1832013 (Refugee)

1832013 (Refugee) [2023] AATA 3788 (4 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Oumaru Kamara
CASE NUMBER: 1832013

COUNTRY OF REFERENCE: Sierra Leone
MEMBER:Luke Hardy
DATE:4 September 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 September 2023 at 1:53pm
CATCHWORDS
REFUFEE – protection visa – Sierra Leone – political opinion – particular social group – LGBTI advocacy – murder of an openly gay brother – verbal and physical abuse – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [named], is a citizen of Sierra Leone. He arrived in Australia [in] September 2017. The visa was valid for 18 days. [The applicant] overstayed that visa and lodged a PV application on 27 September 2017. The delegate refused to grant the visa on 12 October 2018.
[The applicant] appeared before the Tribunal on 4 August 2023 to give evidence and present arguments. He offered to present a witness, but on the basis of the witness not having known him until after he came to Australia, I proposed that there might not be any value in hearing from him This perception was not contested. I did not take evidence from the witness.
The Tribunal hearing was facilitated by an interpreter in the Krio-English medium.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The key issue in this case is whether, on accepted evidence, [the applicant] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
[The applicant] is an ethnic Temne Anglican Christian who lived with a de facto female partner and their [number] children, [details deleted]. [The applicant] claims to be able to speak Krio, Temne and English, but not to be able to read or write any of these. He essentially claimed to be illiterate. He claims never to have worked for a salary, having only worked as a volunteer and in odd jobs such as [occupation 1] and in the trading of miscellaneous goods.
[The applicant] spent most of his life in [Town 1], a suburb of Freetown.
[The applicant] claims he was a “volunteer messenger” for [Agency 1] from 2015 to September 2017. He claims he never received any pay for this attachment. In his original PV application, [the applicant] provided the following residential history:
·1987–2014: [Town 1], Freetown, Sierra Leone.
·2014–March 2017: [Town 2], Freetown, Sierra Leone.
·March 2017–May 2017: [Town 3], Sierra Leone (near [border)).
·May 2017–3 September 2017: in hiding, staying with friends in [Town 2], Freetown.
In his statement of claims, [the applicant] indicated that he relocated to [Town 3] in March 2017. He claimed that he subsequently went into hiding in [Town 3] after being attacked for engaging in LGBTI (or Lesbian, Gay, Bisexual, Transgender, Intersex, etc. ) advocacy. He indicated that “colleagues” from [Agency 1] helped him to get a passport while he was hiding in [Town 3]. He claimed he returned to Freetown around May 2017 in order to get his passport, visa and plane ticket.
In the same statement of claims, [the applicant] claimed he feared being persecuted by members of the community at large in Sierra Leone for reasons of his work as an activist and sympathiser with the LGBTI community. He claimed he was moved to become involved after the mob killing of a brother who, he said, had been openly gay. He provided no evidence in support of a brother having died, let alone violently. He claimed he reported his brother’s murder to police who took no action due to institutional stigmatisation of homosexuality.
[The applicant] claimed that people who publicly advocate human rights for LGBTI people in Sierra Leone are usually assaulted and even killed. Nevertheless he claimed he used to go about in public distributing pamphlets espousing support for LGBTI persons. He clamed he relentlessly soldiered on, in the face of constant verbal and physical abuse. He claimed he visited towns outside of Freetown and often had meetings with LGBTI persons in cafés and around [venues]. He claimed he used to advocate in the media but was seldom published. He provided no evidence in support of efforts to advocate through the media.
[The applicant] claimed he joined the “[Organisation 1]” in August 2015 as a volunteer. He claimed he did so explicitly for the purpose of being able to reach a wide audience of [the agency’s clients] with his pro-LGBTI advocacy. He said that some personnel in [Agency 1] were also gay and individually supported him and donated to his work. He has provided no evidence to support this assertion.
[The applicant] claimed that he organised a meeting in March 2017 to bring together homosexual and heterosexual people in a constructive dialogue. He claimed the meeting discussed the death of his brother and the death of another gay youth called “[Mr A]”. He claimed he knew of the risk of organising anything bigger like as a protest gathering. He provided no material in support of this claim about a meeting convened in March 2017.
[The applicant] claimed the meeting was disturbed by a gang wielding sticks and stones. He claimed he was beaten to the ground. He claimed he was able to escape from the gang, a member or members of which claimed to have killed “[Mr A]”. He has provided no evidence attesting to or certifying any claimed injuries.
Notwithstanding that he purportedly knew at the time that the police in Sierra Leone stigmatise LGBTI persons and sympathisers, [the applicant] claimed he reported the attack on his meeting to the police in [Town 1], where the meeting had purportedly been held. He claimed the police told him not to come to him again or they would do to him explicitly what had happened to “[Mr A]”.
[The applicant] claimed he then fled into hiding in [Town 3] near the [border]. He claimed he left his partner and [children] at home in Freetown, notwithstanding great fear for their lives. He claimed he still feared for them. He also claimed he had not been able to contact his parents in Freetown or any of his [surviving] adult siblings. He provided no evidence of any efforts to contact family back home.
[The applicant] claimed that while he was hiding in [Town 3] to save his life he still put up posters espousing LGBTI rights. He provided no evidence in support of this claim. He claimed he was attacked again, which claim is also unsupported. He claimed he then contact his “colleagues” in the “[Organisation 1]” and asked for help. He claimed the [Agency 1] helped by applying on his behalf for a passport and including him as a [member of] a [professional delegation] it was about to send to [Australia]. Essentially, he claimed that [Agency 1] did him a favour at its own likely considerable expense. On the evidence as given, [Agency 1], understanding that [the applicant’s] life was in danger sought nothing in return and did not expect him to remain with the [delegation] in Australia or to come back to Sierra Leone in the circumstances.
[The applicant] claimed he received death threats in Sierra Leone will be persecuted in the event of return there because he is too well known there for his LGBTI activism. He provided no evidence in support of this claim to fame or notoriety.
[The applicant] claimed he would be unable to relocate given the ubiquity of homophobia in Sierra Leone and would not be able to avail himself of effective state protection.
Evidence given to the Tribunal
[The applicant] submitted several letters of support from people and agencies acquainted with him in Australia, including friends, [two organisations] and a Sierra Leonean community organisation, all generally attesting to his good character and tireless work as a volunteer.
[The applicant] re-submitted his original statement of claims. He also submitted a reference letter from an employer, [named].
According to a submission lodged with the Tribunal by [the applicant’s] adviser, the delegate found that :
a)The applicant was not consistent or credible in relation to the extent and nature of his activism;
b)The applicant did not know Kiwanis supported LGBTI rights. If the applicant was genuinely involved in LGBTI activism, he would have been able to identify Kiwanis as a pro-LGBTI organisation when questioned;
c)The applicant was unable to demonstrate a basic knowledge of how the law criminalises homosexuality in Sierra Leone, or about any reports on LGBTI issues;
d)The applicant was unable to identify any other individuals or groups engaged in LGBTI activism;
e)The applicant’s claim to have worked as a volunteer at [Agency 1] because it provided him with a platform to advocate for LBGTI rights was vague and unimpressive; and
f)The applicant’s claim concerning harm and mistreatment experienced in Sierra Leone was unconvincing and his activism was fabricated.
Relevant to this, I located information[1] about the Kiwanis being a social justice in Sierra Leone that organised an LGBTI awareness campaign in 2013.
[1] “Sierra Leone: Spat upon, I still became an LGBT activist,” Erasing 76 Crimes, 9 July 2013,
At the Tribunal hearing, I asked [the applicant] to tell me who were the Kiwanis. He said they are an LGBTI advocacy group. I asked him if he had ever had any liaison or involvement with them and he said, “None.” I asked him why not and he said, “Because I didn’t.” I asked him if he tried to become involved with that group and he said he did. I asked him why he did not succeed, and he said that one of the Kiwanis’ members told him that the organisation had no involvement with LGBTI people or issues. He said he has since realised that what he had been told by that person had been a lie. Recalling the submission cited above, I invited [the applicant] to comment on whether, at the time of his PV interview with the delegate, he had known whether the Kiwanis were involved with LGBTI issues or not. He said he had panicked during the PV interview. He indicated here that panic was reason for why he had provided incorrect information about the Kiwanis group to the delegate.
I asked [the applicant] if he had any documentary evidence relating to the death of his brother. He said there was a death certificate that he used to have but did not bring with him.
I asked for detail about the March 2017 meeting. [The applicant] said he invited “two or three people” because he believed they might be gay. He said the purpose of the meeting was to discuss the death of his brother three years prior and also the death f the youth “[Mr A]”. I asked [the applicant] if those “two or three” people turned out, in fact, to be gay and he said they did. I asked him why he referred to these people, who he apparently invited to a very small gathering, as “two or three” people. It seemed reasonable to expect that he should have been able to give an accurate number. I asked if they were “two” or “three”. In reply, [the applicant] said that they were the ones he had identified as being gay. I asked again why he was so unspecific in the circumstances as to whether there were two or three such persons. In reply, he said he could not remember because the meeting was held a long time ago. I expressed some surprise at this response and explanation for it, as the meeting was purportedly a turning point in [the applicant’s] life in Sierra Leone. In reply, [the applicant] said he invited “two or three people” and that other people also came to the meeting.
I put to [the applicant] that I was concerned that he could not recall whether two or three people, each of whom he construed and then confirmed to be gay, were at the meeting. He did not resolve this question.
Referring to the known risk described in his original statement of claims, I asked [the applicant] to describe in detail what steps and measures he took to secure the meeting so that it could proceed safely. In reply, he said he knew there was a high risk but did nothing about security. I asked why not and he said it was a matter of finances. He said he took the risk all by himself. I put to him that, on his evidence, this would not have been true, as there were “two or three people” taking risks by opening up to him at the meeting. In reply, he said, “Yes.” I asked again how many people in total were at the meeting and he said he could not remember because it was held a long time ago. I asked him then for an approximation and he said he could not remember. I asked if the gathering numbered perhaps less than ten and he said he could not remember. I then asked if it might have attracted more than twenty and he said he could not remember. I asked him to describe the location and he said it was a room like the Tribunal’s hearing room. I asked him how many people might have fitted into such a room and he said he could not remember “exactly”. I asked again, then, for an approximation, and [the applicant] said he could not give one as he could not recall. I asked him the address of the venue and he said he could not remember, as it had been a long time. He said he recalled it had been in [Town 1] district. His evidence here did not strike me as helpful. I considered whether time and memory and/or trauma might help explain the vagueness of this testimony but I am not satisfied on the evidence before me that it does.
I asked [the applicant] if the subject of the “two or three persons” being gay ever came up in discussion during the meeting, and he said, “No.” He said the only topic was the deaths of his brother and “[Mr A]”. This evidence does not help explain [the applicant’s] having been able to ascertain during the meeting that these “two or three people” were, in fact, gay.
I asked [the applicant] what specific context or objective was discussed regarding the two deaths mentioned above, and he merely generalised: “The meeting was to sensitise people. Anyone can belong to what he wants … [and] can be gay if he wants.” I asked [the applicant] if he was the meeting’s only speaker and he did not answer the question on its point, saying instead that he was its leader and organiser. I drew attention to the digression and he said someone else spoke. I asked what the other person spoke about and he said he spoke about the same thing. I asked who this person was and he said it was “one of the gays”. I asked the name of this person and he said he could not remember. He said they had not stayed in touch.
I asked [the applicant] how long it takes to travel between [Town 1] or Freetown and [Town 3]. He said he did not know. I asked him to comment on the perception, which seemed reasonable in the circumstances, that he had never made a journey from Freetown or thereabouts to [Town 3] or back. In reply, [the applicant] said, “I know I went.”
I asked [the applicant] for information going to his familiarity with [Agency 1] and his being well-enough known there to have attracted philanthropic intervention out of concern for his safety.
I asked [the applicant] how he managed to survive working around two years or so merely as a volunteer. He said he received tips.
I asked [the applicant] to describe his specific duties and activities at [Agency 1] and he mentioned “[generic activity names]”. I put to him that he did not seem to be addressing the point of my question and he said he was coming to that. I then suggested that there was no need for him to come to it from such a distance. He then said that whenever [Agency 1] organised activities like [one he mentioned] they would give “us” money to “build a stage” ( presumably for [specific events]). This sounded like construction work. I asked if there were other specific activities and [the applicant] said, “We organised [ongoing events].” I asked him if such administration was really delegated to volunteers and he said, “I was part of the volunteers who did it.” When I expressed surprise, [the applicant] went on to say that the volunteers assisted paid staff.

I asked [the applicant] to state his job title at [Agency 1] and he said it was “LGBTI activist”. I said he cited a different role in his PV application. Eventually he said “messenger”. I said it seemed therefore odd that when I asked him to explain his specific duties, he had begun by generalising about [generic activity names]. He said I reply that “stage” building was a minor aspect pf his work. I then asked why he went to that topic first, and he said I had asked him to describe the kind of work he did for tips. I said this was not correct.
I asked [the applicant] to describe the kind of activities he performed as a messenger. He said he would go to the post office to collect letters and parcels. He said he was sent on other errands by directors and bosses. I asked him if he was ever required to show some kind of authorisation or ID at the post office and he said he used to show his national ID and sign. I asked how this would ever prove to the post office staff that he was sent from [Agency 1] and he said the director “usually gave me his business card.” I said I was surprised this was not his first answer to my question on this topic.
I asked [the applicant] to describe the building in which [Agency 1] is housed. He gave quite factual information about its address and its proximity to a [venue]. He could not remember how many floors there were. I expressed surprise that a messenger could not recall how many floors there were in a building where he had carried messages, and he said it was all so long ago. I asked if this was the only building housing [Agency 1] offices in Freetown and he said he did not know. This too seemed a strange answer for [an Agency 1] messenger of two years’ standing to give. I showed [the applicant] a google map of [the Agency 1] headquarters with its distinct wings and asked him to describe what was in each and he said he could not say because he was not good with maps. I asked how useful a messenger would be if he or she could not follow a map and he said he did everything manually. A I asked him what he meant and he said that staff would show him what a building looks like (in a picture?), tell him if he had to go to the top of a street or somewhere else and then leave it to him to go out into Freetown and look for the building. His evidence here struck me as far-fetched and fanciful.
I asked [the applicant] the address of the [Agency 1] headquarters and he said he did not remember. He did correctly state that there is a hostel for [specified groups] beside [a venue].
I asked if people need ID passes to access the [Agency 1] building and compound. He said some people have then and others do not, unlike how it might be in Australia. I asked him why the [Agency 1] would have such a system only for some, and he said that the rule does not cover everybody. I asked him f he had one and he said he did before, but no longer had it.
I asked [the applicant] to give me the date on which he was told he was to be assigned and accredited to the [delegation]. He said he could not remember. I asked him what specific role he had been even nominally given, and he said “represent [Agency 1]”. I asked what specific activities was he told he should perform with the delegation, and he said, “Day-to-day work with [the] [members].” I said his answer lacked detail and he said it was his answer all the same.
I asked [the applicant] if he was aware of a practice involving corrupt additions of irrelevant hangers-on to international [delegations] by Sierra Leonean [officials] and he said he was but added he knew nothing of this directly. I asked him if a large proportion of [his] delegation members had overstayed in Australia and he said he did not know. I asked him to confirm that he had never read or heard about this and he said he had heard about it, which contradicted his previous answer. When I put to him that his evidence on this issue was inconsistent he said he meant to say he had never personally witnessed any other absconders.
I put to [the applicant] that I would have to make conclusions in this matter as to whether I was satisfied that he had ever had any meaningful involvement with [Agency 1]. He said he did use to be engaged by [Agency 1] as a volunteer. I asked him why [Agency 1] sent volunteers to Australia at its own expense when there would have been professional and accredited staff to send., and he said that was a matter for the Director.
The adviser spoke at the end of the hearing. He said I should pay attention to the evidence about the March 2017 meeting and the evidence about [Town 3]. I undertook to do that.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220 .
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[5] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I accept that [the applicant] is an adult male Christian of Temne ethnicity who most recently resided in and near Freetown.
I find that [the applicant’s] claims relate to the s.5J(1)(a) criterion “membership of a particular social group” which can reasonably be characterised as “activists in support of LGBT rights in Sierra Leone. I accept that to some extent this characteristic may be an imputed “political opinion” in Sierra Leone.
I have considered whether trauma or fear or some other factor beyond [the applicant’s] control might have affected his capacity to give cogent and detailed information at the Tribunal hearing. I am not satisfied on the material before me that any such factor has impeded him.
[The applicant’s] evidence of having been attached to [Agency 1], even as a volunteer, let alone for around two years, strikes me as having been vague, inconsistent, digressive, often far-fetched (as in the explanation about [Agency 1] engaging a messenger who was incapable of finding an address on a map) and generally improvised in the face of potentially challenging questions. There were several instances during the hearing when I sought more detail, or resolution of seeming inconsistency, from [the applicant] and he explicitly declined to provide any. Ultimately, on the evidence before me, I am not satisfied that he was ever assigned at [Agency 1], let alone with its [delegation], even as a volunteer.
This is a significant finding for a number of reasons: it leaves me not believing that [the applicant] sought a place in [Agency 1] as a means of creating there a platform for public promotion of LGBT rights; it also leaves me disbelieving that he had a sympathiser in [Agency 1] who offered to get him quickly and indefinitely out of Sierra Leone due a backlash against his claimed activism.
I recall [the applicant] acknowledging that [Agency 1] in Sierra Leone has a reputation for adding friends and hangers-on to touring delegations at a price. Although I recall his telling me that he was not included in his delegation in this fashion, and that [Agency 1] paid for all his travel to Australia (it would have to have involved a return travel booking or, logically, the relevant Australian mission would not have issued a visa), I do not believe him. I conclude that [the applicant] somehow raised the money for his own individual travel to Australia and exploited some connection in [Agency 1] to put his name up to Australian authorities so that he could be issued with a visa.
I am all the more confident in this conclusion because of the unsatisfactory nature of [the applicant’s] evidence about having fled to [Town 3] near the [border]. It is reasonable to expect that a person who had travelled from near Freetown to [Town 3] and back would be able to give an approximate impression of the time taken to travel in either direction, but [the applicant’s] answers to my questions on this topic leave me concluding that he never made either journey, let alone for the reasons claimed. [The applicant] also said something about how he spent his time “hiding” in [Town 3] that, in the context of his claimed circumstances at the time, struck me as being far-fetched and illogical: he said he continued erecting posters in this, a relatively remote and therefore likely more conservative town, after fleeing death threats in [Town 1] and Freetown. I find that the whole body of evidence about taking temporary refuge in [Town 3] is a fabrication.
[The applicant’s] claims about having become a committed activist for LGBT rights after the murder of a “gay” brother are entirely unsupported. There is no evidence of the brother having been murdered, let alone in connection with being gay. Hence I am sceptical as to [the applicant’s] claim about some Damascene conversion to the cause he claims to have espoused. In addition, he has nothing to show for it in that, as just noted, his claims are entirely unsupported. His evidence about having sought involvement with the Kiwanis is vague and inconsistent. His evidence about the meeting he purportedly convened in March 2017 is inexplicably vague and illogical. His claim about having invited two men he guessed and later confirmed to be gay without the subject of their sexual orientation having ever been discussed, struck me as pure, baseless improvisation. I do not accept that any such meeting ever took place. It follows that I do not accept that [the applicant] was ever targeted for ever having held such a meeting or for any other pro- LGBT activities. I give no weight to the reference to the person “[Mr A]”. On the evidence before me, I find that the claim about photographs [the applicant] took, of posters he posted, having disappeared in a broken mobile telephone was pure fabrication. Ultimately, I give no weight in this matter to [the applicant’s] claim about having a deceased brother beyond accepting that there may be one brother of his who died in circumstances irrelevant to the claims in this matter.
On the evidence before me, I do not accept that [the applicant] has any potentially significant sympathy with LGBT rights in Sierra Leone or anywhere else. He is not a reliable witness the present matter.
There are two claims that potentially arise on the facts in this matter, although [the applicant] has not himself made them: one is an imputed “political opinion” claim relating to whether a person faces a real chance of being persecuted for having absconded from a Sierra Leonean government-sponsored [delegation] abroad; the other, an imputed “political opinion” claim about being a “failed asylum seeker” returning from abroad.
[The applicant] has not claimed that he fears being persecuted in Sierra Leone for having absconded from the [delegation] when it visited Australia in 2017. I observe that doing so would, in fact, conflict with one of his core claims, being that he was offered a spot in the delegation at short notice to help him escape persecution in Sierra Leone. This essentially means that the [delegation] would not have expected him to return any time soon, if ever, so it is hard to conceive that he would have been missed in any government quarter back home in Sierra Leone. By his own words, he was a charity case, as it were, was assigned no duties in the delegation and by his evidence, not even coached in any detail in how to look like he had a role.
In any event, no evidence before me suggests that [the applicant] faces a real chance of being persecuted in Sierra Leone for having “absconded” from an official [delegation] here. I find that I am not satisfied that he faces a real chance of being persecuted for having “absconded” from the [delegation] during its visit to Australia in 2017.
There is no evidence before the Tribunal that satisfies me that [the applicant] faces a real chance of being persecuted in Sierra Leone for reason of being a failed asylum seeker.
[The applicant] has made no claims about his stated religion or ethnicity.
On the evidence before me as a whole, I am not satisfied that [the applicant] faces a real chance of being persecuted in Sierra Leone in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.
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).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. Relevant to this, s.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 (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Sierra Leone, I find that Sierra Leone is the receiving country in this matter.
[The applicant’s] claims to complementary protection are essentially the same as his refugee claims. Those claims have failed due to a comprehensive lack of credibility and for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant’s] protection claims can no more succeed as complementary protection claims than they have as refugee claims.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Sierra Leone, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Conclusions
For the reasons given above the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member
- Extract from Migration Act 1958

ATTACHMENT
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 3788

4 September 2023

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