1920202 (Refugee)

1920202 (Refugee) [2024] AATA 4389 (11 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ashrita Zeeshan (MARN: 0401052)
CASE NUMBER:  1920202
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Tania Flood
DATE:11 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 September 2024 at 11:30am
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – political opinion – athlete who petitioned government officials for funding and other support – revealed knowledge of corruption by government and association to journalist – accused of being anti-government, detained and tortured, and friend killed – assisted to escape and leave country – returned visa overstayer and failed asylum seeker – vague, inconsistent and implausible claims and evidence – some low-level activity accepted but no formal political activity – change of government and activity director now deceased – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Sierra Leone, applied for the visa on 27 September 2017. The visa was refused on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicant will face serious or significant harm on return to Sierra Leone for the reasons claimed.
The applicant appeared before the Tribunal on 29 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims and evidence
According to information contained in the application for the Protection visa the applicant is a [Age]-year-old citizen of Sierra Leone. He was born in Freetown and he indicated he is a Christian. He listed his occupation as Athlete. He said he became engaged to his fiancé in 2012. He stated that his parents, [sisters] and brothers live in Sierra Leone but he does not know their whereabouts. He stated that he completed primary school in Freetown and commenced secondary schooling but later withdrew. From early 2006 until September 2017 he was a [Sport 1 athlete] in Freetown. He lived at three different addresses in Freetown from birth until September 2017. In September 2015 he travelled to [Country 1] to attend the African Games. In May 2016 he indicated he transited through [Country 2] on his way to the [Country 3] Games.
The applicant declared that he entered Australia [in] September 2017 holding a Visitor visa. He indicated that he travelled to Australia using a passport issued by the Sierra Leone authorities [in] 2014.
The applicant’s written claims are contained in a separate statement of claims provided to the Department on 15 November 2017. The claims are summarised as follows:
He fears for his life in Sierra Leone where he has been tortured and imprisoned. One of his friends, [Mr A], already lost his life.
He was part of a [Sport 1] team which competed in [Country 1] in the All African Games. The team did very well. When they returned to Sierra Leone the coach and the athletes petitioned the Minister of Sport and other government officials for additional resources. They did not succeed.
Afterwards the team tried to attend an event in [Country 3]. They got as far as [Country 2] where they stayed for eight days. They could not continue to the event as they ran out of funds. They returned to Sierra Leone. Their coach accused the government of not assisting youth and sports in the country.
He and various members of the [Sport 1] team also tried petitioning various people to secure more government funding. They spoke to journalists about what was going on and they petitioned government officials and tried to get an appointment with government ministers to discuss their problems.
They tried to get an appointment with an opposition party member, [Mr B], who was vocally criticising the government, but were unsuccessful. Around August, before they left for Australia, it was reported that his house had been burned down because of his criticism of the government.
They also organised a peaceful demonstration on the street. The people wore their [Sport 1] t-shirts and held up signs and placards criticising the government. He was not present as he was sick on that day.
Because he could not attend the protest he was asked by the captain of the team to contact a journalist about their complaints. He called the journalist on the day of the protest but he did not answer and he left a voicemail message.
One or two days after the protest armed people knocked on his door and claimed to be police. Because they had no official documentation he refused to go with them and they then began beating him with batons and broke things in his house. Eventually they overpowered him and arrested him. He was put into a car and taken [to] [Location 1]. He does not know how long the journey took because he was in a lot of pain but he stated it was a long time.
On [Location 1] he was chained up and tortured. Other people that he knew were also detained there including the coach of the [Sport 1] team and [Mr A] who was a team member and friend. They were accused of creating propaganda against the government. Some of his friends were beaten severely and [Mr A] was hit very hard on the back of his neck.
After a few days of captivity a man from the community approached them and asked why they were being held on [Location 1]. He does not know how this man was able to enter the facility. Two days later he returned at night and instructed them to go with him. He helped them escape and took them to a [vehicle] and they travelled to a town called [Town].
In [Town] his friend who was hit on the neck became more and more unwell. They could not go back to Freetown and they could not get any medical help because the police were looking for them. They eventually moved to another nearby village to hide. His friend, [Mr A], died in his arms.
Eventually his coach and the vice president of the [Sport 1] association contacted them and helped them to get to [Country 2] from where they took a flight to Australia. In the process they collected his passport from his house. He does not know if any other visas or documents were arranged.
He does not know what happened to his fiancé and his [brother] after his arrest. The vice president of the [Sport 1] association told him they had gone into hiding because they were afraid of being targeted. He has not spoken to his fiancé or his mother or father since then because he is afraid for their safety. They are all in hiding and they do not know that he is in Australia.
He fears that if he returns to Sierra Leone he will be imprisoned, tortured and possibly killed. The persecution happened because of his opinions about the government and the minister of sport. He thinks that even if there is a change of government the police will still search for him. The police will find him wherever he lives in Sierra Leone and the authorities will not protect him.
In support of his claims the applicant provided [Social media] posts noting the death of the [Sport 1 athlete], [Mr A].
Interview with the delegate and the delegates decision
The applicant attended an interview (which the Tribunal has listened to) with the delegate of the Minister to discuss his claims for protection. He answered a range of questions and provided further information about his claims. Where relevant this information is referred to below.
On 23 October 2018 the delegate made their decision. The delegate accepted that the applicant was a member of the Sierra Leone [Sport 1] team and that as a member of the team he may have supported protests against the lack of support provided to the team. The delegate did not accept the applicant was arrested at his home, detained on [Location 1] or subsequently went into hiding or that his partner went into hiding. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 22 August 2024 the applicant submitted the following documentation to the Tribunal:
-A discharge summary from [Hospital] indicated that the applicant presented feeling generally unwell. He was given Panadol and IVF and was deemed safe for discharge.
-A letter from [Ms C] who claims to have been dating the applicant for almost five years. She expresses concerns that the applicant suffers with nightmares. She attached a copy of a NSW photo card confirming her identity.
-A character reference from [Mr D], Director of [Employer], dated 30 July 2024.
On 29 August 2024 the applicant appeared before the Tribunal to give evidence in support of his case. During the hearing the Tribunal discussed with the applicant his background in Sierra Leone, his involvement with the national [Sport 1] team of Sierra Leone, the claimed past harm he suffered as a result of his involvement in protests against the government and the reasons why he fears returning to Sierra Leone now. His testimony is summarised below.
Evidence at the hearing regarding his background
The applicant testified that he was born and raised in Freetown and has never lived anywhere else in Sierra Leone. He said he is of Temene ethnicity and is a Christian. He has never been married but before he departed Sierra Leone he was in a de facto relationship with a former partner. He remained in contact with his partner on arrival in Australia but the relationship subsequently ended three years later. For the past five years he has been in a relationship with an Australian citizen.
The applicant testified that his parents, [sisters] and one brother live in Sierra Leone. His parents are separated. His mother lives in [Location 2] and his father lives in [Location 3]. His siblings all live in Freetown. His siblings operate their own businesses. He stated that he has occasional contact with his family members.
The Tribunal put it to the applicant that contrary to the above advice he declared in the application for the Protection visa that he did not know the whereabouts of his family in Sierra Leone. He replied that when the past events occurred his family ran away from their community. He said that after he arrived in Australia he sought help from the Red Cross to locate them. Noting his earlier advice that his siblings are operating businesses in Freetown the Tribunal suggested that it appears his family are no longer facing difficulties in connection with his past problems. The applicant repeated the whereabouts of his parents and he said that his brother lives far from his previous address in [Suburb], Freetown. He added that since his family were not involved in his problems the authorities eventually forgot about them.
The applicant testified that he completed a Diploma in [Subject] in Sierra Leone. He said that he has been working in [work sector] in Australia.
The applicant testified that he took up [Sport 1] in 2002. He turned professional in 2006 and was a member of the national [Sport 1] team. The team attended the All African Games in [Country 1] in 2015. His team attempted to attend an event in [Country 3] but they ran out of funds and did not make it beyond [Country 2]. He came to Australia to attend a [Sport 1] event in Queensland but the team did not compete.
The applicant testified that [Mr E], whom he believes was principally behind the attempt to dispose of him, was the President of the national [Sport 1] association whilst he was in Sierra Leone and he believes that [Mr F] was the Minister of Sport. He said that [Mr E] died on [Date]. He said that he never personally interacted with [Mr E] in Sierra Leone.
The applicant testified that the government was led by the All People’s Congress (APC) in the years prior to his departure but there has been a change of power since and the Sierra Leone People’s Party (SLPP) is now the governing party. He stated that he was never a supporter or member of either party.
Evidence regarding his application for a Protection visa
The applicant testified that he was assisted to complete the application form and prepare a statement of claims by the Refugee Advice and Casework Service (RACS). He advised that he provided all the information, including his claims for protection, to the officer who assisted him and that person completed all the paperwork for him. He confirmed that he was made aware of the contents of the application before signing it. He confirmed that everything contained in the application form and his statement of claims is true and correct.
Evidence at the hearing regarding his involvement in protests against the government of the day
The applicant testified that when the [Sport 1] team returned from the All African Games in 2015 the coach of the [Sport 1] team began making representations to government officials over the lack of financial and medical support available to the team. He claimed that those efforts were ignored but the coach continued pleading for more support. He claimed that he personally attended some meetings with Ministers but never had the opportunity to meet with [Mr E].
The applicant testified that in 2017 he came upon a document that revealed the existence of corruption between the government and the [Sport 1] association. He claimed that the document revealed that a contract for [deleted] was awarded to the relative of a government official. He claimed he also found a receipt which showed that money was disbursed to the contractors who were relatives of government officials. He said that he called a journalist who later came to see him and he revealed the documents to the journalist. However he never saw anything published about it in the media. He stated that he believes the journalist may have exposed him to somebody in the government and that is why he was targeted.
The applicant testified that the team decided to stage a demonstration to highlight their concerns. He said the demonstration was held in 2017 at the Sports Ministry in Freetown which is located at the Saika Stadium. He said that the team was calling for more facilities and medical support and they also accused the government of corruption because they were aware that funds designated for the sport were not received by the association. He said that he was sick on the day of the demonstration and did not attend but he was assigned the task of calling a journalist to cover the event. He said he called the journalist but the journalist answer the call. He said this was the only protest organised by the [Sport 1] association that he was aware of.
Using the procedure set out in s 424AA of the Act the Tribunal put it to the applicant that he did not mention the matter of the documents proving government corruption that he had in his possession or that he revealed those documents to a journalist in either his written statement of claims or in his oral testimony to the delegate. The Tribunal pointed out that this omission is particularly relevant as he now is claiming that he believes the journalist exposed this information to the government. The applicant responded that he previously stated that he contacted a journalist who later came to see him at the gym. He said he informed that journalist about the documents and repeated his testimony that the journalist must have informed the police. The Tribunal agreed that while his written claims reference a visit from a journalist at the gym they do not mention the important fact that he allegedly revealed those documents to the journalist.
Evidence at the hearing regarding attack on his home and detention on [Location 1]

The applicant testified that two days after the demonstration in 2017 he heard a knock at his door late at night. When he went to investigate the people outside said they were police. He said he objected to the visit at that hour of the night and asked to see a warrant. When he refused to open the door they burst in and began beating him with batons. He said they overpowered him because he was still recovering from his sickness. He was taken from his home in a car and eventually found himself in a [vehicle] which took him to a detention camp on [Location 1]. He could not recall how long the journey to the [location] took because he was in significant pain from the beating he received.
The applicant testified that he was chained up and tortured for 4 days in total. He said that when he arrived at the detention camp he noticed that his coach and a fellow athlete, named [Mr A], were also being held in the same room. He said that two days after they arrived on [Location 1] a man came into their room and asked them why they were being held there and they explained that they were accused of spreading propaganda against the government. He stated that the man returned on the third day and on the fourth day of their detention the man helped them to escape by [vehicle].
The Tribunal put it to the applicant that his written claims indicate that he only came into contact with the man who assisted them on two occasions – the first time being two days after his arrival to [Location 1] and the second time when he assisted them to escape. The applicant insisted he told the Tribunal that the man came twice – once on the third day after his arrival on [Location 1] and a second time which was on the fourth day of his detention.
Upon further questioning about the detention camp he merely said it looked just like an ordinary place and he pointed to the hearing room and said it was something like that. He stated that there were about ten people being held in the room but he only recognised his coach and [Mr A]. He stated he does not know who the other people in the room were but he confirmed he spoke to one of them. He said they didn’t talk long because he was only concerned about his own safety. When asked if the man who helped them offered any assistance to the other people being held in the room he said he didn’t know. When asked if he saw the man talking to any other of the people in the room he said he did. When asked why he helped them and not the other people he said he has asked himself the same question. He again said it was a mystery to him.
Using the procedure set out s 424AA of the Act the Tribunal put it to the applicant that his testimony that there were ten or so people being held in the room with him on [Location 1] and that he and the man who assisted them to escape had some verbal interactions with those people is inconsistent with his oral testimony to the delegate that no other people, apart from himself, the coach and [Mr A], were detained in the room where he was held. The applicant responded that he previously said that when he was placed in detention there were other people in the room. He said that he previously said that when he regained full consciousness he saw that his coach and [Mr A] were among those people.
Evidence at the hearing regarding time spent in hiding and departure from Sierra Leone
The applicant testified that the abovementioned man helped him to escape by [vehicle] to a nearby village called [Town] along with the coach and [Mr A]. He said that he does not know the name of the man but as he was able to approach them they thought he must be an influential community member. When asked how the man was able to get into the room where they were being held he said he did not know. He stated that no attempt was made to stop their escape from the [location]. When asked how that was possible he said it is a mystery to him too. He said the man just returned and asked them to follow him and they did. He said that a [vehicle] was waiting for them and they left. He said they never saw the man again.
He said that [Mr A] had been beaten badly on his neck while in detention and became very sick. He said they later moved to a place called [City] and by then [Mr A] was extremely sick. He said they were afraid to stay in [City] because they thought the police might look for them so they moved to another village nearby [City]. He could not recall the name of the third village. He stated that [Mr A] passed away about two weeks later in the third village and they buried him there. When the Tribunal expressed its surprise that he did not retain the name of the village where they buried his friend he said he is aware of the importance of knowing the location but it was a big village and the name didn’t stay in his head.
The Tribunal put it to the applicant that contrary to his above advice that he and his friends spent time in three villages his written claims state that they first went to [Town] and then to another village where [Mr A] died. The applicant repeated his earlier testimony that they fled to [Town], [City] and third village. He said its possible that he missed out the detail of the third village. He added that he had problems answering the questions put to him by the delegate because of the way he asked the questions. The Tribunal pointed out that it was comparing his written statement to his oral evidence to the Tribunal.
Using the procedure set out in s 424AA of the Act the Tribunal informed the applicant that a [Social media] post on the Sierra Leone [Sport 1] Association page from [2017] expresses regret at the death of [Mr A] suggests he died at a date much later than the timeframe he provided in his oral testimony and that additionally the nothing about the post or in the comments associated with it mention anything about [Mr A] disappearing or dying in suspicious or violent circumstances. The Tribunal put it to the applicant that this could indicate that he did not die in the way that is claimed. The applicant responded that [Mr A] died in May 2017. He said that the person who made that post is not aware of the date of his death or what happened to him. He suggested that the information about his death may have simply been passed on to the author who expressed sympathy.
Upon further questioning about their movements after escaping [Location 1] the applicant stated that they travelled from [Town] to [City] and from [City] to the third village by public transport. When asked how they paid for their fares he said that they explained their situation to some young people and they helped them. When it was suggested to the applicant that revealing their circumstances to strangers might have been risky in the circumstances he said that they just told those people they were stranded.
When asked where they stayed in [Town] the applicant said they just stayed overnight in a park. He said they moved on from [Town] because it was too close to [Location 1]. When asked why they chose [City] as their next destination he said it was because it was close to the border with [Country 2]. As to where they stayed in [City] he said they asked people for shelter which they provided free of charge. He confirmed they did not know the people and that they stayed there for one to two weeks. When asked why they left [City] he said it was because it is a relatively big town and they feared the police might search for them there. He stated that they travelled to the third village by motorbike and again some young boys provided the service free of charge. He said that [Mr A] who was very sick by this stage was placed on the motorbike between the rider and the back passenger. When asked if the riders of those motorbikes asked questions about the sick passenger he said they did not because they had been in the village for a few weeks.
The applicant testified that after [Mr A]’s death the coach made contact with the Vice-President of the [Sport 1] association to see if he could help them. The Vice-President, who was sympathetic toward them, told them not to go back to Freetown and he offered to assist them to travel to [Country 2] and then on to Australia.
Upon further questioning the applicant stated that the coach asked a person from the village if he could use his telephone. He happened to remember the phone number of the Vice-President of the [Sport 1] association. He confirmed that this contact was made after they moved to the third village. When asked why he only made the call then he said it was because they were running for their lives and didn’t think of it sooner. When asked why his written statement states that “eventually the coach and the Vice-President got in contact with them” he said it might be due to his poor command of the English language.
When asked what arrangements were made to enable them to get out of Sierra Leone he said that he is not 100% sure of what was discussed. He said that they reached the border by motorbike and help had been arranged by the Vice-President. He said the Vice-President was not present at the border but he sent a contact to help them and they crossed into [Country 2] where they met up with the other members of the [Sport 1] team. He confirmed he did so without being in possession of his passport which was still in his house in Freetown. When asked how and when he obtained his passport he said that the Vice-President arranged for somebody to go to his house and collect it and it was handed to him at the airport in [Country 2]. When asked how it was possible to cross into [Country 2] without his passport he stated that there is no strictness about passports at the border. When asked why the other team members were travelling out of [Country 2] and not Sierra Leone he said the Vice-President organised it that way because it was not safe for them to depart from Sierra Leone.
Evidence regarding his fear of returning to Sierra Leone now
Noting that the claimed events occurred seven years ago and that the main protagonist, [Mr E], is now deceased, the Tribunal asked the applicant why he thinks he would be harmed if he returned to Sierra Leone now. The applicant testified that the APC and the SLPP are the biggest political parties in the country. He said that if he handed the documents in his possession to the ruling SLPP party they would use it to the detriment of the opposition. He said that if members of the opposition party pursued him the current government will not stop them and the police would not be able to protect him. He stated that even though there is a change of government the police continue to work in the interests of the two main political parties.
As to whether he might face harm on return to Sierra Leone because he overstayed his visa and sought asylum in Australia the applicant stated that the Vice-President of the [Sport 1] team told him two or three years ago that he helped him once before but couldn’t do so again. Again he referred to the documents he has in his possession and said that if he revealed the existence of those documents it is likely that both the opposition and ruling parties would target him. When asked the whereabouts of those documents he said they are hidden safely somewhere in Sierra Leone. When pushed for further details he said the documents are somewhere in his family home. He said he does not trust anybody to collect the documents from where they are hidden so he would not be presenting them as evidence.
The applicant also stated that if he is required to return to Sierra Leone he will continue to be outspoken and voice his concerns about the problems faced by the national [Sport 1] team.
Using the procedure set out in s 424AA of the Act the Tribunal put it to the applicant that information contained in the delegates decision indicates that [Mr E], the Director Sports, signed a letter [in] August 2017 which was sent to the Australian High Commission in Pretoria. The Tribunal noted that the information indicates that the letter was written with the objective of assisting members of the Sierra Leone [Sport 1] team to obtain visa to travel to Australia. The Tribunal pointed out that the information indicates that he was named in the letter as a member of the team. The Tribunal explained to the applicant that this information is relevant because it indicates that he was recommended to go on an official overseas trip as a member of the national [Sport 1] team by a person he claims was intent on having him killed. The Tribunal noted that this information appears to undermine his claims that he was targeted by [Mr E] or the Sierra Leone government for criticising them. The applicant responded that the Vice-President was sympathetic to their cause and assisted them. He said that according to his knowledge the Vice-President slipped the document among others for [Mr E] to sign. He said that only himself and the coach were athletes whereas the majority of the team that came to Australia were not. He said that if [Mr E] had identified his name he would not have signed the letter.
Post-hearing submission
At the conclusion of the hearing the applicant’s representative requested additional time to respond in writing to the concerns raised at hearing. The request was granted and the Tribunal received a statutory declaration made by the applicant on 4 September 2024 which responds to six concerns raised with him during the hearing. Those responses are outlined below.
FINDINGS AND REASONS
Nationality of the applicant
Attached to the Department file is a copy of the applicant’s passport which verifies his claimed identity and nationality. Based on this documentation and in the absence of any evidence to the contrary the Tribunal finds the applicant is a national of Sierra Leone and has assessed his claims against Sierra Leone.
Credibility
The Tribunal found aspects of the applicant’s evidence to be vague and lacking in detail. There were also a number of significant inconsistencies in his evidence about what is claimed to have occurred in Sierra Leone and he raised a new claim in the hearing which he had not made previously. Further, there are elements of the applicant’s claims which the Tribunal finds somewhat implausible. All these concerns raise doubts for the Tribunal about the reliability and credibility of the applicant’s evidence and as explained below, the applicant’s responses to the Tribunal’s concerns raised with him at hearing do not, for the most part, overcome these concerns.
The Tribunals concerns are as follows:
The applicant’s involvement in complaints about conditions for the [Sport 1] team
There is no dispute that the applicant was a [Sport 1 athlete] and a member of the Sierra Leone [Sport 1] team and the Tribunal accepts this.
When making the application for the Protection visa the applicant claimed that he and other athletes from the [Sport 1] team petitioned the Minister of Sport and other government officials for additional resources for the team. He said they tried unsuccessfully to get an appointment with government ministers and an opposition party member to discuss their problems. Due to their lack of success the team organised a peaceful demonstration in early 2017 although he was not present as he was sick on the day. He indicated that he had spoken to journalists about the team’s complaints. The applicant gave less detailed evidence to the delegate during a Protection visa interview but referred to the peaceful protest mentioned above. He said the protest most likely occurred in May 2017. During the Tribunal hearing the applicant appeared to exaggerate his earlier claims by stating that he personally attended some meetings with government Ministers but never had the opportunity to meet with the Director of Sport, [Mr E].
The applicant’s claim that members of the [Sport 1] team criticised the Ministry of Sport and the Director of Sport about corruption and the lack of support for the Sierra Leone [Sport 1] team is consistent with information contained in a video which was posted on the Sierra Leone [Sport 1] [Social media] page[1]. The video shows protest action occurred in Freetown along the lines claimed by the applicant. Although this protest occurred in 2016 and the applicant claimed not to have been aware of any other protests other than the one he mentioned in 2017 the Tribunal has afforded him the benefit of the doubt and accepts that he advocated for better conditions for the [Sport 1] team sometime between his return from the All African Games in 2015 and the time he departed Sierra Leone. While the Tribunal is prepared to accept that he may have had some involvement in petitioning the relevant Ministries and liaison with journalists to highlight their concerns his undetailed and somewhat vague evidence did not convince the Tribunal that he personally played a leading role in negotiations or meetings with government Ministers.
[1] [Reference] – [the applicant] – Sierra Leone [Sport 1] [Social media] page.
As noted above the Tribunal is concerned that the applicant introduced a new claim at hearing. He claimed that he came upon documents in 2017 that revealed the existence of corruption between the government and the [Sport 1] association. He claimed that the documents revealed that a contract for [deleted] was awarded to the relative of a government official. He claimed he also found a receipt which showed that money was disbursed to the contractors who were relatives of government officials. He said that he called a journalist who later came to see him and he showed the documents to the journalist. While he never saw anything published about it in the media he stated that he believes the journalist may have exposed him to somebody in the government and that is why he was targeted.
The applicant’s response to the concern raised with him at hearing about the late introduction of this evidence was to insist that he had previously mentioned his interactions with a journalist who came to see him at the gym He said that on this occasion he showed the journalist the documents in his possession. In his statutory declaration dated 4 September 2024 the applicant draws the Tribunal’s attention to his written statement dated 17 November 2017 which states at paragraph 15:
“After this, members of my [Sport 1] team, including myself, tried to petition various people to help us get more government resources. We spoke to journalists about what was going on and after the came to the gyms – they were after information and wanted to interview us. I did not see any articles that were published. We also petitioned government officials and tried to get appointments with ministers in the government to tell them about our problems. I think during this time is when police first took notice of me”.
The applicant maintains in his statutory declaration that he showed the document to the journalist when he came to the gym. Further, he states that his written statement does say that the journalists were after information and wanted to interview them. He argues that the journalist would not have left his office to come and meet them unless there was information, such as a document, for them to show him. He contends that the use of the term ‘information’ in his statement is not limited to just verbal information.
As discussed with the applicant at hearing the Tribunal agrees that his written statement references a visit from an interested journalist to his gym but it does not accept that it can be inferred in any way from the written statement that he had allegedly uncovered and revealed sensitive documents about the government to the journalist. The Tribunal considers his argument that the journalist would not have bothered to come to the gym without an assurance that he had documentary proof spurious and in any event this does not account for why he failed to expressly provide this detail in his written statement or indeed in his oral evidence to the delegate. The Tribunal considers his claim to have revealed defamatory information about government officials to a journalist to be particularly significant especially as it is claimed that it was this action that led to him being targeted. The Tribunal considers the applicant has not adequately explained the late introduction of this important information and it is not persuaded that the omission of this detail from either his written statement or his oral evidence to the delegate can be considered a minor detail. The Tribunal is not persuaded and does not accept that he obtained such documents or revealed them to a journalist or that such documents remain in his possession as is claimed. The Tribunal has formed the view that the applicant has been untruthful about this aspect of his claims and considers this reflects poorly on his credibility overall.
The applicant’s claims of past harm, the time spent in hiding and his escape from Sierra Leone

As noted above, the applicant claims that soon after the protest rally which was staged in early 2017 people claiming to be the police came to his house late at night and forced their way in and assaulted him and forcibly took him to [Location 1] where he was detained for four days. For the reasons which follow the Tribunal does not accept this.
When asked at hearing about his experience on the [location] the applicant said he was placed in a room where he was chained up and tortured. He said that when he became aware of his surroundings he noticed that his coach and fellow athlete, [Mr A], were also present in the room. He later advised, in response to further questioning, that ten or so other people were also present. He said he did not know why the ten or so other people were being held there but he confirmed speaking to at least one of them. He also stated that the man who aided them to escape from the [location] had also conversed with some of those ten or so other people.
As discussed with the applicant his evidence regarding who was present during his detention on the [location] is not consistent with the information he gave to the delegate during his Protection visa interview, namely that apart from himself, his coach and [Mr A], there were no other people in the room. At hearing the applicant responded that he previously said that when he was placed in detention there were other people in the room. He said that he previously said that when he regained full consciousness he saw that his coach and [Mr A] were among those people. In the statutory declaration dated 4 September 2024 the applicant stated that his testimony at hearing was that he was only familiar with two other people, his coach and [Mr A], and he believes this is what he said to the delegate during his interview.    He states that he has since listened to the recording of that interview and he notes the questions and answers he gave:
Q1.     How many people were held with you?
R.       Three of us.
Q2.     Three in total?
R.       Yes, there were 3 of us from the [Sport 1] team.
Q3.     Was there anyone else there?
R.       No, I didn’t see any other person.
Q4.     Who were the people from your [Sport 1] team?
R.       [Mr A] and the coach.
The applicant states in his statutory declaration that his responses to the above questions were limited to the [Sport 1] team. He states that he understood the questions to be in the context of the [Sport 1] team and how many people he recognised. He states that during the Tribunal hearing he was asked how many people were there. He argues that his past statements are in alignment with the information he gave to the Tribunal.
As discussed with the applicant during the hearing the Tribunal has listened closely to the recording of his interview with the delegate. The Tribunal agrees that the questions and answers outlined above are generally consistent with what occurred during the interview. The Tribunal agrees that the responses given to the first two questions relate to who else he recognised from the [Sport 1] team. However, question three raised an entirely different question about whether anybody else was present in the detention centre. The applicant’s response to this question was that there were no extra people present. The Tribunal considers there was no ambiguity about either the question asked by the delegate or his answer to the question and that his response at the time of the delegates interview clearly indicated that there were no other people being detained on the [location] apart from himself, the coach and [Mr A]. The Tribunal is not persuaded that his responses account for the differing evidence he has provided over time in respect of this aspect of his claims. The Tribunal considers this also reflects poorly on his credibility and casts doubt on his claim to have been detained on [Location 1].
During the hearing the Tribunal also indicated its concern that the applicant appeared to have provided an inconsistent account of when and how often the man who aided their escape from [Location 1] visited them while they were in detention. On reflection of the evidence, and noting the clarification provided by the applicant at hearing and in his statutory declaration that the man visited them twice, once after 2 days (which was on the third day of their detention) and again on the fourth day when they left the [location], the Tribunal is no longer concerned about this aspect of his evidence. However, as discussed below, the Tribunal finds his evidence about the manner of his escape from [Location 1] ill-explained and somewhat implausible.
The applicant maintains that a man, unknown to him, entered the detention centre on [Location 1] two days after their arrival and after questioning them declared his disapproval with their detention. He claims that the same man returned on the fourth day of their detention and took them out of captivity and placed them on a [vehicle] to safety. During the hearing the Tribunal asked the applicant questions about the man’s identity and how he was able to freely enter their place of confinement on two occasions and enable them to leave the [location] without hindrance from his captors. The applicant responded that he did not ask the name of the man but he assumed by his ability to enter the detention centre that he must have been an influential community member. Upon further questioning he merely said that the situation was a complete mystery to him.
The Tribunal has considered the above responses but remains of the view that this aspect of the applicant’s evidence is implausible. The clear implication of the applicant’s claims is that persons within the government of Sierra Leone detained him with an intent to seriously harm him or in all likelihood kill him. Indeed he claims he was chained, beaten and tortured while in detention. Given this, and as discussed with the applicant at hearing, it is very difficult for the Tribunal to accept than an unidentified man was given access to detainees and permitted to take them off the [location] without hindrance. The applicant’s claim that the man must have been a respected community member does not change the Tribunal’s view about this.
The Tribunal also considers that the applicant’s account of his movements after the escape from [Location 1] has also changed over time. In his written statement and in his oral evidence to the delegate the applicant claimed to have spent time in hiding in two locations, firstly in [Town] and then in another village near the town of [City]. During the Tribunal hearing he stated that they spent one night in [Town] and then travelled to [City] where they stayed for one to two weeks before moving to a third village whose name he could not recall. When the introduction of the third village to his narrative was discussed with him at hearing he said it is possible he may have missed out mention of the third village previously.
Be that as is it may, the applicant’s written statement and oral evidence to the Department is that his fellow athlete, [Mr A], died and was buried in the second location whereas he informed the Tribunal that these events took place in the third location. The Tribunal considers the death and burial of his fellow athlete and friend and the details associated with these events would not easily be forgotten by the applicant. As discussed with him at hearing the Tribunal also finds it difficult to accept on a human level that he would not have committed to memory the name of the village where he claims he buried his friend so that at the very least he might inform his friends relatives of such.
The applicant’s evidence about where he stayed and how he and his colleagues moved about during their time in hiding was also unconvincing in the Tribunal’s view. When asked how they secured accommodation and paid for public transport between the three villages the applicant stated that they met some young people along the way who provided them with rooms and transport free of charge after they explained their situation. When the Tribunal expressed its surprise that they would reveal their problems to complete strangers given his expressed fears of being located by the police, he then stated that they simply explained that they were stranded and needed help. When the Tribunal enquired whether any questions were asked about [Mr A]’s incapacitation, especially in connection with their ability to transport him by motorcycle as is claimed he merely responded that they didn’t ask any questions as they had been in the village for a few weeks. As discussed with the applicant at hearing the Tribunal finds his evidence in this regard to be vague and implausible and does not find it convincing that those different groups of people were willing to offer them private accommodation and to transport them across the region essentially with little interest in what they were doing there.
Further, as discussed with the applicant at hearing the Tribunal finds it significant that a [Social media] post referenced in the delegates decision from [2017] on the Sierra Leone [Sport 1] [Social media] page[2], expresses regret at the death of [Mr A] but nothing in the post or in the comments associated with it mention anything about [Mr A] having disappeared or died in suspicious or violent circumstances. When the Tribunal put it to the applicant that this information might indicate that [Mr A] did not die in the timeframe he has presented or in the way he described the applicant confirmed that [Mr A] died in May 2017. He said that the person who made that post is not aware of the date of his death or what happened to him. He suggested that the information about his death may have simply been passed on to the author who expressed sympathy. In his statutory declaration dated 4 September 2024 the applicant states that he believes the purpose of the post was to inform people that [Mr A] had died and was not intended to tell people when or how he died. He requests the Tribunal to consider the credibility of his claim that [Mr A] died as confirmed by the post.
[2] [Reference] – [the applicant] – information concerning [Mr A] (AKA [Nickname]) – Sierra Leone [Sport 1] [Social media] page.
The Tribunal has considered the applicant’s responses and accepts, based on the available evidence, that [Mr A] is likely deceased. However, the Tribunal is of the view that had [Mr A] died in the manner which is claimed, and the circumstances were known to the Vice-President of the [Sport 1] Association, as is claimed, then there would likely have been some reference to the suspicious circumstances of his death or his disappearance reflected on the [Social media] page. This, along with the Tribunal’s other concerns discussed above, raises further doubt for the Tribunal about the credibility of the applicant’s claims.
As noted above, the Tribunal also has concerns about the applicant’s claimed departure from Sierra Leone and subsequent travel to Australia, not the least of which is the fact that one of the persons whom he claims was intent on killing him appears to have supported and assisted him to travel to Australia. In the circumstances the Tribunal considers it highly unlikely that [Mr E], the Director of Sports at the time, would have supported his inclusion as a member of the national [Sport 1] team and aided him to obtain a visa to travel to Australia, as this would act would effectively have placed him beyond his reach. When the information pertaining to these events was discussed with the applicant at hearing he said that according to his knowledge the Vice-President slipped the document containing his details among others for [Mr E] to sign. He said that if [Mr E] had identified his name he would not have signed the letter in support of his visa application. His response outlined in his statutory declaration dated 4 September 2024 states that he was led to believe by the Vice-President that there were other people’s names on the document who were not athletes and he believes that [Mr E] signed the letter without taking notice of the names.
The Tribunal has considered the applicant’s responses but does not accept them. It is not disputed that the applicant was a member of the Sierra Leone [Sport 1] team and had previously represented his country at international [Sport 1] events. In the Tribunal’s view, [Mr E] would have been aware of these facts and if he truly wanted him killed for raising allegations of corruption against him and/or the government of the day, he likely would have been alert to the fact that he might seek to flee his grasp by way of his inclusion in a team travelling outside of Sierra Leone. If the applicant’s claims are to be believed, the Tribunal considers [Mr E] would have scrutinised any documents associated with the [Sport 1] team’s upcoming travels for details of the applicant and would not have aided him to come on the tour to Australia by signing a letter inclusive of his details. These circumstances surrounding the support for the applicant’s travel to Australia cast further doubt for the Tribunal about the credibility of his claims.
The Tribunal also found the applicant’s evidence about the manner in which he and his colleagues were helped by the Vice-President of the [Sport 1] association to flee Sierra Leone to be vague and lacking in any convincing detail. For instance, the applicant stated at hearing that his coach contacted the Vice-President, who had always been supportive of their cause, by phone after their arrival in the third village. He did not, in the Tribunal’s view offer a convincing explanation as to why the coach waited until then to reach out for assistance from the Vice-President especially given the rapidly declining health of [Mr A]. Further, when asked about the arrangements which were subsequently made to get them across the border into [Country 2] his response was equally undetailed and unconvincing. He merely said they travelled by motorbike to the border where they met a ‘contact’ and moved across into [Country 2]. He did not in the Tribunal’s view provide a convincing explanation as to how he was able to cross the border without his passport, which according to him was only given to him at the airport.
The Tribunal has considered the abovementioned documents provided by the applicant on 24 August 2024 in support of his claims, notably a medical report, a letter from his partner and a character reference. The applicant did not claim to be suffering from a condition which would in any way interfere with his ability to provide evidence and the medical report before the Tribunal also does not indicate such. The letter of support from his partner indicates that he suffers with nightmares and is stressed and anxious. These events are not attributed to his claims but even if it is inferred they are related the Tribunal considers his partner’s knowledge of such events would be based entirely on the applicant’s own account of events rather than any firsthand knowledge of his experiences in Sierra Leone. Similarly, the character reference from the applicant’s employer, while noting that he sometimes appears stressed and worried about his visa situation, does not assist the Tribunal’s assessment of the veracity of his claims. This supporting evidence does not allay the Tribunal’s concerns about the credibility of the applicants claims.
For all the above reasons and given the concerns referred to by the Tribunal about the credibility of the applicant’s claims it does not accept that he uncovered documents which implicated the government in corrupt activity and revealed these to a journalist in Sierra Leone who subsequently exposed him to the police. It follows that the Tribunal does not accept that he has stored such documents in an undisclosed location in his family home in Sierra Leone as is claimed. The Tribunal also does not accept that the applicant’s advocacy for better conditions for the [Sport 1] team led to him being attacked and abducted from his home and detained on [Location 1]. The Tribunal also does not accept the applicant’s claims about escaping from [Location 1] and about being in hiding in one or more villages for a period of time prior to his departure from Sierra Leone or that his friend [Mr A] died and was buried in one of those villages due to injuries inflicted upon him while detained on [Location 1]. Nor does the Tribunal accept that the applicant escaped from Sierra Leone through [Country 2] with the assistance of the Vice-President of the Sierra Leone [Sport 1] Association. Nor does the Tribunal accept that the Vice-President was able to get [Mr E], the Director of Sport, to facilitate his inclusion on the [Sport 1] team and granted a visa to travel to Australia by subterfuge.
As noted above, the Tribunal aired concerns with the applicant during the hearing regarding information contained in the application for a Protection visa which indicated he did not know the whereabouts of his family. The Tribunal noted that this information is inconsistent with his ability to state at hearing where his parents and siblings are currently living and working. He replied that when the past events occurred his family ran away from their community. He said that with the assistance of the Red Cross he has since located them. In his statutory declaration dated 4 September 2024 he stated that his family ran away from their community because they were scared of being harmed because of him. He said that his testimony at hearing was more updated. While the Tribunal acknowledges the possibility that circumstances can change between the time of application and when giving evidence years later, as it does not accept the applicant was targeted and harmed in Sierra Leone for the reasons claimed it also does not accept that his family had cause to fear harm for reasons associated with his actions. Therefore the Tribunal also does not accept that the applicant’s family were living in hiding for a period of time or that he was ever unaware of their whereabouts.
Does the applicant meet the refugee criterion?
The applicant claims that his previous activism against members of the then government in Sierra Leone will continue to place him at risk if he returns to Sierra Leone despite that there has been a change of government and one of the key persons he fears harm from, [Mr E], is now deceased. He claims to still be in possession of incriminating documents which either of the two main political parties in Sierra Leone today would be threatened by. In his statutory declaration dated 4 September 2024 the applicant claimed to be scared of the current Commissioner of Police who is a close ally of both the main political parties. He stated that he is scared the government will use him and the police force to harm him.
As the Tribunal does not accept his claims of past harm from anybody within the former government or that he has incriminating documents in his possession it does not accept there is a real chance he will face serious harm on return to Sierra Leone in connection with those past events from anyone connected with the APC or the SLPP, the Commissioner of Police or police officers either now or in the reasonably foreseeable future.
During the Tribunal hearing the applicant stated that if he is required to return to Sierra Leone he will face harm because of his political beliefs. When questioned further about this statement he said that he will continue to be outspoken and voice his concerns about the problems faced by the national [Sport 1] team. He clarified that he is not claiming he will join a political party or advocate on political issues other than his concerns about the [Sport 1] team.
Based on his testimony the applicant was never a member or supporter of any political party in Sierra Leone in the past and while he expressed some negative comments at hearing about both the APC and the SLPP the available evidence does not support that he will actively involve himself in politics or publicly express any political opinions against either party in the future. At best the Tribunal is prepared to accept that the applicant might in future again voice opinions about under-resourcing of the national [Sport 1] team if he returns to Sierra Leone. The Tribunal accepts he did so in the past but did not suffer harm for this reason. There is nothing before the Tribunal to indicate that the applicant would behave in a manner which is markedly different to his past behaviour such that he would attract a different level of attention from the authorities or the police. Based on the available evidence the Tribunal does not accept there is a real chance the applicant will suffer serious harm if he returns to Sierra Leone now or in the reasonably foreseeable future for reason of his political beliefs or his beliefs about support for the national [Sport 1] team.

For completeness the Tribunal has considered whether the applicant would face serious harm in Sierra Leone as an athlete who overstayed his visa in Australia and sought asylum. The delegate considered this claim even though it was not raised by the applicant (and did not accept it) and notably the applicant did not mention this claim in the Tribunal hearing until it was brought to his attention. In any event as discussed with the applicant at hearing country information sourced by the Tribunal does not satisfy it that athletes from Sierra Leone who overstay their visas or make failed attempts to seek asylum overseas face a real chance of serious harm on their return[3]. The applicant responded at hearing that two or three years ago he spoke to the Vice-President of the [Sport 1] association and he told him that despite that he helped him before he could not do so again. He again referenced the incriminating documentation he claims to have in his possession in Sierra Leone.

100. As noted above the Tribunal does not accept the applicant’s account of the events which occurred in the past, including those relating to documentation in his possession and those involving the intervention of the Vice-President of the [Sport 1] association. The Tribunal does not accept the applicant held a political profile in Sierra Leone that brought him to the adverse attention of authorities in the past and based on the available evidence the Tribunal is not satisfied that he would be singled out on return to Sierra Leone and treated differently to any other athlete who returned having overstayed a visa and sought asylum abroad. While the country information sourced by the Tribunal indicates that the Sierra Leone authorities issued strong warnings to its athletes not to overstay their visas abroad and alluded to consequences for such behaviour there are nevertheless reports of athletes who have overstayed their visas returning home without incident. Based on the Tribunal’s reading of this source information it is satisfied that if the applicant returned to Sierra Leone now or in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
101. The applicant has not claimed that he fears returning to Sierra Leone for any other reason.
102. Based on the findings set out above, and having considered the claims individually and cumulatively the Tribunal is not satisfied that if the applicant returns to Sierra Leone now or in the reasonably foreseeable future he will face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Sierra Leone and therefore 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.
[3] Barrie M F 2016, ‘Sheriff Suma urges Sierra Leonean Olympians not to abscond’, BBC Sport 11 July; June 2016 DFAT response to questions from the former Immigration Department’s Country Information Service (CIS); Six more athletes who fled Games granted bridging visas, The Sydney Morning Herald, 29 March 2006; Concord Times, February 2018

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). For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone there is a real risk he will face significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2) of the Act.
DECISION

105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member
- Extract from Migration Act 1958

ATTACHMENT
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4389

11 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction