1917894 (Refugee)
[2023] AATA 993
•3 January 2023
1917894 (Refugee) [2023] AATA 993 (3 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth)
APPLICANT’S REPRESENTATIVE: Mr Tony Stolar, solicitor
CASE NUMBER: 1917894
COUNTRY OF REFERENCE: Liberia
MEMBER:Kate Chapple
DATE:3 January 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Statement made on 03 January 2023 at 9:15am
CATCHWORDS
REFUGEE – protection visa – Liberia – race – Krahn ethnicity – Liberian civil war – UNHCR registered refugee in Ghana – returning to a place of previous trauma – economic hardship – capacity to subsist – unable to obtain a Liberian passport – victim of identity fraud – right to enter and reside in the United Kingdom – Indefinite Leave to Remain (ILR) expired – serious, ongoing and irreversible harm and continuing hardship – Australian citizen wife and children – Ministerial Intervention requested – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2Any 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.
OVERVIEW
The applicant, a man aged [age], was born in Monrovia, Liberia, and is of Krahn ethnicity and Pentecostal Christian faith. He lived in Monrovia with his family until they fled in 1990 to escape the civil war. After being shot by rebels, he found himself separated from his family and in the hands of West African peacekeepers who delivered him to a refugee camp in Ghana where he was registered as a refugee with the UNHCR. After six years, the applicant was transferred to a rehabilitation centre, also in Ghana, where he attended school for two years. In 1998 he was adopted by English missionaries to Ghana, a married couple, and went to live with them and their children in the United Kingdom (UK) where he studied and worked until 2014. While in the care of his adoptive parents, the applicant was sexually abused by his adoptive father for a number of years.
In 2013, the applicant met his now wife, an Australian citizen, in person while she was visiting the United Kingdom after having communicated with her online for some time prior. In early 2014, they were engaged to marry, and in April that year, the applicant travelled to Australia for six weeks to see his fiancé and meet her family. When arranging his travel and visitor visa for Australia, the applicant discovered he was not a citizen of the UK, as he believed he had been told by his adoptive parents; rather, he was a permanent resident. He entered Australia on a Liberian passport and UK travel documents. When attempting to board his return flight in May 2014, he was stopped by border officials who advised him that his UK travel documents had expired. Considerable confusion followed regarding the applicant’s UK travel documents, Liberia passport, and UK immigration status; meanwhile, he has remained in Australia.
The applicant unsuccessfully applied for a partner visa later in 2014, and married his wife in October 2015. In December 2015, the applicant applied for protection claiming fear of persecution as a Krahn in Liberia, fear of returning to a place of previous trauma, and fear of severe economic and social hardship and emotional trauma.
The applicant and his wife live together with their three children aged [age], [age] and [age]. He has work rights in Australia and has been employed in various roles since 2014 while his wife, who has some health problems, is currently caring for their children at home full-time.
In determining this case, the Tribunal must consider and make findings on these questions:
5.1.Does Australia owe the applicant protection obligations based on his claimed fears of returning to Liberia?
5.2.What is the status of the applicant’s Liberian passport?
5.3.Does the applicant have a right to enter and reside in the UK?
5.4.Are there unique or exceptional circumstances that warrant a referral to the Minister for possible consideration of the use of the Minister’s intervention powers?
EVIDENCE BEFORE THE TRIBUNAL
Timeline
Departmental and Tribunal records disclose the following key dates:
6.1.Applicant’s first and last arrival in Australia: April 2014.
6.2.Application for protection visa: 10 December 2015.
6.3.Delegate’s decision to refuse protection visa application: 1 July 2019.
6.4.Application for review: 4 July 2019.
Protection visa application
The applicant’s protection visa application provided the following evidence:
7.1 He is from the Krahn ethnic group in Liberia who were targeted for being Krahn when the civil war began in 1989.
7.2 He and his family fled their home and became internally displaced people in a government barracks.
7.3 His father and grandfather stayed behind in their village and the applicant never saw them again.
7.4 He witnessed atrocities while living at the barracks as the fighting intensified outside, including dead and mutilated bodies.
7.5 He caught cholera and nearly died.
7.6 His mother wanted to leave the barracks and make their way to Freeport but that was not possible due to the security situation and the checkpoints.
7.7 They were forced to dig in a rubbish dump to find food but were not able to find much due to scarcity.
7.8 Eventually they did leave the barracks after a battle and made their way through the streets where they were questioned by rebel soldiers. His grandmother and mother convinced them that the whole family were from the ‘Kru’ tribe in order to get past.
7.9 They then moved to West point and lived with the applicant’s aunt. West point was lawless but had more food. It was controlled by rebels and became too dangerous when young boys were being forcibly recruited.
7.10They fled to their uncle’s house in [location] which was near Freeport.
7.11Freeport was lawless and there were many looters, who were often shot and left to die in the streets by rebels.
7.12The applicant participated in looting in Freeport in order to survive and risked his life because he had to.
7.13His grandmother contracted cholera but could not be treated at a clinic as it was run by rebels who could have identified they were Krahn.
7.14The applicant continued to loot and after the death of Samuel Doe crossed through a checkpoint where he was shot after a rebel identified he was Krahn.
7.15He was shot in the leg and left to die.
7.16The applicant woke up on a West African Peace Keeping Vessel that was headed to Ghana without his family.
7.17He was registered as a refugee in Ghana with the UHCHR and put in [a] Refugee Camp for counselling.
7.18He lived in a home for orphan children and experienced flashbacks to his time in Liberia.
7.19He remained in the camp from 1990 until 1996 when he was sent to a Rehab Centre run by the Salvation Army in Eastern Ghana and given the opportunity to go to school.
7.20During this time he was informed by the UHCHR that his father, mother and grandmother had all died. He has not contacted any members of his biological family since he left in 1990 and does not know the whereabouts of his brothers and sisters.
7.21He was adopted by English missionaries to Ghana and went to live with them in March 1998 in England.
7.22He studied and worked in England until he met his now wife.
7.23He came to Australia on a visitor visa and an expired UK travel document intending to return after visiting his now wife.
7.24When it came time to depart the applicant was unable to depart as he was told he would need a visa to return to the UK, despite previously being informed he did not require one.
7.25Although his adoptive parents had told him he was a British citizen he found out that he was only a permanent resident who could not renew his travel outside of the UK.
7.26He was advised to apply for a partner visa but this was refused and he was told to leave Australia.
7.27He had every intention of returning to the UK but was unable to obtain a Liberian travel document.
7.28After months of trying he was issued with a Liberian passport by the authorities which had the wrong passport photo and surname.
7.29The Liberian authorities will now not issue another passport.
The applicant’s protection visa application set out the following claims:
8.1.Due to the circumstances of his life in Liberia and the severe human rights abuses he witnessed and experienced he does not want to return to Liberia. He also fears the psychological effects of returning to Liberia due to what happened to him there.
8.2.He fears being persecuted as a Krahn due to tribal differences and believes Liberia cannot provide him protection.
8.3.He fears economic hardship that threatens his capacity to survive as there is no opportunity to earn a living in Liberia. He would be exposed to extreme poverty and living conditions.
8.4.He believes the perpetrators of the civil war still live in Liberia and exist with impunity.
8.5.He believes Liberia is unstable and another civil war could occur.
8.6.He cannot return to Liberia due to the lack of support system and network and the hardship.
Documents submitted in support of applicant’s protection claims:
9.1.Statement (14-page) by applicant, titled ‘The Beginning in Liberia’ (attached to protection visa application).
9.2.Statement (3-page) by applicant’s wife (attached to protection visa application).
9.3.Copy of applicant’s Liberian passport issued [in] 2009 and expired [in] 2014 with endorsement stamp: arrived Australia [in] April 2014 (attached to protection visa application).
9.4.Copy of applicant’s United Kingdom Certificate of Travel issued [in] 2011 and expired [in] 2012 (attached to protection visa application).
9.5.Copy of Liberian passport issued by Min. of Foreign Affairs [in] 2020 (expiry [in] 2025) bearing the applicant’s given names and date of birth, and a surname, height, and photograph not belonging to the applicant (attached to protection visa application).
9.6.Submission by applicant’s representative dated 9 July 2018.
Other departmental records:
10.1.Decision record relating to the delegate’s refusal decision.
10.2.Interview audio file.
10.3.Case file.
10.4.Internal records relating to the applicant.
Application for review
The Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 30 September 2022 and to provide pre-hearing submissions.
Prior to the hearing, the applicant’s representative provided to the Tribunal:
12.1.Confirmation that the applicant intended to participate in the hearing with the assistance of the applicant’s representative.
12.2.A request that the Tribunal take witness evidence from the applicant’s wife.
12.3.Submission by applicant’s representative dated 23 September 2022 attaching copies of statutory declarations by the applicant and the applicant’s wife, a UK Visas & Immigration Refusal of Entry Clearance dated 3 September 2018, a letter from the applicant’s employer, a letter from the applicant’s Pentecostal Church pastor, and letter from a former president of the Liberian Association of Queensland.
The Hearing
The applicant and the applicant’s wife appeared before the Tribunal at a hearing conducted in person on 30 September 2022. The applicant chose not to have an interpreter. The hearing was conducted entirely in English. The applicant’s representative was present at the hearing.
The applicant gave the following evidence:
Adoptive family in United Kingdom
14.1.The applicant went from Ghana to the United Kingdom (UK) in 1998 to live with his adoptive family. His adoptive father worked with the Salvation Army and his adoptive mother was a midwife. There were two adoptive younger brothers, however the mother did not allow him to have a relationship with them, and he has lost contact. His adoptive parents did not help him trace his biological family. The applicant was sexually abused by his adoptive father, and after a year with the family he left and sought help from the local church. He became a Christian, and with the church’s help, found accommodation, trained as a [Occupation 1], and got employment. A woman at the church became a mother figure to him. Over time, he discovered through the Salvation Army and Red Cross that his parents and grandparents had died in the civil war, and that he had siblings scattered around the world, including four in the US and a couple in Liberia. The applicant lived in the UK for sixteen years.
14.2.After some years, the adoptive parents divorced. The adoptive father asked the applicant for his forgiveness regarding the sexual abuse. The applicant obliged and visited his adoptive father when he was sick. The adoptive father died this year. The applicant messaged his adoptive mother on Facebook extending his sympathies; she has serious health issues and wants no relationship with him. The applicant was denied any inheritance from his adoptive father as he declined his further sexual advances.
Applicant’s fears about returning to Liberia
14.3.The Tribunal put to the applicant the following country information and invited him to comment:
From June 2012, given restored political and security stability in Liberia, cessation clauses came into effect for Liberia, and the UN ceased recognising the refugee status of people who fled from Liberia during the civil war. The UN Mission in Liberia turned over full security responsibility to Liberia in 2016 and withdrew from Liberia in June 2018. Following the 2017 election of President Weah, there was a peaceful transition in government.
Country source information does not refer to people of Krahn ethnicity being targeted by government forces or former enemies. The UN Mission in Liberia had positive results disarming and preventing conflict between warring groups after the civil war and peace has been maintained since.
Following the end of the civil war, the UNHCR assisted the return of hundreds of thousands Liberian refugees. The International Organisation for Migration has assisted thousands also, including from the UK.
Non-government organisations are active in Liberia and have been involved in the return of refugees. There are no reports of returning refugees being targeted.
Country sources also don’t suggest that returnees or Krahn members are denied jobs or services because they have returned to Liberia from other countries or by virtue of their ethnicity.
Economic conditions in Liberia are poor and the lack of security is an issue though the levels of crime are not high by regional standards, but these are issues that impact all citizens.
Liberian returnees are eligible for IOM assistance through assisted voluntary repatriation and reintegration packages and additional support through the Liberian Refugee Repatriation and Resettlement Commission.
14.4.The applicant acknowledged there was no longer war in Liberia, but he fears grave harm if he is returned there, in particular the psychological impact of returning to a place where he experienced harm and trauma in the civil war, and economic harm as there are no opportunities or future in Liberia. He said he had not been in Liberia since he was aged [age], he doesn’t know the system, he had heard reports of Liberians returning from UK and US being targeted and not getting police protection. He said Westerners are targeted for money by corrupt officials.
14.5.The applicant said that when he applied for a new Liberian passport he was told by the Liberian Foreign Affairs official who conducted the telephone interview that he didn’t believe the applicant was a Liberian citizen. The applicant was also told that without a passport he would be jailed in Liberia.
14.6.The applicant has a biological sister in Liberia who he is touch with on WhatsApp around once a month. He sends her money from time to time. She tells the applicant that people are harassed for money in Liberia and they are recruiting for next year’s election, she begs him not to come back, and says she wants to move to Ghana. The applicant also has a half-brother, on his father’s side, in Ghana who he also sends money from time to time. The applicant doesn’t have a lot of spare money.
14.7.The Tribunal referenced the letter from the former president of the Liberian Association Queensland and asked the applicant about his involvement with the association. He said he helped to raise funds to support Liberians, for example through the Ebola outbreak, however there are issues with money not going to trustworthy recipients. Members also get together to play football and celebrate important Liberian days. The applicant isn’t aware of the support of the association coming to the attention of Liberian authorities.
Applicant’s UK travel documents
14.8.When the applicant left Ghana, the UNHCR gave his adoptive parents his refugee status documents to lodge with the UK government.
14.9.The Tribunal referred to the Indefinite Leave to Remain in the UK (ILR) that was granted to the applicant [in] 2006. The applicant explained that he recalls applying for that because he needed a form of identification for work purposes; he wasn’t at that stage planning to travel. The ILR was granted on the basis of his UNHCR refugee status documents. Until then, he believed he was a UK citizen based on what his adoptive parents had told him, however discovered that he was in fact a permanent resident.
14.10.The applicant couldn’t explain why he had a UK Certificate of Travel that issued [in] 2011 and expired [in] 2012 as he believed the ILR didn’t have an expiry date.
Applicant’s expired Liberian passport
14.11.The Tribunal noted to the applicant that in his protection visa application he gave details of a Liberian passport that was issued [in] 2009 and expired [in] 2014. The applicant explained that he applied for the passport because he had planned to travel to Ghana; he had been contacted by a woman who claimed he had fathered her child, and he wanted to have a DNA test conducted. He ultimately decided not to travel to Ghana.
Circumstances of applicant meeting his wife
14.12.The applicant and his wife were introduced on Facebook by a mutual friend in 2011; they communicated that way for some time, then talked on Skype. She is an Australian citizen, originally from [Country 1], and was living in Australia with her family. The applicant invited her to the UK in 2013 so they could meet. She travelled there in November 2013 and returned to Australia in February 2014. While they were together in the UK, they decided to marry.
Applicant’s travel to Australia
14.13.The applicant’s wife wanted the applicant to come to Australia to meet her family and to show them he was serious about their relationship and intention to marry. They decided the applicant would travel to Australia in April 2014. The applicant arranged six weeks’ leave from his job, he paid his rent in advance, and asked his housemate to look after his things and the house while he was away. The applicant had bought a car not long before he left for Australia. He planned to return to the UK after his six-week visit to Australia and apply for UK citizenship using his ILR.
14.14.Producing his UK travel documents and then current Liberian passport, the applicant applied for and was issued a 90-day Australian visitor visa. UK Immigration told the applicant the expired Certificate of Travel was no bar to him travelling because he had an ILR. On the basis of that advice, the applicant saw no reason to request a new Certificate of Travel.
14.15.The applicant arrived in Australia [in] April 2014. There were no problems with his travel documents on entry.
14.16.[In] May 2014, the applicant was in the queue at Brisbane airport preparing to board a [return flight] to London. The applicant’s wife and family had come to the airport to see him off. He was pulled aside by airline staff and told that his UK travel document had expired and he could not depart Australia. The applicant tried to explain his position; he insisted he be allowed on the flight and he would sort out the issue when he arrived at Heathrow airport. The airline staff refused his request and he and his wife and family left the airport. The applicant has remained in Australia since.
14.17.The following day, the applicant and his wife went to see the Department to tell them what had happened, and he was advised to apply for a partner visa. In June 2014, the applicant applied for a partner visa, but was refused in November that year he thinks because he and his wife hadn’t been together for long enough to show their commitment to a long-term relationship.
14.18.Given the applicant was unable to return to the UK, he lost his job there. In time, his flatmate moved away, and he assumes the house was re-leased. He doesn’t know what has happened to his belongings, including his car and all of his papers.
Applicant’s attempts to renew UK travel documents and Liberian passport
14.19.In May 2014, the applicant contacted the British Consulate in Brisbane about how to fix the problem with his UK travel documents. A woman at the Consulate told him she would seek advice, however the applicant heard nothing further. He then proceeded to apply for a partner visa, and took no further steps while awaiting the outcome of the application.
14.20.On 22 December 2014, the applicant contacted the British Consulate in Brisbane again. He was told they didn’t deal with visa issues and he needed to apply through the British Embassy in Manila. The applicant could not explain why he was required to go through Manila, and not Canberra, for example. The applicant understood that the alternative was to attend in person at the UK Home Office in London, however this option was not open to him.
14.21.The applicant couldn’t recall the date he contacted the British Embassy in Manila. He was advised in writing by them that if he wished to return to the UK utilising his Indefinite Leave to Remain status he should make an application for a returning resident, and he would need to evidence that he had reported all previous travel documents lost and evidence and explanation of his movements since his Certificate of Travel expired in 2012.
14.22.In February 2015, the applicant contacted the Liberian Embassy in London to renew his by-then expired Liberian passport. He was told that London no longer issued passports and he would have to apply through the Liberian Embassy in Washington DC. When the applicant contacted Washington, he was told he would have to contact Liberian Foreign Affairs and attend a telephone interview, which he did after February 2015. He was asked about his parents and family, his history, and date of birth; he was accused by the person interviewing him of not being Liberian due to his accent and lack of language. He explained that he had left Liberia as a boy. Following the interview, the applicant sent money and supporting documents for his passport application via DHL to a different named person in Liberian Foreign Affairs, who was also a reverend who asked the applicant for money to help with his church, and the applicant obliged.
14.23.In July 2015, the applicant received an email from the Liberian Embassy in Washington DC attaching a copy of the newly issued passport. The given names and date of birth were correct for the applicant; however the surname, photograph and height details were not. The applicant tried to get in contact with the reverend he had sent his documents and money to. Eventually, he was told he would not be issued a rectified passport unless he paid over USD 500, which the applicant couldn’t afford, and he would be arrested if he arrived in Liberia without a passport.
14.24.The applicant went to the Department to ask for help. They suggested he go to the International Organisation for Migration (IOM). The applicant’s IOM case worker thought it might be an option for him to get a lesse passe to go to London, so she contacted the Liberian Embassy in London on his behalf and was told they would not assist and, again, if the applicant returned to Liberia he would be detained, prosecuted and jailed. The IOM caseworker told the applicant he was the victim of identify fraud.
14.25.The applicant and his wife married in October 2015. The applicant made no further attempts to renew or rectify his Liberian passport and applied for protection on 10 December 2015. The applicant and his wife met with the IOM once more after the protection visa application and they gave him information about support agencies in Australia.
14.26.The applicant and his wife had their first child in [year], their second in [year], and their third in [year].
14.27.Sometime in 2018, the applicant applied to UK Visa & Immigration for a returning resident as previously advised by the British Embassy in Manila. On 3 September 2018, the applicant received a Refusal of Entry Clearance on the basis that (referencing paragraph 18 and 19 of the UK Immigration Rules) he had been away from the UK for more than two years and he had failed to demonstrate his strong ties with the UK and that he intended to make the UK his permanent home. The applicant was unaware of these rules when he made his application. He was advised by his representative that given the time that had elapsed since he left the UK (by then, nearly four and a half years), it would be a waste of time and money to seek administrative review.
14.28.The applicant has made no further attempts to renew his UK travel documents as it has been too long now, he is settled in Australia and has a family.
The Tribunal agreed to take evidence from the applicant’s wife. She gave the following evidence:
15.1.She was born in [Country 1]. She and her family spent some time in a refugee camp in West Africa and came to Australia in 2002 on a humanitarian program. She became an Australian citizen in 2004.
15.2.When she visited the applicant in the UK between November 2013 and February 2014, the applicant’s wife met his adoptive father and mother, and visited the house he lived in with them. Her impression was that they had all reached a level of acceptance about the past and had moved on.
15.3.She doesn’t know much about the applicant’s biological family, and doesn’t talk to anyone in Liberia directly.
15.4.She wanted the applicant to come to Australia to meet her family so they could give their approval to the proposed marriage as her cultural traditions required. The applicant paid a dowry and they planned to live together in the UK.
15.5.The applicant applied for a partner visa in June 2014, however the Department refused the application because they hadn’t been together for long enough. She wants him to apply again because she wants him to stay, they have built a life together in Australia, they have children, she has been here for most of her life, she relies on him for support, and he is a good father and husband.
15.6.She is very concerned for the applicant’s safety if he is returned to Liberia. He lost his parents at a young age, he has traumatic memories, mentally he would be unable to cope and fearful for his life.
Post-hearing submissions
At the request of the applicant’s representative, the Tribunal agreed to receive post-hearing submissions by 18 October 2022. At the further request of the applicant’s representative, on the medical grounds, the Tribunal granted an extension for submissions to 18 November 2022.
The Tribunal wrote to the applicant’s representative on two occasions before and after 18 November 2022 reminding of the extended submission date and providing a further opportunity to provide post-hearing submissions.
No post-hearing submissions have been received by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does Australia owe the applicant protection obligations based on his claimed fears of returning to Liberia?
Country information accessed by the Tribunal
Liberian returnees are eligible for International Organization for Migration (IOM) assistance through the provision of ‘Assisted voluntary repatriation and reintegration’ (AVRR) packages and additional support through the ‘Liberian Refugee Repatriation and Resettlement Commission’ (LRRRC). The International Organization for Migration (IOM) fosters migrant integration through comprehensive resettlement services for the organized transfer of refugees, displaced persons and other individuals in need of migration services.
Reporting in August 2022 quoted the LRRRC in assuring ‘Liberian returnees…of [the] government’s unflinching support’ in accessing housing upon their return ('Housing units for Liberian returnees near completion', Lewis S. Teh, The New Dawn, 10 August 2022).
The Liberia Returnee Network (LRN) is a registered NGO which provides a range of services for refugee-returnees including vocational education programs and housing. In February 2022, the LRN launched the ‘Home Back Home’ campaign aimed at the repatriation of Liberians remaining in refugee camps in neighbouring countries.
The Liberian Refugee Repatriation and Resettlement Commission’s (LRRRC) website provides the following summary of the organisation’s objectives and mission:
22.1Provides International protection and assistance to refugees, asylum seekers and people of mixed nationalities.
22.222.2Goes to foreign countries especially the sub region in order to create awareness with organizations for Liberian refugees to return home.
22.3Receives Liberian returnees and pursues assistance from the government and partners to allow returnees to reintegrate in their home County in safety and dignity.
22.4Provides training opportunities for skills training.
22.5Refers Liberian returnees to various institutions for employment opportunities.
22.6Repatriates stranded Liberian migrants who are not in the refugee’s database.
22.7LRRRC refugee/returnee officers serve to support and create easy access to exiled Liberian returnees both at ports of entry and areas of return, and to internally displaced persons resettled in their towns and villages or return.
The United States Department of State Country Report on Human Rights Practices 2021 for Liberia states generally, the Liberian government cooperated with the United Nations High Commissioner for Refugees (UNHCR) and other organisations ‘in providing protection and assistance to…returning refugees,’ among other groups. Further, the Liberian government has dubbed 2022, in marking its bicentennial anniversary, ‘The Land of Return’ or ‘Year of the Diaspora Reunion’ to encourage diaspora Liberians to return.
A book chapter published in Migration in West Africa in July 2022 explores the situation of Liberian refugees living in neighbouring Ghana. The author states that ‘many Liberians do not feel that it is safe to return’ due to the conflict history and underlying tensions, and the prevalence of other forms of violence and insecurity. The chapter highlights gender-based violence against women and girls generally, however, does not indicate any instances in which returnees, including refugee-returnees, are thought to have been targeted. The chapter also outlines in more detail the economic challenges for returnees, and difficult living conditions which were ‘compounded by the COVID-19 pandemic.
('‘Hanging in the Air’: The Experiences of Liberian Refugees in Ghana', Heaven Crawley and Veronica Fynn Bruey, Migration in West Africa, 5 July 2022)
A study published 2020 in Journal of Refugee Studies, drawing from interviews with Liberian refugees in Ghana conducted in 2017 indicated refugees were hesitant to return home, in part, due to general insecurity and/or the fear of persecution or retribution upon return. The article notes:
Some even cited examples of fellow refugees who returned home and lost their lives due to reprisals or revenge killings in their communities or via violent disputes over properties they left behind but have been taken over by others due to long periods of absence from Liberia.
Indeed, some refugees approached me after the focus-group interviews and confided in me that they could never return to Liberia because of their involvement in the war. While some feared legal prosecution by the state due to the never-ending debates in Liberia on what to do with some of the most violent participants in the war, others feared for their lives in their communities due to poor levels of rule of law in the country. Some of these refugees also pointed out that they have been given a special protection status in Ghana by the international community that precludes them from any forceful repatriation home due to their past war record. However, this could not be independently corroborated due to the sensitive nature of their wartime involvement and confidentiality reasons.
In addition, some respondents distrust the Liberian law-enforcement and security agencies and question their professionalism and neutrality. A major source of concern for these respondents is the fact that many former rebels on the winning side of the war became the backbone of the post-war Liberian armed forces and police. Therefore, there is a sense that the current composition of Liberia’s military and police is not representative of all factions who fought in the war. Hence, among refugees who feel their compatriots were left out of the new security architecture of Liberia, it would be risky to return and live under former adversaries even in a democratic dispensation.
(‘The Dilemma of Ghana-Based Liberian Refugees and the Challenges of Repatriation and Integration', Osman Antwi-Boateng and Mohammed Kamarideen Braimah, Journal of Refugee Studies, Vol. 34(1), 23 May 2020)
The United States Department of State Country Reports on Human Rights Practices for 2021 – Liberia states that:
Significant human rights issues included credible reports of: arbitrary killings by police; cruel, inhuman, or degrading treatment or punishment by police; harsh and life-threatening prison conditions; arbitrary arrest or detention; serious problems with the independence of the judiciary; restrictions on freedom of the press, including violence, intimidation and threats against journalists resulting in self-censorship, and unjustified arrests of journalists; serious government corruption; lack of investigation and accountability for gender-based violence, including child, early and forced marriage, and female genital mutilation/cutting; trafficking in persons; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, and intersex persons; the existence or use of laws criminalizing consensual same-sex sexual conduct between adults; and existence of the worst forms of child labor.
Impunity continued for individuals who committed human rights abuses, including atrocities during the two Liberian civil wars, as multiple investigative and audit reports were ignored. The government made intermittent but limited attempts to investigate and prosecute officials accused of current abuses, whether in the security forces or elsewhere in the government. Impunity continued for government corruption.
The law recognizes 16 indigenous ethnic groups; each speaks a distinct primary language and is concentrated regionally. Long-standing disputes regarding land and other resources among ethnic groups continued to contribute to social and political tensions.
A 2011 report from the UN High Commissioner for Refugees … section titled “Uprooted Liberians in Monrovia” (paragraphs 322 – 323) states:
IDPs live alongside the returned refugees who left their communities temporarily or permanently and former combatants. Absent the 14-year conflict, far fewer would have chosen urban settings for their futures, but see no other options at present. Observers and researchers of Monrovia slums concur that the slums today include people who underwent different trajectories during the conflict. Generally people choose to live among people from the same region or ethnicity, but residents maintain that where regional and ethnic diversity exists in their communities, it rarely causes tension. There are other issues that loom large and do not bode well for the future of the uprooted people who have come to live in the city: First, their extremely limited economic opportunities are almost entirely in the informal sector; second, they have created communities on land to which they have no formal claim, hence live with the constant threat of evictions; and third, they are vulnerable to physical harm, crime and youth gang violence.
The Introduction to a UN High Commissioner for Refugees research paper refers to the situation for refugees returning to Liberia as follows:
The results of their return were mixed. Upon their arrival in Liberia, some settled in with relatively little stress whilst others confronted a series of daunting hardships. The process of integration experienced by these Liberian returnees, including the construction of new livelihoods in their country of origin, was largely influenced by their asset conditions. In particular, their levels of access to social networks in Liberia played a principal determinant role in their integration.
The integration process for returnees does not lend itself to generalisation: some faced a number of challenges in settling in whilst others managed to establish their life with relatively little stress. In the initial phase of return, access to shelter and daily food was essential for all returnees. To secure these fundamentals, a returnee’s personal contacts often played a chief role. In particular, whether a returnee had access to assistance from relatives or not made a considerable difference in his/her initial integration adjustments.
(UN High Commissioner for Refugees (Policy Development and Evaluation Service) (June 2011) ‘Repatriation is not for everyone’: the life and livelihoods of former refugees in Liberia)
An Internal Displacement Monitoring Centre overview document for Liberia states:
… the situation of an unknown number of displaced people, who had sought refuge in public buildings in the capital Monrovia and who had never registered as IDPs, remained unclear. Disputes over the use and ownership of land in return areas have continued; the failure to resolve these issues has stood in the way of the re-establishment of long-term security. Recurrent outbursts of violence between rival ethnic groups, such as those between Muslims and Christians in Lofa County in February 2010, have demonstrated the fragility of the situation. Violence against women and girls has remained widespread. At the same time, displacement and migration into urban areas has put great pressure on urban facilities, and in October, the National Land Commission convened a conference to formulate guidelines for the development of an urban land policy as a step to address the land issues in the country.
(Internal Displacement Monitoring Centre (IDMC) (23 March 2011) Internal Displacement: Global Overview of Trends and Developments in 2010 – Liberia).
UNHCR New Issues in Refugee Research – Research Paper No. 213 (June 2011) ‘Repatriation is not for everyone’: the life and livelihoods of former refugees in Liberia makes the following observations:
30.1.The integration process for returnees does not lend itself to generalisation: some faced a number of challenges in settling in whilst others managed to establish their life with relatively little stress. In the initial phase of return, access to shelter and daily food was essential for all returnees. To secure these fundamentals, a returnee’s personal contacts often played a chief role. In particular, whether a returnee had access to assistance from relatives or not made a considerable difference in his/her initial integration adjustments.
30.2.Support from family members (and friends) cushioned returnees’ transition by providing shelter, food and even some finance. These forms of assistance had clear financial implications. If a refugee could not utilize these personal connections, his/her starting cost upon return would be much larger.
30.3.Those who were integrated into Liberian society relatively smoothly had been having a decent exile life in Ghana thanks to access to overseas remittances from their relatives in the west. As mentioned above, most of these successful repatriates were from traditionally wealthy and politically eminent families that produced a number of migrants to industrialised countries, predominantly the United States. During their exile in Ghana, these former refugees were constantly assisted by their diaspora members.
30.4.Importantly, most of these robust networks of successful returnees were not forged by their individual efforts after their repatriation. Rather, they ought to be perceived as the inherited legacy of their ancestors. These returnees were successful not because they were just lucky or by coincidence, but because they had specific avenues to socio-economic opportunities through their familial networks in the country of origin.
Liberia’s civil war pitted members of the country’s 16 tribes against one another in paroxysms of ethnic and political violence. As such, intertribal biases are rampant, especially against ethnic minorities, stereotypically suggesting that some tribes are especially prone to violence. Accordingly, these levels of bias are equal across members of minority and majority tribes. One of the most typical targets of these stereotypes is said to be the Mandingo ethnic group – an unsurprising finding, given some Liberians’ perceptions of Mandingoes as outsiders or foreigners…conflicts in Liberia are largely localised, involving the predominant ethnic group and minority ethnic groups in the locality. The Kpelles (17%), Bassas (10%) and Grebos (9.2%) are the most commonly identified ethnic groups involved in the reported conflicts.
(‘Mapping Opportunities for the Consolidation of Peace in Liberia: ‘Voices from the Countryside’’, ACCORD, 1 April 2017)
The Bertelsmann Stiftung Transformation Index 2022 Country Report on Liberia provides the following information:
32.1.Liberia was the scene of two devastating civil wars between 1989 and 2003. Under the government of Ellen Johnson Sirleaf (2006 – 2018), stability returned. Against the background of violent military rule and civil war between 1980 and 2003, Liberia evolved into a remarkably peaceful electoral democracy. Yet it remained among the 10 poorest countries on earth, with a high level of corruption, and minimal provision of public goods and services. The democratic change of government that elevated George Weah to the presidency in January 2018 marked a fundamental shift.
32.2.After the peace agreement of 2003, the United Nations Mission in Liberia (UNMIL) provided security and successively devolved responsibilities to Liberian state agencies. By March 2018, UNMIL finally withdrew from Liberia and handed over full security responsibilities to the country’s government. The judiciary and security sectors continue to lack the capacity to arrest, detain and adjudicate criminals. While the lack of security is a concern, levels of crime are not high by regional standards.
32.3.Liberia is constitutionally a secular state and religious dogmas rarely influence politics. The Americo-Liberian settlers, however, historically considered Christianizing indigenous “pagans” part of their “civilizing mission,” which entailed a symbolic affiliation of Liberian nationalism with Christianity. Some 85% of Liberians now identify as Christians; however, there is a fragmented multitude of denominations, many of which have a Pentecostal background. Many politicians double as religious figures and the president himself often preaches in his Pentecostal church. Islam is practiced by 12% of Liberians.
32.4.The creation of regional security hubs, which were active in 13 of the 14 “hinterland” counties by 2018, has improved the reach of state security, though major gaps persist. Still, some 3,800 of the country’s 5,000 police are based in the capital Monrovia. State provision of law and order is very limited, and local mechanisms play a major role in maintaining security.
32.5.Liberia’s physical infrastructure has improved in recent years but remains deficient, especially in rural areas. Juridical services are in principle available in the hinterland, but associated costs in terms of fees, transportation, time and legal representation are prohibitive for poor Liberians. Tax collectors tour the country and move into remote areas, but oversight is notoriously weak. Public schools often exist even in remote areas but are not necessarily functional. Health services are hardly available in rural areas, and quality is very poor nationwide. State-provided bus services exist only on the main road between Monrovia and Ganta, and irregularly on Monrovia’s ring road. The private mobile phone networks have expanded, but coverage is limited beyond the main roads and provincial centers. The state effectively provides few services. When bureaucratic tasks are performed, they are motivated by the private gains officials can extract in the process.
32.6.Civil rights have been strengthened over time, and the de jure situation is by and large satisfactory. An Independent National Commission on Human Rights has been created and has shown itself to be prepared to criticize state action; however, it has become less vocal as it has been increasingly starved of resources. The major challenges stem from the dysfunctional judicial system. Indeed, it is often futile to seek redress against the actions of the state or its officials. Influence peddling and corruption regularly determine judicial outcomes.
32.7.Police routinely extort motorists on roads and make arrests that are arbitrary or with insufficient evidence. Violence against women and domestic violence were widespread during the review period. The prevalence of clitoridectomy remains high and is left unaddressed by the state. Costs of access to justice are prohibitively high for most citizens. There are also anti-Muslim sentiments in the largely Christian nation. This manifests itself in the area of equal opportunity. Homosexual intercourse is illegal. Prison conditions are harsh.
32.8.Liberia consistently ranks as one of the poorest countries in the world. It was ranked at 175th place out of 189 countries in the 2019 Human Development Index (HDI), two positions lower than the previous year. About 76% of the population lives on less than $3.10 per day. An estimated 85% of the workforce is active in the informal sector, including subsistence agriculture.
32.9.Liberia is one of the most urbanized countries in the region, with approximately half of the population living in urban areas and about one-third in the capital city. This is partly the legacy of the civil war when the cities were comparatively safe and attracted internal refugees. It is also a consequence of the lack of opportunities in the rural economy, which has meant that urbanization has continued unabated. Socio-political factors, in particular elder control over land, poor road infrastructure and government neglect of smallholder agriculture, combine to render agriculture unattractive to young people. However, the industrial sector is small, and opportunities in the urban economy are few.
32.10.Access to education is a major challenge. In the hinterland, schools are often barely functional. The difficulties for poor rural youths who wish to climb the social ladder are immense and opportunities for slum dwellers of the cities are often not much better.
32.11.The majority of the population must rely on private channels such as patronage and the support of relatives in the case of hardship. Under conditions of extreme poverty, mechanisms of mutual support are often ineffective. Health care and related aspects like sanitation and access to safe drinking water are prioritized in the budget but service delivery remains very poor.
32.12.The distribution of opportunities is highly skewed along several lines, but the chief determinant is socioeconomic background. Those belonging to higher strata of society have significantly better access to education and, because of the importance of social connections, formal sector employment. Opportunities are further concentrated in the capital. The importance of proximity to the capital has implications for the distribution of opportunities across ethnic groups, with the poorly connected eastern counties being the most disadvantaged.
32.13.Official unemployment figures are relatively low at 2.7%, but this masks significant underemployment and very low income in subsistence farming and the informal sector. Due to deficient road and import infrastructure, high energy prices, low domestic production and a small oligopolistic market, costs of living are paradoxically high.
32.14.Culturally and politically, Liberians enjoy a degree of liberty that cannot be taken for granted in the region. While insecurity is an issue, crime is not particularly high by regional standards and gun violence is rare.
32.15.Yet, given its structural constraints, weak resources and no evident competitive advantage, Liberia will for the foreseeable future be unable to mobilize the resources needed to provide the core functions expected of a government.
Consideration of applicant’s evidence and claims
The Tribunal considers the applicant’s evidence truthful and credible.
In particular, the Tribunal accepts:
34.1.The applicant was born in Liberia, is of Krahn ethnicity and Pentecostal Christian faith.
34.2.The applicant’s written and oral accounts of his experiences in the Liberian civil war and as a UNHCR registered refugee in Ghana.
34.3.The applicant’s written and oral accounts of his adoption by English missionaries and living with his adoptive parents and children in the United Kingdom.
34.4.The applicant’s written and oral accounts of the circumstances of meeting his wife and travelling to Australia.
34.5.The applicant’s written and oral accounts of his attempts to renew his UK travel documents and Liberian passport.
Considering each of the applicant’s claims as follows:
35.1.Due to the circumstances of his life in Liberia and the severe human rights abuses he witnessed and experienced he does not want to return to Liberia. He also fears the psychological effects of returning to Liberia due to what happened to him there.
35.1.1.The Tribunal considers that it is reasonable for the applicant to feel this way. While the applicant has not provided medical evidence, the Tribunal accepts that his experiences as a child during the civil war, separation from parents, grandparents and siblings, and eight years in a refugee camp then rehabilitation facility are highly likely to have been traumatic and had a long-term impact on his mental and physical wellbeing.
35.1.2.The Tribunal considers that it would be reasonable for the applicant to feel little or no sense of belonging to a country that he has not lived in for over thirty years, having resettled in the United Kingdom at age [age] for a period of 16 years before travelling to Australia for what he intended to be a brief visit to meet his future wife’s family.
35.1.3.The Tribunal notes the country information indicating that refugees had reported feeling hesitant to return to Liberia because they did not feel safe due to the conflict history and underlying tensions, the general violence and insecurity, fear of persecution or retribution on return, poor economic conditions, and lack of social ties. The Tribunal notes however that the country information does not indicate any instances in which returnees, including refugee-returnees, are considered generally targeted.
35.1.4.The Tribunal also notes the country information indicating that some 85% of Liberians identify as Christians, and whilst there are many denominations, many have a Pentecostal background, as does the applicant.
35.2.He fears being persecuted as a Krahn due to tribal differences and believes Liberia cannot provide him protection.
The Tribunal notes that while the country information cited above indicates there are ongoing tribal and ethnic conflicts in Liberia, they are largely localised, involving the predominant and minority groups in the locality, the Krahn not being among those commonly involved. Further, there is no information about Krahn people being killed or harmed in Liberia because of their ethnicity or political opinion, either officially or extra-judicially, or that ethnic divisions or tribal violence are current factors of insecurity.
35.3.He fears economic hardship that threatens his capacity to survive as there is no opportunity to earn a living in Liberia. He would be exposed to extreme poverty and living conditions.
35.3.1.The Tribunal considers that it is reasonable for the applicant to feel this way. The country information indicates that Liberia is one of the poorest countries in the world, its rural and urban economies lack opportunities, the industrial sector is small, there is significant underemployment and very low income in subsistence farming and the informal sector, energy prices and costs of living are high, health care and essential service delivery is poor, and in the case of hardship and poverty, the majority of the population must rely on private patronage.
35.3.2.The Tribunal accepts that despite the applicant’s employment and employability in Australia, it is likely that he would face similar employment challenges to those faced by the Liberian population generally given the prevailing economic conditions, resulting in economic hardship and considerable challenges in supporting himself and his family.
35.3.3.The Tribunal notes however the country information indicating the eligibility of Liberian returnees for assistance from the International Organization for Migration and the Liberia Returnee Network, including resettlement and reintegration support, housing, vocational and skills training, and employment opportunities.
35.4.He believes the perpetrators of the civil war still live in Liberia and exist with impunity.
The Tribunal notes the country information supports this view, however there is no indication that these perpetrators are a current threat to Liberians generally or particular groups in the population.
35.5.He believes Liberia is unstable and another civil war could occur.
The Tribunal notes the country information indicates that in early 2018 the United Nations Mission in Liberia handed over full security responsibilities to the Liberian government. While the lack of security in Liberia is a concern, including the judiciary and security sectors lacking the capacity to arrest, detain and adjudicate criminals, levels of crime are not high by regional standards. The Tribunal further notes there is no indication in the country information that Liberia is unstable and in prospect of civil war.
35.6.He cannot return to Liberia due to the lack of support system and network and the hardship he would face.
35.6.1.The Tribunal reiterates the reasoning and observations set out in sub-paragraph 35.3.
35.6.2.The Tribunal notes the country information indicates that the experiences of returnees are mixed with some facing challenges and others resettling with relatively little stress. A returnee’s personal contacts and networks play a chief role in their successful integration.
35.6.3.The Tribunal considers that through the applicant’s association with the Liberian Association Queensland and existing contacts in Liberia it is likely he would receive some support on his return to Liberia, however the Tribunal is unable to assess whether this support would be sufficient to avoid hardship or poverty.
Findings of fact
Considering the applicant’s claims cumulatively, the Tribunal finds that:
36.1.The applicant genuinely fears returning to Liberia.
36.2.The applicant fears the psychological effects of returning to a place of previous trauma, and the economic hardship of trying to live and work in a country that is significantly economically disadvantaged and he has been long disconnected from.
36.3.There is no evidence to support the claim that the applicant would be targeted in Liberia for his Krahn ethnicity or as a returnee-refugee.
36.4.The applicant’s fears are not of systematic and discriminatory conduct or treatment directed at him and serious harm, including significant physical harassment or ill-treatment and significant economic hardship, and therefore do not amount to fears of persecution.
36.5.There is not a real chance the applicant would be persecuted in Liberia for any of the convention reasons.
36.6.There are no grounds for believing that, as a necessary or foreseeable consequence of the applicant’s return to Liberia, there is a real risk the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman conduct or degrading treatment or punishment.
What is the status of the applicant’s Liberian passport?
The Department of Foreign Affairs (DFAT) Thematic Report for the Economic Community of West African States (ECOWAS) 2020, of which Liberia is a member, states generally that individuals returning to their country of nationality will ‘be able to acquire recognition of nationality even if they have lost their identity document.
Country information indicates that Liberian government officials have been involved in corruption involving unlawful issuing and/or sale of diplomatic passports. Few sources report on fraudulent practices in relation to ordinary passports although generally, corruption among government officials is considered to be prevalent in Liberia.
· ‘Veneers of governance: Lessons from Liberia’s growing vulnerability', Gregory Coleman and Ben Spatz, Global Initiative Against Transnational Organized Crime, 29 June 2022
· 'Liberia Country Security Report 2022', Overseas Security Advisory Council (OSAC), 14 June 2022
· ‘Country Reports on Human Rights Practices for 2021 - Liberia’, US Department of State, 12 April 2022
· The report addresses corruption in various sectors, please see pages 30-31 particularly for corruption among state officials: 'BTI 2022 Country Report Liberia', Bertelsmann Stiftung, 22 February 2022
· Liberia scored 29 on a scale of 1 to 100 for the 2021 Corruption Perceptions Index (CPI), ‘Corruption Perceptions Index 2021', Transparency International, 24 January 2022
· ‘Freedom in the World 2022 - Liberia', Freedom House, 2022, section C2
· ‘State of Corruption Report 2021', Center for Transparency and Accountability in Liberia (CENTAL), 28 September 2021
· 'Liberia: Overview of corruption and Anti-Corruption', Krista Lee-Jones, Roberto Martinez B. Kukutschka, Anderson Miamen and Guillaume Nicaise, U4 Anti-Corruption Resource Centre, 7 September 2019.
In 2018, a Nigerian national was reported to have been charged with offences having fraudulently obtained ‘a valid Liberian biometric passport’ issued to him by the Ministry of Foreign Affairs on 18 January 2018. The Center for Transparency and Accountability in Liberia (CENTAL), following a recent ‘passport scandal,’ issued a statement alleging it ‘…adds to multiple similar cases reported about the continuous sale of Liberian Passports (ordinary, official, and diplomatic) to undeserving and unscrupulous individuals for probable dubious business dealings and other clandestine purposes, including but not limited to corruption, money laundering, drug trafficking, and human trafficking.’
· 'Nigerian National Jailed for Falsifying Liberian Passport', Augustine T. Tweh, Front Page Africa, 30 May 2018; Another report notes that ‘The document indicated that during investigation, the defendant admitted that he purchased the passport through one Kennedy at his business center in the Monrovia suburb of Vai Town,’ although it is unclear what the text in italics refers to, and further searches have yielded no results, see 'Jude Obi nabbed For Alleged Falsification of Liberian Citizenship', Comfort M. Johnson, Liberia News Agency (LINA), 30 May 2018
· 'Maintain the Integrity and Sanctity of the Liberian Passport: CENTAL Cautions the Weah Administration', Center for Transparency and Accountability in Liberia (CENTAL), 12 May 2022
Based on the applicant’s evidence and the country information, the Tribunal considers that:
40.1.The applicant has taken all possible steps available to him in the circumstances to obtain a Liberian passport, and has been unable to do so.
40.2.It is likely that the applicant fell victim to identity fraud and theft in the course of applying for his Liberian passport.
40.3.While there is no verified evidence before the Tribunal regarding the likely consequences for the applicant if he returns to Liberia without a passport and without the ability to obtain a passport, it is reasonable for the applicant to be concerned about how he would be treated by the Liberian authorities. The Tribunal notes the applicant’s evidence that the IOM case worker told him he would be detained, prosecuted and jailed if he returned to Liberia, however the applicant has not provided the Tribunal with any evidence to verify this.
Does the applicant have a right to enter and reside in the UK?
Based on the applicant’s evidence, the Tribunal considers that:
41.1.The applicant has taken all possible steps available to him in the circumstances to renew his UK travel documents, and has been unable to do so.
41.2.In the absence of any additional evidence from the UK Home Office, the applicant no longer has a right to enter or reside in the UK.
Consideration of the wife’s evidence
The Tribunal considers the wife’s evidence truthful and credible.
Other considerations
In considering the claims and evidence, the Tribunal has taken account of:
43.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
43.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
Based on the findings of fact:
45.1.The applicant is a non-citizen in Australia.
45.2.If the applicant is returned to Liberia, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
45.3.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Liberia there is a real risk the applicant will suffer significant harm.
CONSIDERATION OF REFERRAL FOR MINISTERIAL INTERVENTION
The Tribunal considers that the circumstances of this case are sufficiently unique and exceptional to warrant a referral to the Minister for possible consideration of the use of the Minister’s intervention powers.
In particular, having regard to the Minister’s guidelines on ministerial powers (ss 351, 417 and 501J of the Act) and to the applicant’s evidence, the Tribunal notes:
47.1.The applicant is married to an Australian citizen and shares with his wife three young children aged [age], [age] and [age] who are also Australian citizens. The Tribunal considers that it is appropriate to recognise that the applicant’s wife and children are highly likely to experience serious, ongoing and irreversible harm and continuing hardship if the applicant is required to return to Liberia indefinitely and they remain in Australia. The Tribunal considers that even if the applicant’s wife and children were able to return to Liberia with the applicant, and did so, they are highly likely to experience serious, ongoing and irreversible harm and continuing hardship due to the prevailing conditions in Liberia.
47.2.Australia’s obligations under the Convention on the Rights of the Child.
47.3.The applicant’s experiences as a child in Liberia during the civil war, separation from parents, grandparents and siblings, and eight years in a Ghanaian refugee camp then rehabilitation facility are highly likely to have been traumatic and had a long-term impact on his mental and physical wellbeing. The Tribunal considers that it is appropriate to recognise that returning the applicant to Liberia is highly likely to impact his psychological state in such a way as to result in serious, ongoing and irreversible harm and continuing hardship to the applicant, including re-lived trauma, inability to settle and integrate, and significant economic hardship.
47.4.The consequences of the applicant being unable to obtain a Liberian passport, the likely identity fraud and theft, and arriving in Liberia without a passport are currently unknown, however the Tribunal considers that these circumstances, that are beyond the applicant’s control, raise sufficient concerns about how the applicant would be treated by the Liberian authorities as to be recognised by the Minister.
CONCLUSIONS
Based on the evidence, analysis, reasoning and findings set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
MemberATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
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).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36 Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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Standing
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