Country 1] landlord.
The Tribunal is not satisfied that the applicant is a consistent, reliable or truthful witness in this regard and that he did not nor does not have a significant APC supporter profile and anti SLPP profile such that he would be of interest to the SLPP members and/or supporters. Given the relevant available country information as outlined above at paragraph 25 and given the applicant’s limited anti-SLPP actual and/or imputed profile the Tribunal is not satisfied that the applicant has been and would be targeted by SLPP members and/or supporters for his involvement in the 2017 and 2018 [APC campaign rallies] for the 2018 Sierra Leone Presidential elections. As such the Tribunal finds that the applicant’s fears of harm arising from his claims of being the subject of SLPP reprisals and violence are not well-founded.
Failed asylum seeker
Although not specifically claimed by the applicant the Tribunal has also considered the issue of the applicant returning to Sierra Leone and/or his former home in [Country 1] as a failed asylum seeker. Given the country information above at paragraph 26 together with the applicant’s past employment [history] both in Sierra Leone and [Country 1] and that his brother and sister have been able to support themselves and his niece whilst maintaining and remaining in the former family home in Freetown and could provide assistance and support to the applicant upon his return to Sierra Leone. The Tribunal is not satisfied that the applicant would in the reasonably foreseeable future face a real chance of persecution if he was to return to Sierra Leone and/or his former home [Country 1] for reasons of being a failed asylum seeker.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims in their entirety and having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the inconsistencies in the applicant’s evidence the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. The Tribunal having found the applicant to have been an unreliable and untruthful witness is also not satisfied that the applicant meets the complementary protection criterion as the Tribunal has rejected the evidence and claims of applicant in their entirety for a lack of credibility. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criterions and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Sierra Leone.
MINISTERIAL INTERVENTION
The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under s 417 of the Act. The guidelines indicate that the Minister will generally only consider exercising his or her public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning Ministerial intervention provides, as a relevant factor, ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’.
In this regard, the Tribunal acknowledges the personal circumstances of the applicant including his past relationship with an Australian citizen which resulted in the birth of his Australian child, [name deleted] in [year]. The Tribunal notes that the applicant’s Australian child will remain in Australia in the care of his Australian mother when the applicant is returned to Sierra Leone and that there may be expected and likely psychological harm that may arise for both the applicant and his Australian child, if the primary applicant was to return to Sierra Leone.
When considering all of the applicants’ circumstances, the Tribunal considers it appropriate to support the applicant’s request to remain in Australia on a permanent basis so as he and his Australian child may continue their contact and parental relationship in Australia. In considering the applicants case and the Ministerial guidelines relating to the discretionary power set out in PAM3 Minister’s guidelines on Ministerial powers: ss 351, 417, 501J of the Act, and noting that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so, the Tribunal considers that the circumstances of the applicants’ case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister.
Such circumstances are:
·Compassionate circumstances regarding the psychological state of the applicant and his Australian child (an Australian citizen), arising from the possible break-up of their family unit if the applicant was returned to Sierra Leone; and
·Exceptional, economic, scientific, cultural or other benefit that would result from the person being permitted to remain in Australia. The applicant presently works in the [Occupation 2] industry and is enrolled in a [Occupation 2 course]. These services are critical to the Australian community and presently the Tribunal understands that there are severe work-related vacancies in this area in which the applicant is working and obtaining qualifications.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member

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

[2023] AATA 2276

11 April 2023

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Natural Justice

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Standing

Statutory Construction