1910899 (Refugee)

[2019] AATA 4562

1910899 (Refugee) [2019] AATA 4562 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910899

COUNTRY OF REFERENCE:                  Liberia

MEMBER:Michael Hawkins

DATE:3 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 03 July 2019 at 9:03am

CATCHWORDS

REFUGEE – protection visa – Liberia – particular social group – long absent returnees – westernised – no family or support networks – fear of those who killed parents – Kpelle people – delay in applying for protection – criminal record – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZRSN v MIAC [2013] FCA 751
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 April 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Liberia, applied for the visa on 4 December 2018. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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 themself 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).

6. 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.  

7. 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

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. The applicant is a [age] year old man from Monrovia, Liberia.

11. On 19 September 2018, the applicant’s elder sister provided a letter of support to the Department. In the letter, the applicant’s sister explained that eyewitnesses reported that the applicant’s mother was killed in February 2000 when his mother was in [a city]. This was a “Liberians United for Reconciliation and Democracy” (“LURD”) area and the applicant’s mother was suspected of being a rebel.

12. In that same letter, the applicant’s sister states that Charles Taylor’s forces came to the family home and took the applicant’s father, accusing him too of being a rebel supporter. The applicant’s sister states that this was the last time she and the applicant have seen or heard of their father.

13. The applicant arrived in Australia [in] April 2007 pursuant to a Refugee (Sub-Class 200) Visa.

14. On 7 December 2016, the applicant’s Refugee (Sub-Class 200) Visa was cancelled under Section 501 of the Act, on character or related grounds.

15. On 23 December 2016, the applicant was transferred to immigration detention.

16. On 1 August 2018, the cancellation of the applicant’s Refugee (Sub-Class 200) Visa was not revoked.

17. On 23 October 2018, the Tribunal (differently constituted) affirmed the revocation of the applicant’s Refugee (Sub-Class 200) Visa.

18. On 5 December 2018, the applicant commenced proceedings for judicial review of his Refugee (Sub-Class 200) Visa cancellation.

19. On 4 December 2018, the applicant applied for a Protection Visa (Sub-Class 866).

20. The applicant has been charged with multiple offences in Australia since 2011 and sentenced to terms of imprisonment between 2014 and 2016. The Tribunal has not itemised the offences and sentences as they are not material to the assessment of the refugee and complimentary protection criteria.

21. The applicant attended an interview with the delegate on 9 January 2019, and provided copies of additional information in support of his claims prior to this hearing as listed in Evidence below.

    Claims:

    Summarised from written claims:

22. The applicant claims he left Liberia as war broke out when he was approximately [age] years of age.

23. The applicant claims his father was killed a few days before the war because the rebels claimed that he was “associated with a particular group”.

24. The applicant claims he also lost contact with his mother.

25. The applicant claims he fled on foot with his elder sister and met up with others in the bush.

26. The applicant claims that he and his sister followed people fleeing to [Country 1] for a few months, then fled again to [Country 2] where they lived in a refugee camp.

27. The applicant claims that he has no remaining family in Liberia. He claims he came to Australia with his sister and his sister’s daughter.

28. The applicant claims he has not heard anything about his mother since fleeing Liberia.

29. The applicant claims there are rebels in Liberia and he fears being kidnapped, tortured and killed if he returns.

30. The applicant claims the new government is not stable. He claims there are armed robberies and that corruption exists.

31. The applicant claims he would find it hard to find work.

32. The applicant claims he would be unaware of rebel areas.

    Evidence:

33. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and lodged on 4 December 2018 (“visa application”).
    • The applicant’s identity documents being an uncertified copy of document for travel to Australia No. [number].;
    • The protection visa decision record (‘delegate’s decision record’) of 29 April 2019;
    • Undated submission from applicant tendered to Department on 4 December 2018;
    • Letter from the applicant’s eldestson’s mother.
    • Letter from [an Australian Liberian organisation].
    • Statutory Declaration from the applicant’s de facto partner/mother of applicant’s youngest son.
    • Letter from the applicant’s sister.
    • Letters of support dated 8September 2018.
    • Country Report on Human Rights Practices for 2018, United States Department of State, Bureau of Democracy, Human Rights and Labour, dated 23 May 2019.
    • Country Information and research submitted by the applicant on 22 May 2019.
    • Article from Front Page Africa - Liberia: A Lot of Petition Blame to go around as Protestors give President Weah Ultimatum.
    • CNN Edition, 6 July 2018 - Social Media Blocked as Liberians Protest Corruption and Creeping Dictatorship.
    • Article from The Guardian - Protests in Liberia over George Weah’s Failure to Tackle Corruption.
    • Article from Front Page Africa - Liberia: June 7 Protesters want President Weah Dissociate from Criminal Confidantes.
    • Application for Legal Assistance to Victoria Legal Aid.
    • Screenshots of social media posts.
    • Liberian Travel Advice, undated and unsourced.
    • The review application form which did include a copy of the delegate’s decision record;
    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing.

    Evidence before the Delegate

34. The applicant stated he lodged an application for Protection because he is traumatised by his experiences in Liberia. He stated he lost his parents and he has not been in Liberia since he was a child.

35. The applicant stated that he does not recall the circumstances of his flight from Liberia, but his sister told him that their mother did not return from a trip to find food for the family.

36. The applicant stated that when he was [age] years of age, he and his sister walked for over a month. He stated they passed through rebel places and witnessed people being killed more than once.

37. The applicant stated he and his sister made it to Cote d’Ivoire[Country 1], but they did not speak French and they were beaten. He stated they were also beaten in [Country 2]. He said they moved from place to place.

38. The applicant stated that he believed he unexpectedly met an uncle in a refugee camp in[Country 1] who told them that their parents had been killed.

    The applicant stated that he and his sister left [Country 1] because Liberian refugees were being chased out and their refugee camps burnt.

    Country of reference / receiving country

39. The applicant claims to be a Liberian national. Based on the copy of his passport provided to the Department of Immigration and Border Protection (the Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Liberia is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

40. The Tribunal notes that Liberia is a member of the Economic Community of West African States (ECOWAS) and therefore the applicant, as a Liberian national, may have a right to enter and reside in another member country for a period of time.  However, whilst sources indicate that ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, sources also suggest that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment, and extortion on the part of member nations.  The Tribunal also notes that the applicant has a criminal conviction and the country information indicates that each country has the right to prevent those with criminal convictions from entering.  For these reasons the Tribunal is not satisfied that the applicant has a right to enter and reside in another country based on Liberia being a member of ECOWAS.

41. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

42. The applicant attended the hearing on 1 July 2019. He was unaccompanied and not represented. The hearing proceeded in the English language.

43. The Tribunal briefly discussed the applicant’s criminal record, noting that he had been convicted of various domestic violence offences. The Tribunal enquired as to whether his partner, the subject of the domestic violence offences, was still with him. He confirmed that she was. The Tribunal enquired as to the partner’s nationality. He replied that she was [from another country].

44. The Tribunal confirmed that the applicant’s partner had no family in Liberia.

45. The Tribunal read to the applicant his claims set out in paragraphs 22 to 32 above. The Tribunal asked the applicant whether his claims as read to him were accurate and complete. The applicant confirmed that they were accurate and complete and that he had no other claims.

46. The Tribunal took evidence from the applicant’s first witness, being his partner. She confirmed that they were still together notwithstanding the various domestic violence offences. She confirmed that they have one child together and that the applicant has an older child from a previous relationship. Her evidence consisted of a plea to the Tribunal to allow the applicant to remain in Australia as she requires his help to look after the child, especially when she is at work. She stated that the child regularly asks for the father and she stated that the applicant was a good father.

47. The Tribunal asked the witness whether she was aware of any reason why the applicant could not return to Liberia. She replied that she doesn’t know anything about Liberia. She stated that she doesn’t want to go to Liberia and just wishes that the applicant could come home.

48. The Tribunal took evidence from the applicant’s second witness, being his sister.

49. The witness stated that the applicant was a loving and kind-hearted person who often assisted her in caring for her children. She too stated that she would love for him to get his visa to be able to help her with her children and look after his own children. She stated that he is a good father and a good uncle.

50. The Tribunal asked the witness whether she was aware of any reasons why the applicant could not return to Liberia. She replied that the applicant doesn’t know anyone in Liberia and that he has nowhere to live. She stated that he wouldn’t be able to get a job.

51. The Tribunal asked the witness about other siblings they have in Liberia. She confirmed that they do have older siblings, but was unsure how many and had no idea where they were. She asked for the government to have compassion for her brother.

52. The Tribunal noted that the applicant’s Refugee (Sub-Class 200) Visa was cancelled in December 2016, but that he had not applied for a Protection Visa until December 2018. The Tribunal enquired as to why it had taken him two years to apply for a Protection Visa, particularly given that he had been represented in relation to the revocation appeals. The applicant replied that he had applied to have the revocation set aside. He claimed that he couldn’t have two matters going at the same time. He also claimed that he was getting confused advice.

53. The Tribunal explained to the applicant that in circumstances where there is a long delay in applying for a Protection Visa, the Tribunal might form the view that the applicant’s claims for protection were not genuine. The applicant replied that his claims are very genuine and that he has been processing appeals against the cancellation of his Refugee Visa. He further stated that he is still seeking judicial review of the Tribunal’s (differently constituted) decision to affirm the revocation of his Refugee Visa. The Tribunal confirmed that an application for judicial review to the Federal Circuit Court of Australia is current.

54. The Tribunal asked the applicant whether he could recall where he lived in Liberia. The applicant replied that he couldn’t.

55. The Tribunal noted that the applicant claimed that his father was killed a few days before the war and that after that he also lost contact with his mother.

56. The Tribunal then referred to a letter previously submitted by his sister that explained that his mother was killed in February 2000 and that after that, the forces of Charles Taylor came to the family home and took the applicant’s father. The Tribunal asked the applicant whether he could reconcile this inconsistency. The Tribunal explained the significance of the inconsistency, as it might cause the tribunal not to believe his recollection of events which may lead to the Tribunal affirming the delegate’s decision. He replied that he couldn’t as he was a child at the time and that his only recollections are those that had been explained to him by his sister sometime later. He claims that he can’t recall when his parents disappeared other than to say that his mother used to go out and find food and bring it home to them but on one occasion she did not return. He states that he has no idea why both parents disappeared.

57. The Tribunal noted that the applicant had told the delegate that he had witnessed people being killed more than once. The applicant replied that he didn’t see people being killed; he only heard what he believed was being people killed as he heard them being taken and then screaming. He states that he did see dead bodies in the bush as they fled their home.

58. The applicant stated that he can’t remember whether he has older siblings.

59. The Tribunal referred to the applicant’s evidence before the delegate wherein he said that he and his sister unexpectedly met an uncle in a refugee camp in [Country 1] who told them that their parents had been killed. The Tribunal asked the applicant about the uncle, asking how he was related to him. He replied that he didn’t know the uncle. He stated he didn’t know anything about him, but he learned from his sister sometime later that the uncle had told her that their parents had been killed.

60. The Tribunal noted the applicant’s claim that his father had been killed because the rebels claimed that he was associated with a particular group. The Tribunal asked the applicant whether he knew what group that was. The applicant replied that he had no idea what group or party was involved. He had no idea whether his father had any political views and he himself has no political views. He stated, quite energetically, that he has done a lot of research about Liberia which has taught him about the political situation in Liberia and has taught him about the prevalence of rebel groups. He stated that it was risky to go out.

61. The Tribunal referred to evidence provided to the delegate that the applicant claimed to be a member of the Kpelle people. The Tribunal asked the applicant who the Kpelle people are and what set them apart from the rest of Liberia. The applicant replied that he didn’t know anything about them. He did go on to discuss the existence of tribes in Liberia and how some of the tribes can be dangerous and how they can catch people and take them into the bushes and that people are not seen again.

1. The Tribunal discussed with the applicant Country Information that it had obtained from the Country Report on Human Rights Practices for 2008 - Liberia.[1] The Country Report disclosed that the Kpelle constitute approximately 20% of the overall population of Liberia which makes them the largest ethnic group in Liberia.[2] There is no information that suggests that the Kpelle are specifically targeted or singled out in Liberia over ethnic groups or by any other ethnic group or other group. The Tribunal referenced other reports referred to by the delegate noting that they were all silent with regards to the human rights and security situation of the Kpelle.

   [1] US Department of State, 14 March 2019.

   [2] Ibid page 31.

2. The Tribunal invited the applicant to comment on that country information. He replied that there are lots of protests in Liberia.

3. The Tribunal noted the applicant’s claim that he might be kidnapped, tortured and killed if he were to return to Liberia. The Tribunal asked the applicant to explain why that might be the case.

4. The applicant replied that he will be singled out in Liberia because of the way he speaks.

5. The Tribunal confirmed that English is the official language of Liberia so it didn’t seem likely that he would be persecuted because of his language.

6. The applicant agreed but stated that it related more to the way he spoke, that it would be clear that he had been westernised and that he would give the appearance of possibly having money and would therefore be a target for kidnapping and he would then be killed as he has no money.

7. The Tribunal explained that people are returning to Liberia and that the UNHCR no longer regards those who fled Liberia as refugees and has, since 2004, been assisting Liberians to return to Liberia. Liberians are returning to Liberia after being absent for many years and are reintegrating into the community.[3]

   [3] UNHCR’s Position on International Protection Needs of Asylum Seekers from Liberia, UNHCR, 31 March 2006.

8. The applicant reiterated that Liberia is a dangerous place and referred to his research.

9. The Tribunal considered that research and the submissions made by the applicant with him and discussed that the research talked about risks faced generally by the whole Liberian population. The Tribunal explained that it needed to understand how the applicant will be personally at risk from suffering harm.

10. The applicant then explained that his parents were both killed by someone. He stated that he has the same name as his parents who were killed. He stated that as a consequence, he would also be killed because he had the same name.

11. The Tribunal confirmed that the applicant doesn’t know who killed his parents. He confirmed that was the case. He stated that it could have been Prince Johnson, General Butt-Naked or Charles Taylor. He stated that those people could be waiting for him to return to kill him as well because he has the same name.

12. The Tribunal discussed its concerns about that with the applicant. The Tribunal stated that it must first assume that the rebel leaders did knowingly kill the applicant’s parents. The Tribunal discussed with the applicant that no one knew who killed his parents, no one knows why they were killed, or how they were killed, whether they were killed specifically or were just victims of the civil war. The Tribunal discussed whether the rebel leaders even knew that his parents had been killed, did they know of the identity of each of the people killed during the civil war. Furthermore, given that 19 years have now elapsed and that the civil war is long over, would any of those rebel leaders still have an interest in him, or any person having the same last name as his parents.

13. The applicant replied that it is because he doesn’t know who killed his parents that make it dangerous for him as he doesn’t know who to look out for.

14. The Tribunal stated that it would consider that response.

15. The Tribunal asked the applicant whether he still had a passport. The applicant replied that he didn’t.

16. The Tribunal discussed with the applicant that Liberia is a member of the Economic Community of West African States and that the applicant, as a Liberian national, may have a right to enter and reside in another member country. The Tribunal also noted that the applicant had a criminal record and would consider the impact of that upon his right to enter other member countries.

17. The Tribunal discussed country information again with the applicant again that stated that the UNHCR, from June 2012, no longer regards those who fled Liberia as refugees and has, since 2004, assisted Liberians to return to Liberia. It also noted that there have been no reports that the Liberian government or its agents have committed arbitrary or unlawful killings of its opponents or that there have been politically motivated disappearances.[4]

    [4] US Department of State, 2015 Country Reports on Human Rights Practices, Liberia.

18. The Tribunal went on to note that security is improving and that this has been widely recognised by Liberians since the end of the last civil war. The Tribunal noted that Liberians are returning to Liberia after being absent for many years and are reintegrating into the community.[5]

    [5] Ibid, UNHCR’s Position on International Protection Needs of Asylum Seekers from Liberia, UNHCR, 31 March 2006.

19. The Tribunal invited the applicant to comment upon that information. He replied that he doesn’t know much about that.

20. The Tribunal discussed with the applicant his involvement within the Australian Liberian community. He replied that he hasn’t been involved with the community that much in recent times because of his children that have kept him busy and then his detention.

21. The applicant stated that he was involved with his church and that the Pastor had sent a supportive letter. The Tribunal acknowledged that it had seen that letter.

22. The Tribunal discussed with the applicant his work experiences in Australia. The applicant replied that he had a very good job with [a named employer]. He was involved in [various tasks]. He also [completed other tasks].

23. The Tribunal noted that the applicant was skilled. The applicant replied that he had Certificates in [various areas] and other things too.

24. The Tribunal discussed country information with the applicant that suggested that whilst there is high unemployment in Liberia, there is a lack of skilled and educated people following the years of civil war and that the Liberian government is counting on the return of those with skills and who are educated.[6]

    [6] Bertelsmann Stiftung’s Transformation Index - Liberia, 1 January 2014.

25. The Tribunal also noted that the Liberian government is embarking on programs to stimulate the economy and provide employment, but again requires people with skills and an education.[7]

    [7] Ibid.

26. The Tribunal discussed with the applicant that he does have skills, qualifications and has demonstrated considerable resourcefulness in the past in fleeing Liberia and arriving in Australia and has worked to support his family since.

27. The applicant replied that he couldn’t leave his children.

28. The Tribunal concluded the hearing by inviting the applicant to offer any further comments that he might have. The applicant replied that he is sorry for the crimes he has committed, stated that he is not a troublemaker and that he has not been on drugs since he was in jail. He also stated that since being in detention, he has had no problem with any of the Wardens.

    Assessment of Claims and evidence, and findings:

29. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).

30. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

31. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

32. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

33. Whilst the Tribunal found the applicant to be a generally credible witness, it has strong reservations about the strength of the applicant’s claims.

34. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

35. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

36. The Tribunal considered the applicant’s explanation for not having applied for a Protection Visa for a period of two years following the revocation of his Refugee Visa. It noted that the applicant had at all times been represented during the appeals process for the cancellation. Whilst perplexed by the reasoning provided by the applicant and given that he was represented, the Tribunal puts no weight on the fact and circumstances of the delay in applying for protection.

37. The applicant’s claims and evidence during the hearing were vague and uncertain which contrasted strongly with his written claims. The Tribunal accepts that the applicant left Liberia as a child and that his recollections of events are substantially what his older sister has told him in the intervening years since their departure.

38. The applicant addressed the Tribunal’s questions and concerns confidently and generally articulated his thoughts well. The Tribunal noted that the applicant’s fundamental claims are that he fears harm in Liberia because there is widespread poverty and violence, that he has not lived there since he was [age] years of age, he doesn’t have a home to go to, he has no family and friends in the country and would not be able to get a job.

39. The Tribunal is satisfied, after a long discussion with the applicant and consideration of his evidence, that he has a subjective fear of harm of returning to Liberia. The Tribunal accepts that the applicant does not want to return to Liberia and wishes to stay in Australia where he can be reunited with his partner and children. The Tribunal acknowledges the evidence of his witnesses as to his being a good father and uncle and of his Pastor who is prepared to assist him return to the community and the Tribunal accepts that the applicant is apologetic for his crimes.

40. Based on the written evidence of his sister provided to the Department, the Tribunal accepts that the applicant comes from Monrovia in Liberia.

41. The Tribunal accepts that the applicant left Liberia when he was [age] years of age.

42. The Tribunal accepts that the applicant has no recollection of where he lived or how many siblings he had.

43. The Tribunal accepts that the applicant’s parents disappeared during the civil war.

44. The Tribunal notes the inconsistency in evidence as to when each of the parents disappeared, that the applicant has no actual recollection of any of the events, and that his sister too was only a child at the time and accordingly cannot accept that there is any evidence of the parents having been killed by any particular person or group. The applicant didn’t know anything about his uncle or what he had said to his sister other than that his parents had been killed.

45. The Tribunal accepts that the applicant has no knowledge of whether his parents were involved in any group or political party. The applicant himself has expressed no political opinion in relation to Liberia. He has provided to the Tribunal screenshots and numerous articles in relation to the recent elections in Liberia and the state of security in Liberia, but has done so more to emphasise the widespread violence prevalent in Liberia, but did not express any political opinion in relation to why it was happening. The applicant has produced no evidence of any social media postings that he has made in relation to the political situation in Liberia.

46. The applicant has been absent from Liberia for more than 19 years and not actively involved in any political activity and the Tribunal does not accept that on his return he will involve himself in any political activities. The Tribunal does not accept that the applicant has ever been, or will be in the future, committed politically to any political activities. The Tribunal does not accept that he has any political profile.

47. The applicant has made no claims to fear harm in Liberia in the foreseeable future on the basis of political opinion, be it his own or one imputed from those held by his parents.

48. The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution on the basis of political opinion.

49. The Tribunal considered and discussed with the applicant evidence provided to the delegate as to his Kpelle ethnicity. The applicant appeared to have no knowledge about the Kpelle people and certainly made no claims that he feared persecution from other ethnic groups because of his Kpelle ethnicity.

50. The Tribunal considered Country Information in relation to the Kpelle people, noting they constituted 20% of the overall population of Liberia and making them the largest ethnic group in Liberia. There was no information suggesting that the Kpelle are specifically targeted or singled out in Liberia over other ethnic groups or by other ethnic groups.

51. The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution on the basis of his ethnicity or race.

52. The applicant claimed that he fears persecution because he will have the appearance of being westernised.

53. The Tribunal discussed this at length with the applicant, noting that he spoke English and confirming that English was the official language of Liberia.

54. The Tribunal also discussed country information with the applicant that advised that the UNHCR no longer regards those who fled Liberia as refugees and that country information indicates that Liberians are returning to Liberia after being absent for many years and are reintegrating into the community. Furthermore, the Tribunal discussed country information that indicated that the Liberian government is counting on the return of those with skills and who are educated and that the Liberian government is embarking on programs to stimulate the economy and provide employment but requires people with skills and an education to succeed.

55. Accordingly, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution on the basis of his membership of a particular social group, being, as the delegate suggested, “long absent returnees to Liberia with no family or support networks”, or as discussed with the applicant, “westernised returnees”. The applicant could not identify who it is who might seek to cause him harm by reason of his limited knowledge of Liberia and his having no family or friends or home in Liberia. There is no evidence to suggest, nor does country information identify, that the State would persecute the applicant on the basis of him having no home, family or friends or little knowledge of Liberia. In fact, country information suggests that he will be encouraged to return and participate in the economic recovery of Liberia.

56. The applicant claims he has a fear of being killed by the people or groups or rebels in Liberia who killed his parents, by reason that he has the same surname. He claims that it could have been Prince Johnson, General Butt-Naked or Charles Taylor or someone else who killed his parents.

57. The Tribunal discussed with the applicant its concerns that Charles Taylor or Prince Johnson or General Butt-Naked could not be aware of everything that happened during the war and every activity their supporters engaged in. The Tribunal does not accept that either Charles Taylor or Prince Johnson or General Butt-Naked were personally aware of the applicant’s parents and does not accept that their deaths were under the direct orders of any of them.

58. Given that Liberia was gripped by civil war at the time the applicant’s parents were killed, the Tribunal is of the view that there is little or no chance that any individual could or would recall or be concerned about their criminal responsibility for killing the applicant’s parents, such that, 19 years later, they, or others acting on their instruction, would want to kidnap, torture or kill the applicant.

59. The applicant has no knowledge of who killed his parents and no knowledge of whether those people would still be alive or living in Liberia.

60. The Tribunal does not accept on the evidence before it that, if the applicant returns to Liberia now or in the reasonably foreseeable future, that there is a real chance or real risk that he will be harmed by Prince Johnson, General Butt-Naked, Charles Taylor or any other person who may have killed his parents. The chance or risk of him being harmed now or in the reasonably foreseeable future is speculative and remote.

61. Country Information states that security is improving and this has been widely recognised by Liberians since the end of the last civil war. Country Information also indicates that many Liberians are returning to Liberia after being absent for many years and are reintegrating into the community. Country information also indicates that the UNHCR, from June 2012, no longer regards those who fled Liberia as refugees and has, since 2004, assisted Liberians to return to Liberia.

1. The Tribunal finds, on the basis of that Country information, that the situation in Liberia is significantly different to that when the applicant fled Liberia. The UNHCR no longer regards those who fled Liberia as refugees and is actively assisting Liberians to return to their country. There have been no reports the Liberian government has arbitrarily killed its opponents or been involved in politically motivated disappearances. The Tribunal does not accept that the applicant will be targeted in the future because of his parents’ deaths.

2. The Tribunal accepts that the applicant has a criminal record in Australia.

3. The Tribunal confirmed that the victim of his crimes is not Liberian. Accordingly, the Tribunal accepts that there is no risk that he will be harmed if he returns to Liberia because of the nature of his crimes or by any victim’s family or the community.

4. The Tribunal acknowledges that it may be possible that Liberian authorities may become aware of his crimes committed in Australia and he may be questioned on his return by the Liberian authorities, particularly if he is returned on an involuntary basis. The Tribunal is satisfied that even if the applicant was detained and questioned on his arrival over the offences committed in Australia by the Liberian government authorities, the applicant would not face a real chance of serious harm or a real risk of significant harm as the Liberian government has no adverse interest in him.

5. The applicant claims that he has nowhere to live and no remaining family in Liberia.

6. The Tribunal acknowledges that the applicant has been absent from Liberia for over 19 years.

7. Country information indicates that many Liberians are returning to Liberia after being absent for a similar period and are reintegrating into the community. The Tribunal does not accept that there is anything in the applicant’s profile that would cause him to come to the adverse attention of any person or authority on his return. The Tribunal does not accept that his prolonged absence from Liberia would elevate his profile over and above all the other returnees who have also been absent from Liberia for prolonged periods and who are returning or have returned to Liberia.

8. While the Tribunal acknowledges it will be difficult for the applicant on his return to find accommodation and employment, he does have skills, qualifications and has demonstrated considerable resourcefulness in the past in fleeing Liberia under difficult circumstances and then supporting his family in Australia. As discussed with the applicant, while the Tribunal acknowledges the high unemployment rate in Liberia, it does note country information that refers to there being a lack of skilled and educated people following the years of civil war and the Liberian government counting on the return of those with skills and who are educated to assist in economic reform.

9. The Tribunal does not accept that the applicant would not be able to find and obtain work upon return to support himself.

10. The Tribunal is satisfied that he will be able to find employment as he has skills and experience that will assist him in any workplace.

11. While he may experience some financial hardship on his immediate return to Liberia, he does have skills to find employment. The Tribunal finds that the financial hardship the applicant may experience will not be significant such that it will amount to serious harm or significant harm.

12. On the basis of the evidence before it, the Tribunal does not accept the applicant would be unable to find accommodation, or that he would suffer a denial of the capacity to earn a livelihood of any kind such as would threaten his capacity to subsist, or significant economic hardship to the point of threatening his capacity to subsist, or the denial of access to basic services such as accommodation to the point where such denials threatens his capacity to subsist. The Tribunal finds that the applicant will have the capacity to subsist on his return to Liberia.

13. The Tribunal has given considerable consideration to the information and research provided by the applicant to it. It addressed issues such as widespread violence, corruption, health risks from Ebola and dissatisfaction with the country’s leadership. As discussed with the applicant, much of the information provided attests to the situation in Liberia that affects the population as a whole. The Country Information demonstrates that the corruption, poverty and violence to which the applicant refers is generally faced by society at large. The applicant is not targeted personally. The applicant’s circumstances do not satisfactorily establish that his personal risk of experiencing harm is personal and present.

14. The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Liberia.

    Cumulative claims

15. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of the death of his parents in Liberia, his Kpelle ethnicity, his long-term absence from Liberia, the general situation in Liberia or any other reason if he returns to Liberia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Liberia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

16. The Tribunal has considered the applicant’s claims under complementary protection.

17. The Tribunal does not accept that the applicant fears that he will suffer significant harm as a consequence of the death of his parents in Liberia, his Kpelle ethnicity, his long-term absence from Liberia, the general situation in Liberia or any other reason if he returns to Liberia.

18. The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in Liberia if he was required to return as the UNHCR is not considering people who fled Liberia to be refugees and are assisting them to return. Further, the Liberian government are relying on returning nationals with skills and education to assist with its economic recovery.

19. The Tribunal also notes Section 36(2B)(c) which states that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

20. As discussed extensively with the applicant, the Tribunal accepts and understands that there is widespread poverty and violence in parts of Liberia but, as explained to the applicant, the applicant is exposed to the same risk that all other Liberians are exposed to. Neither the applicant nor his witnesses were able to identify any particular personal risk of harm to the applicant.

21. The Tribunal noted that the applicant made a somewhat uncertain claim as to concerns of being separated from his partner and children.

22. The Tribunal has considered whether a claim of significant harm arises as a consequence of the applicant being separated from his partner and children. Whilst noting the vague nature of the claim, the Tribunal has given consideration to the possibility that there may be psychological harm suffered by the applicant.

23. In SZRSN v MIAC [2013] FCA 751 the Federal Court found that separation of family members could not amount to ‘significant harm’ as defined in s.36(2A) because it is harm arising from the act of removal itself, and also because it would not meet the ‘intention’ requirement. The Tribunal notes that this case involved the separation of the applicant from his children in Australia, but the Tribunal is satisfied that it is indistinguishable from the present case of an applicant being separated from a partner as well as children.

24. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Liberia now or in the reasonably foreseeable future.

25. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Liberia now or in the reasonably foreseeable future.  

    Conclusion: Refugee Criterion

26. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

    Conclusion: Complementary Protection

27. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Liberia that there is a real risk that he will suffer significant harm.

    Overall conclusion:

28. 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).

29. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

30. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Michael Hawkins
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …