1929634 (Refugee)

1929634 (Refugee) [2020] AATA 1824 (20 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929634
COUNTRY OF REFERENCE:                   Liberia
MEMBER:Kate Millar
DATE:20 April 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 April 2020 at 8:08am

CATCHWORDS
REFUGEE – protection visa – Liberia – ethnicity – Krahn tribe – imputed political opinion – father’s association with previous president and role in army or government – previous refugee visa cancelled –– father killed and applicant injured by rebels – refugee in nearby countries – credibility – inconsistent evidence – country information – end of civil war – security, economic and social conditions faced by population generally – family members hold different subclass protection visa – access to Economic Community of West African States – does not meet criteria as member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 35A, 36, 424AA, 501
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

[The applicant] came to Australia in August 2009 on a Subclass 200 Refugee visa as a member of his mother’s family unit. He claimed citizenship of Liberia and was resident in [Country 1] at the time the visa was granted.
His visa was cancelled under s.501 of the Migration Act 1958 (the Act) on 29 November 2016, a decision which was remitted with the consent of the Minister from the Federal Court. [The applicant] was unsuccessful in a review of a subsequent decision not to revoke the cancellation of his visa before both this Tribunal and the Federal Court, and his Subclass 200 visa remained cancelled.
On 18 September 2019, he applied for a Class XA – Protection (Subclass 866) visa on the basis that he fears harm if he returned to Liberia, in summary because he fears retribution from rebel fighters in Liberia due to his Krahn ethnicity, his father’s role in the army, or because of an association with the previous President Samuel Doe. He also claimed to fear harm due to lack of security, basic social services, health care and the rule of law.
A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the visa on 14 October 2019 as the delegate was not satisfied [the applicant] was a refugee as defined by the Act or met any other alternate criteria for a protection visa.
[The applicant] applied for a review of this decision. He appeared before the Tribunal on 4 December 2019 and 15 April 2020. The Tribunal also took oral evidence by teleconference from his mother [Ms A] and his brother [Mr B].
Ultimately the Tribunal has found that circumstances in Liberia have changed significantly since [the applicant] left, as the civil war ended over 16 years ago. The United Nations High Commission for Refugees ceased recognising people from Liberia as refugees from June 2012. While economic conditions are harsh in Liberia, this is the case for all citizens of Liberia, and the Tribunal is not satisfied, taking into account [the applicant]’s particular circumstances, that he faces a real chance of serious harm or a real risk of significant harm as defined in the Act in the reasonably foreseeable future if he returns to Liberia.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations).
[The applicant] must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) to be granted the visa. This requires that he is 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.
In summary, to meet the refugee criterion, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
To meet the complementary protection criterion, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
In this case other members of [the applicant]’s family granted protection visas have Class XB Subclass 200 visas, and [the applicant] has applied for a Class XA Subclass 866 visa and he does not meet the criteria on the basis of his membership of a family unit.
Refugee criteria
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, the person is outside the country of their nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if:
·     The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion,
·     There is a real chance that, if returned to the receiving country, the person would be persecuted for one or more of those reasons, and
·     The real chance of persecution relates to all areas of the relevant country.
There are circumstances in which a person will not have a well-founded fear of persecution, which include where effective protection measures are available to the person in the receiving country; and, in certain circumstances, where the person can take reasonable steps to modify his or her behaviour to avoid a real chance of persecution (ss.5J(2)-(3)).
If the person fears persecution for one or more of the reasons specified in s.5J(1)(a), that reason must be the essential or significant reason for the persecution, the persecution must involve serious harm to the person, and the persecution must involve systematic and discriminatory conduct (s.5J(4)).
Instances of serious harm are defined non-exhaustively in s.5J(5). Section 5J(6) specifies that in determining if a person has a well-founded fear, 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.
Section 5L sets out considerations of a particular social group other than family, and s.5LA sets out provisions relating to whether effective protection measures are available in a receiving 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.
Complementary Protection criteria
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if there are 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.
At the time of this decision, there were no country information assessments for Liberia prepared by DFAT. The Tribunal has had regard to the specified Guidelines.
Claims specified in the application
In his application for the visa, in response to the question why did you leave that country/those countries? [the applicant] responded:
According to my parents, I fled Liberia due to the civil unrest between rebel troops and government forces. It was during one of the rebel’s major offensive aimed at capturing the capital city, Monrovia where we used to stay. My family is from the Krahn tribe that was hunted and persecuted by Rebel because of our tribal connection with the late President Samuel K. Doe, my grand-pa was an employee at the President’s farm and my dad was a soldier in the Army. During that attack my brothers, sister and I got missing from my parents after we ran out of our home due to rockets that was falling and killing people. We were found by a family friend who guided us as we walk through the forest from Liberia to [Location 1] refugee camp in [Country 2].
In his application form, in response to the question What do you think will happen to you if you return to that country/those countries? [the applicant] wrote:
I could be killed, seriously harm or disappear because some of the same rebel fighters who accused my late father of participating in raids carried out by government troops in which they loss family members, are in key government position currently. I am deeply worried about retribution. I am also worried about the lack of security, basic social service, healthcare and the rule of law. Armed robbery, secret killing, disappearance and economic hardship have increased significantly. The police lacks the necessary logistics such as vehicles, fuel, arms and other equipments or supplies to successfully perform their dutie in protecting lives and properties. In short, the country is not safe for me to return.
In response to the question Did you experience harm in that country/those countries? [the applicant] responded:
According to my parents, our family including me, was arrested tied and beaten unmercifully by rebel fighters due to our tribal affiliation with the late Pres Doe who farmed my grandpa worked at an army my dad was enlisted in. I was tied, beaten and left in our family while the rebel fighters to my dad down the road and murdered him. On their way back to our house to kill us, their commander arrived and instructed them to follow him to repel an attack immediately.
[The applicant]’s background
[The applicant] was born on [date] in Montserrado County, Monrovia, Liberia. In 2002 he left Liberia for [Country 2] and lived at [Location 1] Refugee Camp between 2002 and 2006. In 2006 he went to [Country 1] to [Location 2] Refugee Camp, where he lived until he was granted a Class XB Subclass 200 Refugee visa in 2009. He arrived in Australia [in] August 2009.
At that time, [the applicant]’s family unit comprised his mother, [Ms A], his stepfather [Mr C], his brothers [Mr B] and [Mr D], and his sister [Ms E] and her son. He said his stepbrother [Mr F] was born in [Country 1] and remains in [Country 1].
[The applicant] could not recall the names of his grandparents but could recall that his grandmother’s surname was [Surname 1]. He said he did not know the names of his mother’s siblings other than [Mr G], but knew she has more than five siblings, most of who are in [Country 3]. He could recall the names of two cousins; [Mr H] and [Mr I]. He later recalled his mother has 8 siblings.
His biological father had siblings, and he said he knew two names; [Ms J] and [Ms K]. He said his father had a lot of children, but he does not know the older children as he was not raised by his father. He said after he arrived in Australia his brother told him he has stepbrothers and stepsisters, but he has never met them in person.
[The applicant] identifies as being of the Krahn ethnic group and as a Pentecostal Christian. [The applicant] said his mother is Sapu, which is part of the Krahn tribe, and his father was Kpelle. [The applicant] has three sons; [Mr L] born in [year], and twins [Mr M] and [Mr N] born in [year]. He said the mother of the twins is his current girlfriend.
[The applicant] said he did not receive any education in Africa. His mother was [an Occupation 1], but the pay was low and as the youngest he did not get to go to school. When he came to Australia he went to high school to learn English. He said he finished high school in year 11 as he was not following the right friends. He studied as [an Occupation 2] at TAFE but dropped out six months before he finished the three-year course. While he did not qualify as [an Occupation 2], he obtained work [in the same industry], then in a shop, and then in a [specified workplace].
[The applicant]’s memory
As [the applicant] seemed to recall different facts at different points of the hearing; for example initially saying his mother had “more than five” siblings but being vague in his recall. At interview with the delegate he said that she had eight siblings. He provided inconsistent evidence, such as that he would be at risk in Liberia because if his name [Surname 2], but also that this was a common name and would not result in a risk to others with that surname. He initially said his father was in Government and being asked what role he equated it to a Minister Dutton, but then later acknowledged his father was a soldier.
Given this type of inconsistency, the Tribunal asked if he had any medical problems affecting his memory. [The applicant] he doesn’t have medical conditions but does have memory problems. He said he was knocked on the head as a child during the war. He was asked if he had undergone any medical or psychological assessment, including while in prison, and he said he had a psychology report which reports he has problems with indecision and with his memory.
[The applicant] was provided time after the hearing to provide the psychological report or any other medical information he would like the Tribunal to consider. He said he could obtain the assistance of his brother to obtain any further information or documents. No further information was forthcoming. At the second hearing, he said his brother attempted to get his reports, but was told that [the applicant] had to seek these reports himself despite being in detention.
Given [the applicant] said he had a psychology report, but did not provide it, the Tribunal views his evidence regarding diagnosed memory problems with caution. However, the Tribunal is also cognisant that [the applicant] is in immigration detention and says he has difficulty reading and writing, rating his ability to read and write as six or seven out of ten.
While the report was not before the Tribunal, the Tribunal has taken into account [the applicant]’s reported difficulty with his memory in making this decision. It has been mindful not to rely on small inconsistencies in recounting events that have occurred a long time in the past.
At the second hearing, [the applicant] claimed he was a child soldier in Liberia, and suffered injuries to his arms, legs and a bullet wound to his [body part] after caught by the rebels and beaten by them. He said he was captured by the rebels. He said he was separated from his parents and brother and was forced to hold guns and “they forced me to fight even though I didn’t want to” and they beat him and broke his [specified body parts]. He was asked when this occurred, as his previous evidence was that he fled Liberia after the death of this father. When he was asked why he had not raised this in his claim or at previous hearing, he said he did mention it. Notes from the previous hearing were put to him, that when the rebels came, he ran into the bush with the other children. [The applicant] maintained he had previously given evidence that he was caught by the rebels and forced to fight. It was put to him that if this had not formed part of his written claim or his previous oral evidence, the Tribunal may conclude he was not a credible witness.
A review of the recording of the previous hearing, showed he had not previously made this claim. At the previous hearing he said they all fled after the rebels took over the country. He said he lost his mother and brother and was alone, but then his brother found him. He said when he lost the safety of his mother and brother he was with the other children. He said if children were caught by the rebels they would give you a gun to go and fight. His mother and brother fled and he was hiding so the rebels would not kidnap him. His evidence was that rebels came and he and the other children ran into the bush. He said the rebels did not catch him, and then they left. He said when they came out of the bush, no-one was there but there were dead bodies on the ground. He said that couple of days or hours later he found his brother who was looking for him. In the community the police put up the pictures and names of children who were missing. He said his brother found him and they went looking for their mother. He went with his brother back to grandfather’s house. They would hide when they heard firing and look for food when there was no fighting. He and [Mr B] earned money loading cars, and when they had enough money, they paid for someone to take them to [Country 2]. On their way to [Country 2] they found his sister and brother [Mr D] and fled to [Country 2] then to [Country 1].
[The applicant]’s claim form states he was tied and beaten by the rebels. It does not state he was made to hold guns or to fight. This did not form part of his oral evidence at the first hearing and did not include a claim that he was made to hold guns and fight.
However, this was long ago, and [the applicant] was a child living in a war zone and whose father had been killed. It is not hard to envisage circumstances where it would be difficult to disclose a role with the rebels. There are reports of children as young as 9 or 10 being used by the rebels as soldiers.[1]
[1] “Up to 15,000 child soldiers in Liberia, UN says” >
The Tribunal accepts that the underlying facts asserted by [the applicant] are true, such as that his father was killed by the rebels and that he was injured by rebels, however these are significantly embellished on each occasion he had an opportunity to give evidence or made submissions. When confronted with differences in his evidence, he either maintained he had given evidence to this effect in the past, such as his account of being a child soldier, or minimised the significance of these differences, such as whether his father was a Minister in government or a soldier. [The applicant] could name people who played roles in the rebel army who are the Liberian government but could not make a tenable connection with why this would mean he specifically was at risk of any harm if he returned to Liberia.
The Tribunal finds [the applicant] attempts to bolster his claims where possible by embellishing the cause of the undoubtably traumatic events that happened in his life.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether [the applicant] is a refugee or would suffer significant harm if he were to return to Liberia. He claims he will because of his Krahn tribunal links, his family association with President Samuel Doe or because of the lack of security, healthcare and the rule of law. A later claim was made that there was a land dispute between his grandfather and a person named [Mr O] .

It is for [the applicant] to specify the particulars of his claim and to provide sufficient evidence to establish the claim (s.5AAA). Within this context, the Tribunal was mindful that [the applicant] was not represented, is currently in immigration detention and rates his literacy as six or seven out of ten. It is also mindful that the events on which his claim is based happened many years ago when he was a child, and he claims to have some problems with his memory.
Nationality/receiving country
[The applicant] claims to be a citizen of Liberia. He provided a copy of a birth affidavit, issued by the Republic of Liberia in [Country 1], which states he was born in Monrovia, Liberia. He has consistently stated he is from Liberia and was born in Liberia.
The Tribunal is satisfied he is a citizen of Liberia and that Liberia is the receiving country for the purposes of the legislation.
General information on Liberia
Liberia, the first independent African state, went through two civil wars between 1989 and 2003. The conflict killed more than 250,000 people, mainly civilians, and led to a breakdown in the rule of law.
President Samuel Doe, an ethnic Krahn, carried out a military coup in 1980, executing President Tolbert and 13 aides.[2] The CIA World Factbook states that the coup ushered in a decade of authoritarian rule. President Doe is reported to have heavily favoured his own Krahn tribe and the Mandingo.[3]
[2] p.10
In December 1989, Charles Taylor launched a rebellion that led to prolonged civil war. Taylor was elected in 1997, however fighting resumed in 2000, with his party the National Patriotic Front of Liberia (NPFL) seeking revenge on ethnic groups the Doe regime had favoured.[4]
[4] p.11
In June 2003 a Comprehensive Peace Agreement was signed ending the war.[5] In the same year a disarmament, demobilisation, rehabilitation and reintegration program for ex-combatants was established.[6]
[5] >
In 2005 Liberia elected President Ellen Johnson-Sirleaf, the first democratically elected female President in Africa, who commenced a program of rebuilding. In 2005, the National Transitional Legislative Assembly of Liberia enacted a Truth and Reconciliation Act and the Truth and Reconciliation Commission of Liberia issued its report in 2009, in which it said all factions were responsible for the commission of gross human rights violations. [7]
[7] >
In 2017/2018, Amnesty International reported that many of the recommendations from the Truth and Reconciliation Commission were yet to be implemented.[8]
[8] >
In a 2011, a study undertaken by the University of California, Berkley Talking peace: A population based survey on attitudes about security, dispute resolution and post-conflict reconstruction in Liberia
Although 49% of the respondents identified ethnicity and ethnic divisions as one of the causes of the civil wars, few respondents (4%) identified ethnic divisions or tribal violence as current factors of insecurity. However, 8% of the population reported experiencing problems along ethnic lines. Such problems were most frequently reported in Lofa (16%) and Grand Gedeh (10%).
Amongst those surveyed, 5% reported problems with the Mandingo ethnic group, 1% with Gio and 1% with Krahn. Land disputes were the most common type of dispute,[9] followed by domestic violence, loan repayments, and noise and disturbances.[10] Liberia is reported by Freedom House to have had a period of more than a decade of peace and stability following the end of the civil war in 2002. The first peaceful transition between leaders occurred in 2017.[11]
[9] Ibid at p.47
[10] Ibid p.49
[11] >
In 2012, Charles Taylor was found guilty of war crimes by the Special Court for Sierra Leone for crimes committed in Sierra Leone and was sentenced to 50 years’ imprisonment.[12]
[12] >
On 30 June 2012 cessation clauses came into effect for Liberia, with the effect that the UNHCR no longer regarded people who fled Liberia to be refugees.[13] The cessation clauses relate to the specific set of circumstances, and does not mean that [the applicant] could not be regarded as a refugee. It does, however, show that the circumstances at the time he left Liberia have significantly changed.
[13] >
The current President, George Weah, has endorsed the establishment of a war crimes court to look at atrocities committed in the 1989-1996 and 1999-2003 civil war,[14] however the Tribunal could not locate any reports of this having occurred.
[14] >
The Office of the High Commissioner for Refugees (OHCR) states that despite significant progress made in the last 14 years, Liberia faces serious human rights challenges, many of which stem from historical social divides, discrimination and impunity.[15]
[15] >
The US Department of State recently reported that the law in Liberia recognises 16 indigenous ethnic groups, and long-standing disputes regarding land and other resources among ethnic groups continues to contribute to social and political tensions.[16] Citizenship and land ownership are restricted to those of Negro descent. [17]
[16] p.29
[17] at p.29
The United Nations Mission in Liberia (UNMIL) withdrew from Liberia on 28 June 2018.[18] It had turned over full security responsibility to Liberia in 2016.[19]
[18] >
In terms of in the foreseeable future, Liberia has now experienced a peaceful transition in government following the 2017 election of George Weah. However, the economic situation in Liberia has declined, with a report on 21 December 2019 by the BBC News of government workers not being paid and shops shutting.[20]
[20]
Perceived political opinion as a supporter of President Samuel Doe
[The applicant] said that before the war in Liberia everything was OK. He said when the war started his father was working for the Doe government. After the war started there was tribalism, with tribes fighting. His father was in the army and when the Charles Taylor government came in, they were from a different tribe, and started looking for people who worked for the Doe government and killed them.
[The applicant] stated his father had a role in the government. He could not specify the role, but said it was like a Minister. It was put to him that in his claim form he said his father was a soldier, but he now claimed had a role in government. [The applicant] said his role was the same a soldier as he was trained militarily. It was put to him that he had not previously claimed his father was in government.
[The applicant] claimed that [his name] would be specifically known to people in the government and he would be targeted on his return.
[The applicant] said that at the start of the civil war, he went with his mother, brother and sister to his grandfather’s house where his father lived. His mother went to get fresh water, and when she returned said a rebel had caught his father and killed him. This was because the rebel recognised his father as part of the Doe government. [The applicant] said he was in the house with his brother and sister, and they ran out into the bush. After his father was killed the rebels came and took over, and he was separated from his mother because everyone was running, particularly the children as if the rebels caught them they would be given a gun to go and fight. He said he was not caught by the rebels, and they came out of the bush and saw his father’s body on the floor, but he couldn’t see his mother. After a period of hours or days he found his brother [Mr B] who had been looking for him.
On being asked what role his father played in the Doe government, [the applicant] said he wasn’t sure, then said he was in the army and in the Doe government.
[Mr B] gave evidence and said according to his mother his father was killed. [Mr B] could not remember where he was killed and that he was not with his father. He said the rebels came to his house, tied them up and beat them and took his father away.
[Ms A] also gave evidence about the death of [the applicant]’s father. She said her father worked on the farm owned by President Doe. She said she and [Mr P] went to speak to her father out on the farm and were found by the rebels. The children were left with her father at the farm. She said [the applicant]’s father was killed because he was an army man and the rebels were looking for government soldiers. Her previous husband was identified as a soldier after he was told to pull up his trousers, and she was there when this happened. She said the rebels would stop men and tell them to pull up their trousers to look at their feet. They could identify a person as soldier by looking at their feet as only soldiers had boots, and these left marks on their feet. She was taken by the rebels
[Ms A]’s evidence was put to [the applicant] under s.424AA of the Act. Specifically, information put to [the applicant] was [Ms A] said that the rebels checked his father’s feet to see if he was a soldier. This was relevant to the review because if it relied on this information, the Tribunal would find it is not consistent with his father having a profile in the Doe Government, or being a person of interest to the rebels. It was put to [the applicant] that the Tribunal would also find that he would not have a high profile on his return or be targeted for any association with the Doe government.
[The applicant] chose to respond at hearing and said his mother did not say this was how they identified everyone. He said the rebels they had many ways to identify soldiers. [The applicant] said his mother’s evidence confirmed that his father was a soldier, but he may not have been high ranking or a person of interest, but this doesn’t matter. He doesn’t think his father had to be high ranking for him not to go back to Liberia.
The Tribunal finds [Ms A] account of the death of [the applicant]’s father at hearing the most persuasive as she was present at the time, and [the applicant] and [Mr B] both said they could only report what she had told them. It accepts that [the applicant]’s father was in the army and was killed as a result of rebels identifying him as serving in the army. It finds that at that time this was because he was identified as being a soldier by the appearance of his feet. It does not accept his father had an association with the Doe government other than as a soldier.
[The applicant] said that people on social media know the surname [Surname 2] and this means he would not be safe. He said anyone with the surname [Surname 2] would be at risk. He had earlier stated that [Surname 2] was a common name in Liberia, and that not everyone with the surname [Surname 2] would be at risk. His claim that the surname [Surname 2] would put him at risk is not consistent with his contact with people with the surname [Surname 2] on [social media]. There are no reports of harm to those people, some of whom live in Liberia, and [the applicant] did not claim any of those with the same surname had been harmed or targeted.
[The applicant] claims that he fears harm from Prince Johnson, and other people from the Taylor regime who are in politics. Prince Y Johnson was named as one of the top perpetrators in the Truth and Reconciliation Commission and is expected to be the first person to face the war crimes tribunal.[21] The delegate notes he is a current senator in the Liberian government. At hearing he claimed he also feared harm from General Butt Naked,[22] who was a rebel and now has a position in government.
[21] General Butt Naked is a nickname for Joshua Milton Blahyi, who confessed to killing over 20,000 in the civil war He is now an evangelist preacher:
The Tribunal accepts that Price Johnson has a role in government. The Tribunal does not accept that [the applicant]’s father had a high profile or was a senior army officer or that he held a position in the Doe government.
There is no information before the Tribunal to suggest those with the surname “[Surname 2]” have been subject to attention by the government or of any individuals within government. The Tribunal does not accept that people with the surname [Surname 2] are targeted or that [the applicant] would be targeted because of a perception that he is a supporter of President Doe.
[The applicant] left Liberia as a child approximately 18 years ago and has not returned. The Tribunal does not accept he would be targeted by Prince Johnson, General Butt Naked or any others in power in the government, as it does not accept [the applicant] would be known to Prince Johnson or be of interest to him or to anyone else in the Government. The Tribunal does not accept his father was known other than as a soldier and does not accept that [the applicant] would be targeted by previous rebel fighters who are not in government positons as he claims. The Tribunal does not accept [the applicant] faces a real chance of serious harm because his father was a soldier in the Doe army.
The Tribunal also does not accept that previous supporters of President Doe or previous soldiers or the families of previous soldiers are currently targeted by others in the community or by government forces, or would be targeted in the reasonably foreseeable future, given the long period of peace in Liberia and the lack of any reports of such violence. It follows that the Tribunal does not consider there is a real chance or serious harm to [the applicant] because he, his grandfather or his father may be perceived to be supporter of President Doe.
[The applicant] claims in his application that he was tied up and beaten by rebels, however this did not form part of his narrative before the Tribunal or before the delegate of the events in Liberia. It was again claimed in the second hearing. These events occurred over 18 years before, and [the applicant] claims he has problems with his memory. He has been subject to traumatic events as a child. The Tribunal accepts in [the applicant]’s favour that he was injured by the rebels.
This is now over 18 years ago, and Liberia has experienced over 16 years of peace. While tribunal tensions remain, and in the past particular tribes have been associated with President Doe, the situation in Liberia has now changed as recognised by the cessation of refugee status by the United Nations in 2012.
Grandfather’s association with President Doe and land disputes
[The applicant] said he thought his grandfather worked in a plantation on one of the President’s farms. He said this was either President Doe or the President before him. [The applicant] said he thought his grandfather was working as security on one of the plantations. His mother [Ms A] said his grandfather did farming work growing food on the plantation.
As discussed above, the Tribunal does not consider any association or perceived association with President Doe in the past means that there would be a real chance of [the applicant] suffering serious harm in the reasonably foreseeable future.
After the hearing, [Ms A] provided a statement making a new claim that her father had a land dispute with a man named [Mr O] before the civil war and her father won the case. She said she believes [Mr O]’s children are in the army and they could identify [the applicant] by name. She said [Mr O] was [an Officer] in the NPFL and ordered men to burn down her father’s house, to kill [the applicant]’s father, and beat her unmercifully and this left a scar on her [body part]. She states that when [the applicant]’s father was shot, she now remembers hearing that they were sent by [Mr O] for revenge. She says [the applicant] will be identified by his surname and could be killed.
This is not consistent with her earlier evidence that her husband was identified by marks on his feet from wearing boots as a soldier and was killed as a result.
[Ms A], [the applicant] and other family members have friends on [social media] with the surname [Surname 2], some of whom are living in Liberia. There have been no allegations that they have suffered harm because of their surname. The Tribunal could not locate any reports of people with this surname being harmed in Liberia.
The Tribunal held a second hearing to allow [the applicant] to give any further information on this new claim. He said his mother told him after the last hearing that she had forgotten to say this in evidence. [The applicant] said he knew his grandfather owned land, but after the war his family did not own land any longer. He said when the war came there was confusion between his grandfather and another person about some land and the other person took the land. He said the name [Mr O] sounded familiar and he thought this was the person who killed either his father or grandfather and that he was [an Officer] in the Doe government.
The Tribunal finds that even if there was a land dispute, this does not result in a real risk of serious harm to [the applicant] in the reasonably foreseeable future if he were to return to Liberia. [The applicant] has not been in Liberia for over 18 years, and the death of his father occurred at that time. [The applicant] said his family do not own land in Liberia now, and it follows there is no real chance of him becoming embroiled in a land dispute.
The Tribunal finds the possibility of harm because of his grandfather’s association with President Doe or because of a land dispute is speculative, and does not amount to a real chance of serious harm or a real risk of significant harm.
Krahn ethnicity
Krahn is one of 18 listed ethnic groups in Liberia and comprises 4% of the population. Kpelle are stated to comprise 20% of the population.[23] [The applicant] said his father was Kpelle, and his mother is Sapu, which is a part of the Krahn people.
[23] >
On being asked why he could not return to Liberia, [the applicant] said he would be targeted because a tribal war is still going on, and people are still dying in secret. He said if he goes back it is possible this will happen to him because he cannot change his tribe, and he will be harmed because of his tribal identity. He said General Butt-Naked, who was a rebel leader and is now a pastor, has killed a lot of people and it is his side against our side.
The Tribunal could not locate current country information or reports of people who are Krahn being targeted in Liberia. From 2012, the UNCHR has ceased recognising people from Liberia as refugees. [the applicant]’s evidence that he could not change his tribe was inconsistent with his later evidence that he could identify as either Krahn or Kpelle, as his father was Kpelle, but he generally identified as Krahn.

On it being put to him the Tribunal could not locate information showing people who are Krahn are being targeted, [the applicant] said that there no evidence that people have not been targeted because they are Krahn. He said he has no evidence but he knows it, and people get killed every day for their tribe in Liberia.
[The applicant] was provided time after the hearing to locate any support for his assertion that are currently targeted because they are Krahn or because they have returned from the West. He said he could obtain the assistance of his brother to find information. No further country information was provided. At the further hearing of this matter, he said he searched the internet but could not locate any recent reports of harm to people who are Krahn.
On the basis of the information before the Tribunal, which is described above, the Tribunal finds that the Krahn have been both the perpetrators and the persecuted in the past, with those associated with the Charles Taylor government seeking revenge on the Krahn and Mandingo. However over 16 years have passed since the end of the civil war. While many Liberians surveyed by the University of Berkeley saw the cause of the past conflict being tribal or ethnically based, the majority do not see this as a current cause for insecurity. Of those that were reported to see conflict along tribal lines, this related to land disputes and domestic violence.
As a result, the Tribunal finds while [the applicant] has a subjective fear of harm because his father was killed by rebels, and he and his brother had to flee Liberia, the circumstances in Liberia have now changed for people who are Krahn, with over 16 years since the end of the civil war, and over seven since the UNHCR ceased recognising people from Liberia as refugees. As a result, and the Tribunal finds that there is no more than a remote chance [the applicant] would suffer serious harm as a result of his ethnicity.
Returnee from Australia
[The applicant] said that if he returns from abroad people will assume, he has money and he will be targeted for armed robbery.
[The applicant] was provided time after the hearing to locate any reports on the internet to show that people are targeted because they have returned from the West. No further country information was provided. The Tribunal could not locate any reports of returnees being targeted in Liberia.
From 2012, the UNHCR has been assisting Liberians to return to Liberia. UNHCR report that between 2004 and 2011, 169,300 Liberia refugees returned and of these 138,600 were assisted by the UNHCR.[24]
[24] >
The International Organisation for Migration has assisted over 7,500 Liberians to return to Liberia, including form the United Kingdom, Holland, Libya, Morocco an Senegal,[25] and the Tribunal considers that if these groups had been targeted, there would be reports of this occurring given it was supervised by an international organisation.
[25] >
The UK Government advises there is a high level of crime in Monrovia, including armed robbery and foreigners are occasionally targeted “although Liberians are the main victims of crime”.[26]
[26] >
The Tribunal finds that there is a generalised risk of being subject to crime in Liberia, and this applies to the population generally, not to [the applicant] personally, or to [the applicant] as a member of social group comprised of people returning from the West.
General Conditions in Liberia
According to UNHCR, the administration of President Weah in its first year of office to January 2019 did not have major security challenges, but resource constraints continue to remain a challenge in building Liberia’s national security system.[27] The economy is expanding at 0.4% and inflation is at all all-time high. This undermines the welfare of Liberians and refugees in Liberia. Human rights issues include harsh and life-threatening prison conditions, official corruption, lack of security for women and child labour. Recent protests have been held in Monrovia about the deepening economic crisis in Liberia.[28]
[27] UN High Commissioner for Refugees (UNHCR), UNHCR Submission for the Universal Periodic Review – Liberia – UPR 36th Session (2019), October 2019, available at:
[The applicant] said the conditions in Liberia are not stable, and if the current government remains there is a possibility he will be harmed. He said he has seen videos on Facebook. He said he is not safe and the economic situation in Liberia is dire.
The general security situation in Liberia is poor, with a risk of arbitrary arrest or killing by police.[29]
[29] 06134145168.html
Country information supports that the economic situation in Liberia is poor. He said if people find out he was deported there will be a stigma if he returns to Liberia. He will have no means of financial support and no family he really knows to take care of him. He said he has no house and no prospects.
[The applicant] is not without skills. He has worked [in the Occupation 2 industry] and in a [specified workplace]. He has worked in retail. The Tribunal finds he has skills that he can use to obtain work. [The applicant] argues that there is no work available for him in Liberia. He was asked if he could travel to other West African countries under the Economic Community of West African States (ECOWAS).[30] He said he would need money to travel and would not be able to get a job and earn money to leave Liberia. As family members in Australia would assist him financially if he were to leave Australia, the Tribunal does not accept he has no capacity to travel to obtain work, and that he could live in other ECOWAS states.
[30] Art. 59 states citizen of the community have the right of entry, residence and establishment
The decision of the delegate, provided by [the applicant], records a finding that he has family members in Liberia, as shown by [social media] communications and regular money transfers to people in Liberia. The delegate refers to [social media] communication between [the applicant]’s brother [Mr B] and [Ms Q] that acknowledge [Ms Q] is [Mr B]’s sister. The delegate states that at interview, [the applicant] acknowledged [Ms Q] was his half-sister. At hearing, [the applicant] said [Ms J] and [Ms K] were related but did not acknowledge [Ms Q]. He said he does not remember his father’s other children, but his brother told him he has stepbrothers and stepsisters.
[The applicant] said that he may refer to people as brother or sister, but he does not know the actual relationship. He said just because his family sends money to people in Africa, it gives no right to think they are related. He asked his mother and these people are not family members, but friends they know from Liberia. He said they are sending these people money, and they could not add to their burdens by asking them to take him in.
The Tribunal asked [Mr B] about the names of people to whom he had sent money. This included [Ms K], [Ms Q] and [Mr P]. On being asked about [Ms K], he said it was “kind of difficult” and that his mother knows a lot of people and they may be somehow related. He said family is not only biological and they also considered neighbours and friends to be family. On being asked why he sent money to people, he said because he can help people back home. On being asked if he would send money to [the applicant] if he was in Liberia, he said he does not accept he will return to Liberia because it is not safe, and he still has a future in Australia.
[Ms A] said she made friends on [social media] with other people who had the surname [Surname 2] as this was the same name as her children. She said they are not related, but just became friends because they had a common surname. She said her [social media contacts] call her mummy, but are not family. As it has been accepted by [the applicant] and by [Mr B] that they are related to at least [Ms K], the Tribunal does not consider [Ms A] a truthful witness in this respect.
[The applicant] said that as his father had other children he thought they were relatives, but he didn’t mean biological brothers and sisters. He said it does not mean he can rely on these people or could live with them.
Having considered the information before it, including the money transfers, the records on [social media] relied on by the delegate and the contradictory evidence of [the applicant], his mother and brother, the Tribunal finds [the applicant] has contact with others in Liberia who are sufficiently close to be regarded as family, whether or not they are biologically related. It finds he would not return to Liberia in the absence of any support as he has some connection to others living in Liberia. The Tribunal finds it likely he could rely on financial support from family members in Australia to re-establish himself in Liberia. The Tribunal finds he has skills from which he could seek to earn a living and to provide for his needs.
As a person who has been deported, [the applicant] says he will be stigmatised. While this may be the case, he has not provided information to show that any stigma that this carries would bar him from working or otherwise participating in the community, and the Tribunal does not consider this would result in a real chance of serious harm or a real risk of significant harm to him.
These circumstances are evident for all segments of the population. There is no information before the Tribunal that [the applicant] would be treated adversely compared to other Liberians because of his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal also finds that that the risk of lack of security, social services and health care is one faced by the population generally and not by [the applicant] personally.
Cumulative factors
The Tribunal has considered whether any of the reasons [the applicant] says he fears harm would, on a cumulative basis results in a real chance of serious harm to him in the reasonably foreseeable future if he returns to Liberia. The Tribunal is not satisfied the combination of any of the factors raised by [the applicant] being his grandfather’s association with President Doe, past land disputes with his grandfather, that his father was a soldier, his Krahn ethnicity or that he is a returnee from the West would result in a real chance of serious harm to him in the reasonably foreseeable future.
The Tribunal is also not satisfied this combination of factors together with the economic and security situation in Liberia result in a real risk of significant harm to [the applicant] as a necessary and foreseeable consequence of being removed form Australia.
CONCLUSION
[The applicant] is a Liberian national who left Liberia as a child after his father was killed by rebels after being identified as a soldier in the Doe army. He has received training and has work experience in Australia. He lived in Monrovia and has support networks available to him in Monrovia.
Circumstances have changed since [the applicant] fled Liberia during the civil war. There have now been over 16 years of peace, and Liberia has had a peaceful change in government. Refugee status for those who fled Liberia was ceased by the United Nations in 2012. While conflict in the past has been tribally based, and tribunal tensions still exist, circumstances have now changed. Tribunal does not consider there is a real chance of serious harm or a real risk of significant harm in [the applicant]’s case as he has not been in Liberia for 18 years, and the Tribunal does not accept he has any profile that would result in him coming to the attention of those in power. The Tribunal does not consider there is a real chance of serious harm to [the applicant] because of his tribe or an association of his family with a particular President, because of any land disputes or because his father was a soldier.
The economic situation in Liberia is poor, and [the applicant] has real concerns about the state of health care and social services. However the state of these services is the same for all citizens of Liberia, and does not attract Australia’s protection obligations, in that a person does not have a real risk of significant harm if the risk is one faced by the population generally and not by the non-citizen personally (s.36(2B)).
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to [the applicant] because of his race, religion, nationality, membership of a particular social group or political opinion or perceived political opinion. As a result, he does not meet s.5J(1)(b) of the definition of refugee, and does not meet the requirement to be person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that there is a real risk of significant harm to [the applicant] as a reasonable and foreseeable consequence of being removed form Australia. Any harm he may experience due to the economic or security conditions in Liberia are faced by the population generally and not [the applicant] personally and is not significant harm by reason of s.36(2B)(c). As a result, the Tribunal finds he is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
[The applicant] cannot satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. His family members do not hold protection visas as defined in s.35A of the Act. Accordingly, he also does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior Member

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

'Liberia: Former Notorious Rebel, Gang Leader Becomes Productive Citizen', All Africa, 05 September 2017, 20190111143330

[2020] AATA 1824

20 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction