2010168 (Refugee)

[2020] AATA 4634

2010168 (Refugee) [2020] AATA 4634 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010168

COUNTRY OF REFERENCE:                   Liberia

MEMBER:Jane Marquard

DATE:16 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 September 2020 at 9:47am

CATCHWORDS

REFUGEE – protection visa – Liberia – race – Krahn ethnicity – particular social group – returnees or former combatants – persons with mental illness – death of father – fear of revenge killings – physical injury – forced child soldier – civil war atrocities – separation from family – real chance – end of the civil war – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5A, 5H, 5J, 36, 65, 423, 501
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
GLD v MHA [2020] FCAFC 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZAAJ v MIBP [2015] FCCA
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZRSN v MIAC [2013] FCA 751

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is [an age]-year-old man from Liberia, born in [year] in [City 1] in the state of Grand Bassa. He left Liberia in 2001 and resided with his family in a United Nations High Commissioner for Refugees (UNHCR) camp in Guinea. He first arrived in Australia [in] November 2004 as a dependent on his mother’s Refugee [visa], with [number] of his siblings. His visa was mandatorily cancelled on 13 February 2017 under s.501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. The applicant applied for revocation of the cancellation, but the Department of Home Affairs (the Department) refused to revoke the cancellation. The Department’s decision was affirmed by this Tribunal (differently constituted) on 11 December 2018. Further details of the applicant’s criminal and migration history are set out later in this decision under the heading ‘migration history’.

2. The applicant has [number] children and a girlfriend in Australia, as well as his mother and [siblings].

3. The applicant applied for a protection visa under s.65 of the Act on 21 May 2020. A delegate of the Department refused to grant the visa on 10 June 2020.

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

5. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criteria, 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. More details of the criteria and other relevant legal principles are set out below.

   RELEVANT LAW AND PRINCIPLES OF REVIEW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).

8. 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.

9. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and
   ss.5K–LA, which are extracted in the attachment to this decision.

   Complementary protection criterion

10. 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 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 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

11. 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, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

    The evidence taken into consideration by the Tribunal

12. In coming to a decision, the Tribunal has taken into consideration the Department files for this applicant for this and other matters, including his application forms for this visa, as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Liberia. The Tribunal may inform itself on any matter in such manner as it thinks appropriate.[1]

    [1] Section 33 of the Administrative Appeals Tribunal Act 1975 Cth.

    Summary of evidence before the Department

    Evidence of the applicant

13. The applicant made claims and provided information in his application forms and supporting documents. The applicant also provided evidence at an interview with the Department on 2 June 2020. A summary of his evidence follows.

14. He was born in [City 1 in] Grand Bassa, Liberia in [year] and lived there until 2001, when he was about [age] years old. From 2001 to 2003 he was in a UNHCR camp in Guinea. His mother, [and specified siblings] are all residing in Australia. He has never married but he has [number] children in Australia.

15. In his application forms he claimed that he left Liberia because ‘they’ killed his father in front of him when he was a child and hit his head with an AK47. He said that he was in fear of his life and suffered trauma from what he had witnessed. Asked at the Department hearing if he knew who killed his father, he said ‘not really’. He said that there was a civil war at the time. He said that his parents then moved to Guinea, and he followed later. Later he said that his mother married someone else in Guinea, but this man is no longer with his mother.

16. The applicant claimed that after his father died, he was taken by the rebels, although he was only [age range] years old. He then said that his mother and siblings ran away to Guinea, but he stayed in Liberia with the rebels, and later found his way to Guinea during the ceasefire. He said that he was able to find his parents because he spoke English. From 2001 to 2003 he was in a UNHCR refugee camp in Gueckedou, Guinea. His family did not return to Liberia.

17. He arrived in Australia with his family in 2004. He has worked as [an occupation] and [another occupation] in [a business].

18. He told the Department that he fears returning to Liberia as he has many enemies and will be killed. He said that the government would ‘not be aware of what happened to him’ when his enemies got hold of him. He could not relocate within Liberia, as the country is small and he would be easily found. At the Departmental interview, he said that there are a lot of guns that have never been returned to the peacekeeping forces. He has no idea who the people are that want to kill him, but it is because of the war. When the delegate of the Department put to him that the war ended in 2003, he said that there is no war, but they ‘see enemies’ and know exactly who you are.

    Evidence from [the applicant’s partner]

19. [The applicant’s partner] wrote to the Department in support of the applicant’s claims. She said that she had known him since 1 April 2020. She said that since then she had spoken to him every day four or five times. She said that he is respectful and caring towards inmates and workers. She said that they started a relationship on 29 April 2020 and he has always shown care and courtesy to her and her [child].

20. She said that when the applicant is released he will stay with her for a couple of weeks before returning to [City 2] to see his family. He will then return to live with her in [her state] and they plan on marrying and settling down. She said that she was willing to support him in every way. She said that he was not a risk to the community or anyone around him.

    Migration and criminal history

21. The applicant’s migration and criminal history provides background as to why the applicant has applied for a protection visa 16 years after arriving in Australia. His criminal history is not otherwise relevant to the question of whether he meets the refugee or complementary protection criteria.

22. Departmental records indicate that the applicant’s mother claimed in her application for a Refugee Visa [that] the applicant’s father was tortured, beheaded and mutilated in front of her. It was claimed that his mother was raped and also witnessed the summary execution of her [specified family members]. The applicant’s mother and his siblings fled to Guinea to a UNHCR refugee camp in 1990. According to the records, the applicant’s mother married her second husband, [named], in Guinea.  He went missing in 2003 when he left Guinea to look for relatives in Liberia.

23. The applicant arrived in Australia [in] November 2004 as a dependant on his mother’s Refugee [visa], along with his [number] siblings. They were all granted citizenship.

24. The applicant has a substantial criminal record as set out in the National Police Certificate referred to in previous Tribunal cancellation decisions.

25. The applicant was convicted of [various offences] in 2007.

26. He was convicted of an offence of [specified offences] in February 2008. He was convicted of breach of probation order in August 2008. He was convicted of breach of bail condition in September 2008.

27. He was convicted of [another offence] in May 2009.

28. He was convicted of an offence of [specified offences] in 2010.

29. He was convicted of [specified offences] in 2011.

30. He was convicted of [specified offences] in 2012.

31. He was convicted on [specified offences] [in] July 2013 and sentenced to 2 years and 8 months.

32. On 8 August 2013 the Department commenced cancellation of his refugee visa under s.501 character grounds. On 27 September 2013 a Notice of Intention to Consider Cancellation of his visa was sent to him. On 23 December 2013 the Department decided not to cancel his visa and he was issued with a warning that his visa may be cancelled if he committed further offences or breached the character test in future.

33. He was convicted of [specified offences] in 2016.

34. He was convicted of the offence of [specified offence] [in] January 2017 and immediately released on parole. He breached parole that day and was taken into criminal custody.

35. On 13 February 2017 his visa was cancelled under s.501 of the Act on the basis of criminal convictions. He applied for revocation of the cancellation decision, which was refused by the Department.

36. On 18 July 2017 he was taken into immigration detention.

37. [In] December 2017 he was returned to criminal custody.

38. [In] March 2018 he was convicted of [specified offences]. He was sentenced to [number] days’ imprisonment.

39. In April 2018 he was transferred to immigration detention.

40. On 18 September 2018 the Department decided not to revoke the cancellation. The applicant applied for a review of the decision not to revoke the cancellation to this Tribunal, (differently constituted).

41. On 11 December 2018 the Tribunal (differently constituted), affirmed the decision not to revoke the cancellation [details deleted]. This Tribunal decision on 11 December 2018 is referred to in this decision as the December 2018 cancellation decision.

42. [In] January 2019 the applicant lodged an application for judicial review at the Federal Court and the matter was remitted to the Tribunal for reconsideration. On 29 April 2020, the Tribunal (differently constituted), affirmed the decision of the Department not to revoke the cancellation [details deleted]. This Tribunal decision on 29 April 2020 is referred to in this decision as the April 2020 cancellation decision.

43. On 21 May 2020 the applicant lodged this protection visa application.

    Medical records

44. A number of medical reports were provided to the Tribunal. These reports are discussed in detail later in the decision.

    Summary of evidence before the Tribunal

    Evidence of the applicant in written submissions

45. The applicant said in written submissions to the Tribunal that he no longer considers Liberia his home as he was abused by rebels during his childhood and this has left him with trauma and suffering for life. He said that he fears returning to Liberia and would be constantly looking behind him. He apologised for his crimes and said he was looking for a fresh new start to life with his partner.

    Evidence at the Tribunal hearing

46. The applicant appeared before the Tribunal on 22 July 2020 by video hearing from [a named] Detention Centre to give evidence and provide arguments in support of his claims. The applicant’s authorised recipient, [his partner] also attended the hearing by telephone. Evidence was also taken from [name], who is the mother of the applicant. The applicant, [his partner] and the witness confirmed that they could hear clearly.  An interpreter assisted the Tribunal with [the applicant’s mother’s] evidence and occasionally with the applicant’s evidence. At times the applicant’s accent was difficult to understand but on these occasions the interpreter assisted. The law and procedures were explained to the applicant as he was unrepresented. The Tribunal referred to the medical reports from [Health Service 1], and asked him about his health, acknowledging that detention can be stressful and difficult, particularly during the Covid-19 pandemic. The applicant confirmed that he was feeling well enough to give evidence to the Tribunal and although he takes medication, he had not taken any medication on the day of the hearing. He said that his medication is for his ‘mental state’ and for his hand and he takes it daily. His partner said that one of his tablets is a sleeping tablet. He said that he had been taking medication for about three years.

47. A summary of the evidence provided at the hearing is set out below.

48. The applicant confirmed that he was born in [City 1 in] Grand Bassa in [year] and lived there until 2001. He then moved to Guinea, joining his mother and [siblings]. He does not know if [City 1] was his parents’ hometown or what his parents’ jobs were. His grandparents are deceased, and he did not have uncles, aunts or cousins. He said that he has no relatives living in Liberia, and ‘even his mother is afraid to return’. He does not know what ethnic group his family is from although he mentioned his mother is a Bassa.

49. He told the Tribunal that when he was very young his father was killed in front of the family and the applicant was taken by the rebels. He does not know what happened, but he found himself with the rebel group. His mother told him later that they took him away as they wanted boys. Asked if he was [age] old when he was taken, he said that he does not know the year. The Tribunal asked him what he could remember about the ten years he was with the rebels. He said that he has had flashbacks, and his mother has asked him who was looking after him. He told her he was looked after by a woman, who was [the wife of a member]. He said that this woman really liked him. Asked if he could remember where they lived, he said it was near the border to Guinea where the language was different. He lived in the house with the [member’s] wife. He was trained by the rebels, and it took a year before he could hold a gun and do other tasks.  The [member’s] wife called him ‘son’ and looked after him very well. He then had to go and fight for the rebels and there were a lot of child soldiers with him. Sometimes they had to shoot, and other times had to move around and do other jobs. It depended on what was going on. He said that ‘everyone had to shoot’ if protecting territory. They had no education. He has only learnt to read ‘a little’ in detention in Australia.

50. He said that he was a child at the time he was with the rebels and did not know what the war was about. He knew there were Krahn and Mandingo people and it was tribal, but he did not know anything about it. He was told what to do and if he did not do it then he would be killed. After a while it appeared normal to him.

51. The applicant said that after being with the rebels for some time, he found out who killed his father. He was about [age] years old at the time. The [member’s] wife, who had been looking after the applicant, told him while the [member] was on a mission that the [member] had killed his father. The applicant said that the perpetrator ‘paid a price’ for killing his father and he ‘got rid of him’. When asked to clarify, he said that he killed the [member] (the job was ‘done by me’) and then he had to flee the rebels to Guinea. The [member’s] wife helped him escape by taking him to the border where they were met by a person who helped him over the border. The wife knew about the killing of the [member], and she helped him leave.

52. He said that when over the border in Guinea, he asked the people helping refugees to help him find his mother. He only knew his mother’s first name. He thought that his parents were dead. Someone knew her name and they were reunited.

53. He confirmed that he travelled to Australia as a dependant on his mother’s [refugee] visa. His mother, [and specified siblings] are all residing in Australia. On the fourth day after his arrival in Australia he started working. He said that he tried to go [and study], but ‘nothing was sinking in’ so he continued to work. He has worked as [an occupation] and in [a business]. He has [number] children in Australia.

54. Asked why he fears returning to Liberia, he said that firstly, he has not been in the country for 19 years. Secondly, there is someone looking for him in Liberia. Asked who it is that is looking for him, he said that he does not know. He was asked why he thinks that someone is looking for him. He said that it was because of what happened before he left the country.  He said that there is a lot of trauma in the country. Based on what he experienced there, he does ‘not deserve to return’. Asked who he fears and for what reason, he said that he fears a family member of the [person] that he killed. They know he disappeared at the same time as the [person] and so they will have been looking for him for a long time, and the government will know he is back as he will have to provide papers on return.

1. The Tribunal asked him why family members would be looking for him when the killing happened during the civil war which was 19 years ago. He said that he has a ‘death threat’ over him. However, since he left the country there have been no threats made against him.

2. The Tribunal discussed with the applicant the political and security circumstances in Liberia, which have changed significantly since he left Liberia 19 years ago. The civil war ended in 2004, and the United Nations ceased recognising people from Liberia as refugees from June 2012. He was asked why former enemies would be interested in him after so long as it was 19 years ago and he left as a child. Furthermore, President George Weah, who is a popular leader, was sworn in on January 2018 with his Coalition for Democratic Change and Liberia is now peaceful. He said that this did not make him feel assured that he would not be at risk of harm. The applicant said that if the [person’s] family wanted to find him, they could do so as there were only 3000 to 5000 soldiers in his base and 500 to 600 people would have known him. He would need documents to enter the country and information would be passed on to the former soldiers that he was there.  He referred to another person he had heard of who had returned who had a warrant out for his arrest.

3. The Tribunal canvassed with the applicant a lack of country evidence suggesting that former Liberian refugees or activists who return to Liberia are targeted by the government or former enemies. He said that he would not be safe. He submitted that some refugees had just escaped the civil war conflict, but he had escaped as he was wanted by family members of a man he had killed.

4. The Tribunal asked the applicant to explain why he did not provide information about killing the [member] and fearing retribution from his family members to the Department or Tribunal earlier as it would have been expected that such a significant element of his claim would have been raised. He said that he did not like to talk about it.  He would not like to do what he did then, as the person that he is now.

5. The Tribunal raised with the applicant concerns as to whether there would be a real chance of serious harm or a real risk of significant harm, given that Liberia is no longer in civil war and large numbers of refugees have returned home without repercussions. He said that it would be difficult for him, as Australia is his home now. He said that the situation is different for people who were merely escaping the violence and fled the country. He fought with the rebels and has enemies who would seek retribution, and this would be corroborated by the government when they saw his papers on return. He said that he has a death threat over him.

6. The Tribunal also discussed with the applicant concerns he has in regard to economic hardship, poor health care and lack of familiarity in returning to Liberia. This discussion is referred to in the findings section below.

7. [The applicant’s partner] told the Tribunal that if the applicant is released from detention he will live with her in [her state]. He will be able to see his children and his own family. They will start a new life and plan on getting married and having a family of their own. If he is refused this visa, he will not see his family or children.

   Evidence of [the applicant’s mother]

8. [Name] is the applicant’s mother. She said that their family lived in [City 1 in] Grand Bassa. This was her parents’ hometown and she grew up there. Her mother passed away when she was a little girl and her father passed away during the war. Her brothers and sisters went missing during the war. She now has no extended family living in Liberia.

9. Her husband’s family were from the Krahn ethnic group. She is from the Bassa Tribe. Her husband worked [for] [Leader A].

10. She said that during the civil war in 1990, there was ‘killing everywhere’. The President, Samuel Doe, was a Krahn. When the rebels arrived in 1990 she, her husband and their children tried to escape as her husband was a Krahn and they were concerned he was well known. They tried to sneak away wearing Muslim clothes to the border. They changed their names and escaped during the night. At the border, somebody recognised her husband and the rebels killed him. The children were [age range] years old, and she was pregnant. The rebels said they knew him because he worked with [Leader A]. Anyone who was a Krahn was killed automatically. The family was detained for two days and a man came and asked questions in her language. She was crying and told this man that she was a Bassa. He took pity on them and allowed them to cross the border to Guinea. She met a man who helped them and took them to his house. She left the applicant at home with this man and the rest of the family went to a funeral of a neighbour. While they were at the funeral, the rebels attacked the village and when she came back, the man was dead and the applicant could not be found. She cried and looked for him everywhere. She spent three or four years looking for him. They went to another camp. She thought he was dead.  He was away from them from the age of [age] to the age of [age].

11. Asked where he was during this time, she said that she does not know where he was when he was between [age range] years old. She said that, according to the applicant, the United Nations Mission in Liberia (UNMIL) peacekeeping force looked after him from when he was [age range] years old. She does not know where he was.  He told her he was with the peacekeeping force from the age of [age] until he was reunited with her.

12. She was asked why she believes that the applicant would be harmed if he returned to Liberia, given that they left the region 18 years ago, the war ended in 2003/4 and there has been peace since then. She said that the applicant’s father was well known, they would think that the applicant was an enemy and would still try and harm him. There are still secret killings. There are people who would do this. She said that he could not return to Liberia as it would be very risky. His father’s enemies know, through ‘Africa talk’ that he has been in Australia and will know that he is back. She asked the Tribunal to reconsider his application as he has a partner now and ‘maybe with her things will change’.

    Post-hearing submissions

13. While the Tribunal was asking questions of the applicant’s mother at the Tribunal hearing, the applicant left the hearing room at the detention centre. The Tribunal telephoned the detention centre to find out where he had gone. An officer of Australian Border Force came into the hearing room and said that the applicant was upset and had returned to the compound and would not return. The Tribunal asked if counselling services could be put in contact with him. The officer said that he had spoken to the service provider at the detention centre, Serco, and counselling services had already been alerted. The applicant’s partner, [who] was still on the telephone to the Tribunal, tried to call the applicant and spoke to his roommate who said that he would not return to the hearing. With the consent of [the applicant’s partner] and his mother, the Tribunal continued to take evidence from his mother, as at that stage the Tribunal had completed questioning the applicant. After the hearing, the Tribunal contacted the Department to ensure that the applicant was availing himself of psychological support services in the detention centre.

14. As the applicant had left the hearing before it had ended, the Tribunal wanted to ensure that he had the opportunity to add any additional evidence. The Tribunal wrote to the applicant on 23 July 2020 to provide him with an opportunity to provide any further evidence or submissions. The Tribunal also raised some issues of concern and suggested that the applicant may wish to provide further information or submissions in relation to these matters. The Tribunal asked the applicant to comment further on the issue of whether he faces a real chance of serious harm or a real risk of significant harm, given the changes in Liberia and the return of refugees. The Tribunal also asked him to provide further information on his mental health, including medical reports if possible, given that he had missed a number of appointments and the information that his schizophrenia was in remission. The Tribunal also asked him to provide further information in relation to why he had not told the Department about fearing family members of a person he had killed in Liberia. Finally the Tribunal asked him why his mother had told the Tribunal that as a child he was looked after by the peacekeeping force, rather than by rebels.

15. On 30 July 2020 the applicant and [his partner] responded to the letter from the Tribunal. The applicant stated as follows:

    I would like to start by saying I am very sorry for walking out during the hearing, I intended on coming back, but however it was to hard for me to hear my Mum talk about what happened about my father and I could not bring myself to hearing her talk about it.  It is also painful to write this letter so I will write as much as i can the best that I can.

    When I leave detention, I will not be returning to [City 2] and instead I will be living with my [partner], where we will be starting a new life together.

    If I was to return back to Liberia, my life will be in danger as there is a target on my back due to being bought up with the rebals and being forced to do things I did not want to do. There are too many people that know me from being in the rebals, due to living with the [member] and his wife. With this, due to being forced to do things I did not want to do, these people will be looking for me when they hear of my return.  If they were to find me, they will not hesitate in harming me in anyway possible. With this fear of being harmed I will be constantly looking behind my back waiting for the day they find me.

    My mental health will also suffer due to not having the best of health care facilities and medical treatment that i need to help me. I will also suffer from being seperated from my family and my children. This will impact my health and mental state in a lot of ways. I have [number] children, and I dont want them to grow up without a father and them being told what happened to their father. Every time I speak to my Son he asks "Daddy, when are you coming home?"

16. [The applicant’s partner] also made the following submission:

    I fear for (the applicant’s) health and mental state if he was made to return to Liberia.

    All of (the applicant’s) family and children are in Australia and If the applicant is taken back to Liberia, I feel there could be a possibility of self halm to himself. There has been no indication of him wanting to self harm but i feel that if he was in Liberia he may feel this would be the only way out for him as he would be constantly looking behind his back in fear of being targeted and killed, this is no way too live. He will not have any family or any support and will be over there on his own not knowing anybody. Being away from his family and children he will not cope without having them there to help and support him, I think there will be a great chance of self harm and I know being taken away from his family will play a big part of him not being able to cope. (I have not mentioned this to him due to not wanting to get the thought into his mind). Also being taken back will bring on memories and flash backs of his past and what he was forced to do as he was growing up and flash backs of what he had witnessed not only with his father but with growing up with the rebals and being made to do things against his will. This will also play a huge part of his mental state due to not having anybody at all there for him to help him and support him when he needs them the most.

    (The applicant) has mentioned on numerious occasions that he would rather die in detention then to return, with this, I see great anxity in himself with the possibilty of being made to return. I speak to (the applicant) every single day on video chat at least 5-6 times a day and I can see the fear and anxity in his face with the great possibitlity of him being denied his visa and being made to return. He genuinely fears for his life and knows there is a target on his back if he is to return.

    If (the applicant) is granted a Visa, we will be planning on getting married and starting our own family. (We will also be doing this no matter the outcome). I am in the process of buying a house where (the applicant) will be moving in with me. I will be here to support him, get him to any appointments nessecery and making sure he has any medication needed. He will be away from his family, but he knows he will be able to visit them at any time or they are welcome to visit him at anytime. (The applicant) will also be working as he previously did before his accident at work.

    I know (the applicant’s) health and well being will be stable in Australia where he has the support of his family, rather then in Liberia where he has nobody at all. I also feel that this would take a toll on (the applicant’s) mum's health due to stress of him being sent back.

    Independent country information

17. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.

    Cancellation decisions

18. The Tribunal has also considered information in the two cancellation decisions by the Tribunal (differently constituted) – the December 2018 decision[2] and the April 2020 decision.[3]

    [2] [Deleted].

    [3] [Deleted].

    The applicant’s criminal record

19. The applicant’s criminal history is set out in detail in the 2018 and 2020 cancellation decisions. The Tribunal notes that the applicant, his girlfriend and mother made representations to the Tribunal that he had the opportunity to turn his life around with his new girlfriend and her family. The applicant’s criminal record and his future prospects are not relevant considerations to the question of whether the applicant meets the refugee or complementary protection criteria and have not been taken into consideration in making the findings on these criteria.

    DECISION OF THE DEPARTMENT

20. On 10 June 2020 a delegate of the Department found that although the applicant had not returned to Liberia since 1997, he is a citizen of Liberia. The delegate accepted that the applicant lived with rebels as a child and that his family escaped to Guinea. However the delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm if the applicant were to return to Liberia, given country information about current circumstances in Liberia.

    FINDINGS AND REASONS OF THIS TRIBUNAL

    Competency

21. There was no submission made by the applicant, his partner or his mother that the applicant was not competent to give evidence before the Tribunal. The Tribunal has nonetheless considered the Tribunal’s Guidelines on Vulnerable Persons[4] in relation to competency, given that the medical reports referred to a diagnosis of schizophrenia and the applicant was unrepresented.

    [4] AAT, Guideline on Vulnerable Persons, available on the AAT Website, >

    Although not bound by rules of evidence, the Tribunal may consider the rules of evidence set out in the Evidence Act 1995, NSW when considering competency. A minimum requirement for fitness to participate would appear to be that the applicant understands the nature of the proceedings, understands questions put to them, can respond relevantly drawing on their knowledge and experience, and can comprehend and respond to adverse information.[5]

    [5] UNHCR, Guidance note on the psychologically vulnerable applicant in the protection visa assessment process, UNHCR, Regional Representation in Canberra, November 2017

22. The Tribunal is satisfied that the applicant fully understood the nature of the questions and understood questions put to him and that he was therefore competent to give evidence. The Tribunal is also satisfied that he could respond to these questions, including adverse information, drawing on his knowledge and experience. The Tribunal is satisfied therefore that the applicant was competent to give evidence, taking into account:

    ·The applicant’s statement that he felt well on the day of the hearing and had not taken any medication the day of the hearing which impacted on his ability to give evidence.

    ·An absence of representations by the applicant or the authorised recipient that he was not competent.

    ·An absence of medical records indicating that he was not competent.

    ·The medical records from [Health Service 1] which report that on 6 May 2019 the applicant was last reviewed by a psychiatrist and was deemed to have no psychotic symptoms at that time. The records also state that on 27 May 2020 he was most recently seen by a mental health nurse for routine mental health screening and was not reported to have any symptoms and the mental health nurse did not deem that (the applicant) required any follow up other than routine screening and documented that he is ‘low risk’.

    ·The comments of the applicant’s partner at hearing that he had not suffered any psychotic episodes since she had known him (April 2020).

    ·No issue of competency arose in the December 2018 cancellation decision or the April 2020 cancellation decision.

    ·The fact that the applicant’s responses to questions indicated that he was directing his mind to the questions asked and drawing on experience to answer the questions.

    Findings of fact about the applicant’s past

23. The Tribunal must make findings of fact about the claims made, which involves an assessment of an applicant’s credibility. The Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[6] It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[7]  The benefit of the doubt should however only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility and where statements are coherent and plausible and do not run counter to generally known facts’.[8]

    [6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    [7] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

    [8] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204

24. Taking a reasonable approach to assessment of evidence in refugee cases is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

1. These decisions and commentaries are particularly pertinent in this matter, where the applicant left his home country 20 years ago in the middle of a civil war. The Tribunal is mindful of the difficulties faced by such refugee applicants, including issues related to the use of interpreters and nervousness and anxiety in a Tribunal environment. In this case there are certain to be issues resulting from the lapse of time, and cultural issues. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[9] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

   [9] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >

   The Tribunal has also taken into consideration the particular vulnerability of this applicant, considering the following factors:

   ·He has had a very traumatic childhood as a child soldier and separated from his family.

   ·He has been in immigration detention and prior to that, in prison.

   ·He has poor literacy.

   ·He has suffered from a number of mental health issues.

   ·He was unrepresented at the Tribunal hearing, although he was assisted by his partner, [named].

2. It is for an applicant to specify particulars of his claim and to provide sufficient evidence to establish the claim (s.5AAA of the Act). However the Tribunal is mindful of all the factors set out above and has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons[10] in assessment of his evidence and consequently has applied a particularly broad approach to assessment of his evidence.

   [10] AAT, Guideline on Vulnerable Persons, available on the AAT Website, >

   The applicant answered questions in a fairly fragmented manner at the Tribunal hearing, and at times appeared reluctant to provide detail. Given the traumatic nature of the subject matter, the Tribunal attempted to balance his psychological needs by eliciting sufficient evidence but being respectful of the fact that he may have found it difficult talking about these matters, including the death of his father and taking a person’s life at the age of [age].

3. The Tribunal is satisfied that the applicant had an extremely traumatic childhood. The Tribunal is satisfied that the applicant and his parents tried to escape from [City 1] in 1990 for Guinea, but that the applicant’s father was killed by rebels on the journey. In making this finding the Tribunal has taken into account the fact that the applicant’s mother along with the applicant and his [siblings] were granted [Refugee] visas in 2004 on the basis of these events, such that their protection needs were recognised at the time. Departmental notes refer to his mother’s claims then that her husband was tortured, beheaded and mutilated in front of her, that she was raped and witnessed the summary execution of [specified family members]. The applicant has said that his father was killed in front of him and he was hit with an AK47. The applicant would have been about [age] years old at the time. Country sources refer to a tumultuous time in the country in 1990, during which many civilians, particularly people of Krahn ethnicity were killed.[11] In December 1989, Charles Taylor launched a rebellion that led to prolonged civil war. More than 250,000 people were killed in the civil war and there was a breakdown in the rule of law at that time (between 1989 and 2003). According to Human Rights Watch over half the population was displaced. Charles Taylor’s party, the National Patriotic Front of Liberia (NPFL) committed widespread killing and torture of non-combatants, particularly Krahn and Mandingos. Roughly two thirds of Liberia’s 125,000 Krahn fled the country.[12]

   [11] BBC World News, Country Guide, Human Rights Watch, Liberia: A human rights disaster, 26 October 1990 align="left">[12] Human Rights Watch, Liberia: A human rights disaster, 26 October 1990 >

   The Tribunal also accepts the applicant’s mother’s evidence that her husband was of Krahn ethnicity and worked [for] [Leader A]. The applicant did not provide this information himself, but as his evidence about this time was confused, and understandably so, given the length of time that has passed, his age at the time, and the trauma involved, the Tribunal accepts his mother’s evidence about his father’s employment. Furthermore, President Samuel Doe was also an ethnic Krahn. Sources indicate that he carried out a military coup in 1980, executing President Tolbert and 13 aides.[13]  The Central Intelligence Agency (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.[14] The experiences of the applicant and his family are broadly consistent with this country information.

   [13] BBC World News, Country Guide, align="left">[14] Vinck, Kreutxzer et al, Talking Peace: A Population-Based Survey on Attitudes About Security, Dispute Resolution, and Post-Conflict Reconstruction in Liberia, June 2011, p.10

4. The Tribunal also accepts the applicant’s mother’s evidence that her husband was recognised by Charles Taylor’s rebels as a Krahn who worked for [Leader A] and was executed for this reason. As referred to above, the applicant’s family were granted visas to settle in Australia on the basis of their experiences in Liberia and they had been living in refugee camp in Guinea because of the civil war in Liberia. As discussed earlier, country sources indicate that 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 NPFL seeking revenge on ethnic groups the Doe regime had favoured.[15] Human Rights Watch reported that the Liberian Army committed gross violations of human rights including killings of civilians throughout the 10-year rule, and particularly in 1989/1990. Krahn soldiers’ widespread killing of Mano and Gio civilians in early 1990 set the stage for extraordinary reprisals by the NPFL against Krahn civilians.[16] Thus, if the applicant’s father was a Krahn who worked for [Leader A], it is very feasible that he would have been targeted.

   [15] Vinck, Kreutxzer et al, Talking Peace: A Population-Based Survey on Attitudes About Security, Dispute Resolution, and Post-Conflict Reconstruction in Liberia, June 2011, p.10

   [16] Human Rights Watch, Liberia: A Human Rights Disaster, 26 October 1990 >

   The Tribunal also accepts the applicant’s mother’s evidence that while the applicant’s father was executed, the rest of the family was saved because she pleaded with them on the basis that she was a Bassa, not a Krahn and that a rebel officer took pity on her. As set out earlier, Krahns were singled out for killings and ill-treatment. The Tribunal accepts the applicant’s mother’s evidence, as the applicant cannot remember, that while the rest of the family was at a funeral, this officer was killed and the applicant disappeared and they did not see him again for 10 years. The Tribunal accepts that the applicant’s mother and [number] children remained in a refugee camp in Guinea, and later she had [more] children in the camp.

5. The Tribunal has found it difficult to make findings on what happened to the applicant after he was separated from his family. He told the Tribunal that he was looked after by the girlfriend or wife of [a member] who cared for him like a son but also that he was trained to be a child soldier. He said that at the same time he was being trained from a very young age to hold weapons and fight and then took part in combat. It could be that he lived with her but was trained at the same time as he said that the [member] and his wife showed him how to use guns and do other jobs, and later he moved around with the rebels. It was difficult to ascertain exactly what happened because his evidence was vague. This may well be because of the trauma involved, his lack of education, as well as the length of time that has passed. The Tribunal has taken into account the UNHCR Guidance Note on the Psychologically Vulnerable Applicant[17] and specifically in relation to memory deficit. The Tribunal notes the advice of the UNHCR that the most common pattern in the recollection of trauma over time is that the central elements of the experience are relatively stable but contextual details vary, including precise times and dates, sequence of events, visual and spatial details and the number of people present and who did what.[18] The applicant has given consistent evidence since his application to the Department that he was taken by the rebels, and he also mentioned this to medical practitioners in 2018. At the Department hearing he said that he left because of the rebels, ‘I don’t really remember we just do what they tell us to do’. He later said that ‘I left Liberia because of what’s happening with the war, and what they were pushing me to do and I had a chance to escape’. He also referred to seeking counselling after he arrived in Australia, although there are no medical reports from this time. Clearly he has also spoken of his experiences of being a child soldier in at least one of his criminal cases. [A named judge] while sentencing the applicant [in] March 2018 stated ‘you have had a terribly disrupted life.. your personal experiences of the civil war in your native Liberia were horrific. Those of us who have never been exposed to such horror could never fully understand the extent of what you experienced’.[19] He has also referred to the trauma he suffered to this Tribunal, ‘since I’ve grown up as a child, I was abused by the rebels who have left me with the trauma that I am suffering today and that I have to cope with for the rest of my life’.

   [17] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017

   [18] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017

   [19] [Deleted.]

6. Furthermore, his experience accords with country sources which have reported on significant use of child soldiers at the time. The NPFL recruited child soldiers under 15 who were engaged in killing and abuse of civilians and this included the applicant’s hometown of [City 1].[20] These boys were recruited into ‘Small Boy Units’. Other warring factions also used child soldiers.[21] Many joined voluntarily as it was the only way of getting food, for revenge of killing of their parents, or because they needed protection.[22] Children played many roles in the conflict, ranging from carrying ammunition and cooking to serving on the front line. Some were used as spies, some as executioners, some as ‘canon fodder to draw fire of adversaries’. Younger boys aged nine and 10, were used on checkpoints. Most got no education and reported being trained to carry weapons, shoot, pull apart weapons, walk distances with a load, take cover, ambush and crawl, squat and jog.[23]  A not-for-profit organisation which worked to highlight the plight of child soldiers has said that 20% of combatants in the first phase of the war were child soldiers.[24]

   [20] Human Rights Watch, Liberia: A Human Rights Disaster, 26 October 1990 align="left">[21] Human Rights Watch, Easy Prey, Child Soldiers in Liberia, 8 September 1994, align="left">[22] Human Rights Watch, Easy Prey, Child Soldiers in Liberia, 8 September 1994, align="left">[23] Human Rights Watch, Easy Prey, Child Soldiers in Liberia, 8 September 1994, align="left">[24] Liberian Educational Achievement Foundation, in Integrated Regional Network (IRIN) – United Nations, Up to 15,000 Child Soldiers in Liberia, UN says’, 24 September 2003

While the applicant has not provided specific details of what took place when he was a child soldier, the Tribunal accepts on the basis of his consistent evidence in various forums about the matter and the country information referred to above, that he was a child soldier for the rebels in the civil war.

The evidence that he was living with [a member’s] wife or girlfriend was new evidence introduced to the Tribunal, which he had not told the Department. He also provided new evidence that while living with the [member’s] wife, he found out from her that the [member] had been the person responsible for killing his father and that the applicant took revenge on him and killed [him], then having to flee the country for Guinea. He said that the [member’s] wife helped him flee the country.

This evidence was different to his mother’s evidence. His mother said that she does not know where he was between [age range] years old. She said that, according to the applicant, the UNMIL looked after the applicant from when he was [age range] years old until he was reunited with her. It is difficult to ascertain if this is the truth or if this is what the applicant told his mother to appease her or for some other reason. He did tell the Tribunal at hearing that he tries not to tell his mother what happened. After the Tribunal hearing the Tribunal asked the applicant to provide information on this inconsistency, but no information was provided, which does cause the Tribunal to question its veracity. The applicant was specifically asked about his father’s death by the Department. When asked if he knew who killed his father, he said ‘not really’. He also said that ‘people are going to kill me that I don’t know’. Asked who these people were, he said ‘no idea’. The Tribunal notes also that the evidence provided about his time with the [member’s] wife and his description of the revenge taken were spoken of in fairly vague and broad terms. His previous evidence, along with his mother’s evidence does suggest that he fears returning to Liberia because of a fear of generalised harm, due to lack of security and a violent subculture. In light of this, the Tribunal has found it difficult to ascertain if this new evidence is true, given that it may have been provided to the Tribunal to bolster his claims, in that he now submits that there are specific individuals seeking him out in Liberia.

Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, s.423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence. The applicant has provided an explanation as to why he did not provide the evidence at the primary stage. He said that he has found it difficult to talk about these matters in the past and does not like to think about how he behaved at that time. While this does raise the issue as to why he finds himself able to discuss the matter with the Tribunal, when he was unable to do so at the Department level only a few months ago, the Tribunal has accepted this explanation, given that the subject of the new evidence is not only highly traumatic but also could be regarded as self-incriminating. The Tribunal has also given significant weight to his lack of legal representation and the vulnerabilities referred to earlier. Importantly, the Tribunal has considered the evidence in its entirety and not in isolated parts (Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997), and in this respect has taken into account the trauma involved. Psychological research on memory of trauma[25] indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. Further, the Tribunal notes that psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[26]

[25] Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just Tell Us What Happened to You: Autobiographical Memory and Seeking Asylum’, 2012 26 Applied Cognitive Psychology 661, Brewin, C, The Nature and Significance of Memory Disturbance in Posttraumatic Stress Disorder, (2011) 7 Annual Review of Clinical Psychology 203

[26] Cameron, H.E., Refugee Status Determinations and the Limits of Memory,2010, International Journal of Refugee Law 469

Given his vulnerabilities as discussed earlier which impacts on how he expresses himself and prepared his application for review, and the lack of legal representation, the Tribunal, taking the reasonable approach to fact-finding is prepared to accept that he did live with the [member’s] wife and later killed him as claimed.

Receiving country

The applicant has provided evidence about his place of birth and family history in Liberia which is corroborated by evidence from his mother. According to the Liberia Immigration Service, any person who has a Liberian parent, can be a citizen.[27] The Tribunal is satisfied on the basis of this evidence that Liberia is the receiving country for the purposes of the legislation as the applicant remains a citizen.

Does the applicant have a well-founded fear of persecution for reasons of imputed political opinion, Krahn ethnicity or as a member of a particular social group of returnees/former combatants?

[27] Liberia Immigration Service website, >

The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that 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; and

·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 above; and

·the real chance of persecution relates to all areas of a receiving country.

Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons.  This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention. The Tribunal is satisfied that the applicant has a genuine, subjective fear of returning to Liberia. This was a place where he had frightening experiences. He witnessed the death of his father, was separated from his family, was forced to be a child soldier and witnessed atrocities. He is also unfamiliar with the country since he left there in the year 2001 and has lived in Guinea and then Australia since then. When asked what he fears, his immediate response was to say that he had not lived there for 19 years. Liberia is unfamiliar to him and is associated with horrific memories.

1. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’ Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

2. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

3. The applicant has claimed that he fears serious harm on return to Liberia from former enemies of the rebels fighting under Charles Taylor, or persons who will know that he killed the [member]. In his most recent submission to the Tribunal he said ‘there are too many people that know me from being in the rebals [sic], due to living with the [member] and his wife. With this, due to being forced to do things I did not want to do, these people will be looking for me when they hear of my return.  If they were to find me, they will not hesitate in harming me in anyway possible.’ His mother also claimed that people who knew his father, as a Krahn and an employee of [Leader A], would want to harm the applicant.

4. The Tribunal is not satisfied that there is a real chance, in the sense of a substantial or non-remote chance[28] of serious harm were the applicant to return to Liberia in the reasonably foreseeable future.  The Tribunal is not satisfied that such harm would be perpetrated by former enemies of the rebels fighting under Charles Taylor, or persons who will know that he lived with or killed the [member], or persons who disliked his father as a Krahn who worked for [Leader A] (as claimed by his mother). The reasons for this are set out below.

   [28] Chan v MIEA (1989) 169 CLR 379

5. Firstly, Liberia is currently stable and peaceful, without evidence of significant ethnic conflict or conflict between those formerly engaged in conflict during the war. The history of the conflict is as follows. President Samuel Doe, an ethnic Krahn, carried out a military coup in 1980, executing President Tolbert and 13 aides.[29]  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.[30]  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 NPFL seeking revenge on ethnic groups the Doe regime had favoured.[31] The conflict killed more than 250,000 people, mainly civilians and led to a breakdown in the rule of law.

   [29] BBC News, Country Guide, align="left">[30] Vinck, Kreutxzer et al, Talking Peace: A Population-Based Survey on Attitudes About Security, Dispute Resolution, and Post-Conflict Reconstruction in Liberia, June 2011, p.10

   [31] Vinck, Kreutxzer et al, Talking Peace: A Population-Based Survey on Attitudes About Security, Dispute Resolution, and Post-Conflict Reconstruction in Liberia, June 2011, p.10

6. In June 2003 a Comprehensive Peace Agreement was signed ending the war.[32] 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. 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.[33]  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.[34] The Tribunal is not satisfied therefore that the applicant would be targeted for harm by former enemies of his father, former rebels or family members of the [member] given that his fear arises out of incidents during the civil war, which is now well over and the country is peaceful and stable, particularly as he was a child at the time of the civil war.

   [32] The World Factbook, CIA, align="left">[33] International Crimes Data Base, align="left">[34] Freedom House, Freedom in the World – Liberia, 2019, >

   Secondly, former combatants have been reintegrated into the community and numerous refugees have returned to the country. In 2003 a disarmament, demobilisation, rehabilitation and reintegration program for ex-combatants was established.[35] 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.[36]  The UNMIL turned over full security responsibility to Liberia in 2016[37] and withdrew from Liberia on 28 June 2018.[38]

   [35] UNMIL, Liberia, align="left">[36] UNHCR, align="left">[37] UNMIL, align="left">[38] UNMIL, >

   There have been some obstacles in the way of reconciliation and democracy. In 2017/2018, Amnesty International reported that many of the recommendations from the Truth and Reconciliation Commission were yet to be implemented.[39] 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 wars,[40]  however the evidence suggests few steps have been taken.[41] The Office of the High Commissioner for Refugees  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.[42]  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.[43] 

   [39] Amnesty International, Liberia, align="left">[40] Human Rights Watch, align="left">[41] Human Rights Watch, 3 October 2019,

   [42] OHCHR, align="left">[43] United States Department of State, Country Report on Human Rights Practices 2019, 2020, p.29

7. However, Liberia has experienced a peaceful transition in government following the 2017 election of George Weah. He promised to make ‘transforming the lives of all Liberians’ the ‘singular mission’ of his Presidency.[44]  

   [44] Aljazeera, Liberians Grow Wary of George Weah as Economic Woes Deepen, 29 January 2020, >

   The Tribunal notes that the applicant does not identify as Krahn. When asked he said that he was uncertain of his ethnicity although his mother was Bassa. Conflict in the past was tribally-based and there is no doubt that tensions still exist over land and other resources.[45] However, the country sources do not refer to people of Krahn or Bassa ethnicity or former rebels being systematically targeted by government forces or former enemies.[46] The former army and rebel armies were de-activated and demobilised after the civil war, with 100,000 soldiers disarmed. The current army was built from scratch, and was intended to unify both sides.[47] The police force and judiciary were reformed, and the UNMIL generally had positive results in disarming and preventing conflict between the warring groups after the war[48] and peace  has been maintained since, reflected in two democratic elections.[49] Further as mentioned, from 2012, the UNHCR has been assisting Liberians to return to Liberia.  UNHCR reports that between 2004 and 2011, 169,300 Liberian refugees returned and of these 138,600 were assisted by the UNHCR.[50]   The International Organisation for Migration has assisted over 7,500 Liberians to return to Liberia, including from the United Kingdom, Holland, Libya, Morocco and Senegal.[51]

   [45] United States Department of State, Country Report on Human Rights Practices 2019, 2020, align="left">[46] United States Department of State, Country Report on Human Rights Practices 2019, 2020, align="left">[47] Global Security, Armed Forces of Liberia, SBS, Liberia recruits new army, 22 August 2013, align="left">[48] align="left">[49] UN Peacebuilding, 2020, Libera peacebuilding and sustaining peace, align="left">[50] align="left">[51] Farrall, J, Recurring Dilemmas in a Recurring Conflict: Evaluating the UN Mission in Libera 2003-2006, Journal of International Peacekeeping 16 (2012) 306–342, Opande, D, How we Disarmed Liberian Fighters, Africa Renewal, April 2018 to July 2018, >

   The Tribunal notes that non-governmental organisations are active in Liberia, and have been involved in the return of refugees, and considers that if returning refugees including former combatants had been targeted, there would be reports of this occurring. No information was located about adverse treatment, harm, or targeting of returnees to Liberia in related or similar circumstances, included being imputed as supporters with other former soldiers in the Liberian civil war.[52] Reports such as Freedom House, which report on, inter alia, targeting of particular groups, do not refer to former combatants as facing difficulties.[53]

   [52] Sources consulted include the CISNET database; Google search engine; international human rights and humanitarian websites, and local news sources including All Africa

   [53] Freedom House, Freedom in the World 2020- Liberia, 2020

8. Thirdly, in regard to the killing of the [member], the Tribunal notes that the applicant lived in a refugee camp in Guinea for two years after the killing, such that if the family members of the [member] wished to seek retribution they could have done so at that time as the camp was just over the border. The refugee camps on the border were regarded as unsafe and precarious.[54] According to reports at the time, rebels came freely into the area, and were supported by the Guinean military.  An investigation by Human Rights Watch in Guinea in August 2002 found that Guinean military officials were often acting in close collaboration with the rebel group Liberians United for Reconciliation and Democracy (LURD), who were allowed to operate freely on Guinean territory and frequently transited through Guinean border towns.[55] Armed combatants were present in the camps.[56] Furthermore, the wife of the [member] was aware of the killing and helped him escape such that it is unlikely that she would seek retribution and may be able to protect him from retribution if he returned.

   [54] UNHCR, 7 August 2002, align="left">[55] Human Rights Watch, Liberian Refugees in Guinea: Refoulement, Militarization of Camps, and Other Protection Concerns, 25 November 2002, A1408, available at: align="left">[56] Human Rights Watch, Liberian Refugees in Guinea: Refoulement, Militarization of Camps, and Other Protection Concerns, 25 November 2002, A1408, available at: >

   Finally, this killing happened over 20 years ago when he was a child, which would reduce the chance of him being remembered, recognised or identified. When asked why he would be sought out so long after the event, he said that he had death threats over him, but he then confirmed that no threats had been made since he has lived in Australia. He also first said that he did not know who would want to kill him, but later said that there were a few hundred soldiers who would have known him, and that they would be notified through documents used to enter the country. The Tribunal notes that the armies were disarmed and new armies formed such that the current soldiers are unlikely to know him. He also referred to someone he had heard of who returned and then had a warrant out for his arrest. The Tribunal is not satisfied that the applicant would be arrested for events which took place when he was a child, particularly as he has not been involved in any political activity since then. While the Tribunal cannot state with absolute certainty that the applicant would not be located, the circumstances suggest that the chances are remote, particularly as he was not sought out while living in nearby Guinea where rebels moved in and out freely and given that he was a child at the time. Further, even if located, evidence referred to above does not suggest that former combatants in the civil war have been targeted for revenge, given that generally rule of law has been restored and disarmament and reintegration processes have been extensive in the country.[57]

   [57] UN Peacebuilding, 2020, Libera Peacebuilding and Sustaining Peace, >

   Taking all these matters into account cumulatively, the Tribunal is not satisfied that the applicant faces a real chance in the sense of a non-remote or substantial chance[58] of serious harm, for reasons of his imputed political opinion in favour of the rebels or because of his Krahn ethnicity or as a member of a particular social group of returnees or former combatants or for any other reason set out in the legislation.

   Does the applicant have a well-founded fear of persecution for reasons of membership of a particular social group of persons with mental health issues, or a similar group?

   [58] Chan v MIEA (1989) 169 CLR 379

9. In his submissions to this Tribunal the applicant said that ‘I strongly feel that Liberia does not have the support and medical care or assistance that I need for helping me with my mental state and my hand condition and I strongly feel that this will make my conditions worsen’. At the Tribunal hearing, he was asked to elaborate on this fear. He said that his lawyer had suggested that he say this, and it was not something he had claimed. [The applicant’s partner] his partner and authorised recipient interjected that he would not get the medical care in Liberia that he is able to get in Australia. The applicant then said that Liberia does not have the facilities he needs.

10. Presumably, in stating that his lawyers told him to ‘say this’, the applicant was referring to his lawyers in his cancellation matters as he was unrepresented before this Tribunal. In any event, given that he has made the claim of fear of lack of access to mental health services in his written documents and did express concern about health services at the hearing, the Tribunal has considered whether the applicant would face a real chance of persecution for reasons of membership of a particular social group of persons with mental health issues, or health issues, or similar groups.

    What are the applicant’s health issues?

11. In determining what the health issues are, the Tribunal has reviewed the medical reports including those referred to in the December 2018 cancellation decision and the April 2020 cancellation decision. The Tribunal has also taken into consideration the most recent medical reports from [Health Service 1], the medical services provider for people in immigration detention, and evidence of the applicant, his partner and mother. After the Tribunal hearing, the Tribunal invited the applicant to provide further medical information or reports but nothing further was provided as at the date of this decision.

    Medical issues referred to in the December 2018 cancellation decision

12. The Tribunal (differently constituted), in the cancellation matter in 2018 considered whether there was ‘another reason’ why the mandatory cancellation of the visa should be revoked. The Tribunal found that there was ‘nothing before the Tribunal from a medical or other independent expert providing any diagnosis of the factors giving rise to the applicant’s propensity to offend’. In other words, in that matter, evidence of mental illness or issues was not provided to explain the applicant’s offending behaviour, although alcohol was discussed as a factor.

13. The Tribunal (differently constituted) took into account a psychiatrist’s diagnosis of chronic schizophrenia that was ‘apparently affecting the applicant in July 2017’, while the applicant was in immigration detention. The psychiatrist noted that the applicant told him, ‘I.. use no drugs in this country until they sent me to jail and I met some bad people who told me that [Drug 1] is a good drug to have. I had some in November last year and ended up going to the mental ward because it disturbed me.’

    Medical issues referred to in the April 2020 cancellation decision

14. The Tribunal in the April 2020 cancellation decision considered the following materials amongst other evidence:

    ·A 150-page bundle of medical records from [Health Service 1].

    ·[Health Service 1] record titled ‘Mental Health Assessment’.

    ·[Health Service 1] Health Summary Report dated [in] November 2019 for the Commonwealth Ombudsman.

    ·A report by consultant psychiatrist [named] dated 13 July 2017.

    ·Sentencing remarks from [Court 1] 2018 and transcript of proceedings from [Court 2] dated 2013 and 2017.

15. The Tribunal (differently constituted) made a number of comments about the reasons for the applicant’s criminal offending. The Tribunal said that the applicant ‘contextualised his offending as linked to trauma experienced prior to his arrival in Australia and persistent alcohol abuse.’

16. The Tribunal (differently constituted) noted that when asked about the reasons of his offending, he said that ‘the number one thing was that I was not having the proper medical treatment.. I had my hand injury and I couldn’t do the work I did before’. It was reported in the decision that the applicant said that in October 2009 he lost the full use of his [hand] after having a metal plate inserted after a work injury. He said that he had not worked since 2009 after suffering an injury, for which he received compensation. A doctor told him his hand would improve and he could work, but he felt unable to do so, saying he only had 75% to 85% use of his hand. The Tribunal (differently constituted) raised with the applicant the fact that he did not raise this as an issue in immigration processing in 2017 and referred him to information that he had been playing the drums and engaging in other activities such as [specified sports] in immigration detention as well as evidence that he worked on farms. The applicant responded that he had given up drums and [one sport] and his sister did not know what was happening with his hand. There was no independent medical evidence before that Tribunal about his hand. The Tribunal, differently constituted, found his evidence about his injury to his hand to be ‘unpersuasive at best’.

1. The Tribunal is not satisfied therefore that there is a real chance of serious harm on the basis of lack of availability of treatment or because of stigma or ill-treatment of persons with disabilities.

2. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group of persons with mental illness, or a similar group.

   Does the applicant face a real chance of persecution for reasons of membership of a particular social group of returnees, due to being unable to subsist or because of crime?

3. The Tribunal has considered whether the applicant has a well-founded fear of persecution on the basis of being unable to subsist or being a victim of crime for reasons of membership or a particular social group of returnees, or similar groups.

4. As set out earlier in this decision, searches of country sources do not reveal information suggesting that returnees are targeted for harm, including lack of access to jobs or services, because they are returnees from other countries or perceived as foreigners.[82]

   [82] Sources consulted during the research for this question include the CISNET database; Google search engine; international human rights and humanitarian websites, and local news sources including All Africa

5. Liberia experiences high levels of poverty and there are limited employment opportunities. The CIA’s World Factbook describes Liberia as ‘a low-income country that relies heavily on foreign assistance and remittances from the diaspora’.[83] A 2020 World Food Programme (WFP) country profile reports that poverty is high across Liberia.[84] A 2016 Front Page Africa article, citing a World Bank report, says that 54% of the population live below the poverty line – classified as living on less than two US dollars a day.[85] The country’s actual unemployment rate is unclear and may be misleading. A 2019 report says that it is estimated at 3.9%, but that the percentage of Liberians in informal employment is up to 73.9% while the ‘vulnerable’ employment rate is 79.5% – highlighting the fragility and instability of the labour market. According to the report, ‘many Liberians (22.4 percent) earn between L$6, 000 (US$30.58) and L$15,000 (US$76.44) monthly, while only 13.5 percent earn over L$30,000 (US$152.88)’.[86] Liberia has been impacted by two civil wars, an Ebola outbreak in 2014, recurring floods and other disasters and remains one of the most impoverished countries in the world.[87]

   [83] CIA, Factbook, Liberia, accessed 2020

   [84] WFP, Liberia, 2020, align="left">[85] Front Page Africa, Liberia Poverty Rate Stands at 54 Percent – World Bank Report, 19 October 2016

   [86] Africa Housing Finance Yearbook 2019, Liberia, 2019, p.170

   [87] CEIC data, Liberia Forecast, Real GDP growth, 2001–2021 Forecast, Business Insider, Ranked – the 28 Poorest Countries in the World – Where People Live on $1000 per Year, 1 June 2018

Limited specific relevant information was found about the availability of housing for individuals returning to Liberia. Although there is reference to a number of social housing projects,[88] according to a December 2017 report in the Daily Observer, a local newspaper, 70% of Monrovia’s population lives in slums with poorly constructed housing, severe overcrowding and a lack of basic social services.[89] A 2018 journal article says that:

This passive behavior toward social housing has led to the proliferation of sprawl and slums in most of the country leaving most citizens to live in unhealthy, unstructured, unsecured and inaccessible communities.[90]

[88] Journal of Building Construction and Planning Research, Residents Post-Occupancy Evaluation of Social Housing in Liberia, 2018, align="left">[89] Journal of Building Construction and Planning Research, Residents Post-Occupancy Evaluation of Social Housing in Liberia, 2018, align="left">[90] Journal of Building Construction and Planning Research, Residents Post-Occupancy Evaluation of Social Housing in Liberia, 2018, >

The April 2020 Bertelsmann Stiftung report notes that a national social security corporation created in 1975 is intended to provide a basic social security net for employees in the formal sector. It is one of a number of public and private insurance options which in theory provide limited social security to eligible Liberians. However, the report characterises these schemes as deficient, with some affected by corruption. The majority of the population must rely on private channels such as patronage and the support of relatives in the case of hardship. Under conditions of extreme poverty, mechanisms of mutual support are often ineffective. Health care and related aspects like sanitation and access to safe drinking water are prioritised in the budget but service delivery remains very poor.[91]

[91] Bertelsmann Stiftung, BTI 2020 Country Report Liberia, April 2020, >

According to an article in Al Jazeera this year, recent protests have been held in Monrovia about the deepening economic crisis in Liberia.[92] A report on 21 December 2019 by the BBC News stated that there were workers not being paid and shops shutting.[93] Media articles have reported that younger and poor voters have claimed that their economic woes have worsened in the last few years, with critics blaming government incompetence and failure to tackle corruption.[94] Crime is at a critical level owing to discontent with the faltering economy.[95] There was also an increase in political protests during 2019, with some violence and civil disorder. Some protests were in response to dissatisfaction with low wages and/or lack of salary payment, the need for economic reforms, educational fees, fuel and transportation costs, access to health care, poor living and working conditions and lack of electricity.[96]

[92] Al Jazeera, Liberians Protest Worsening Economic Situation, 7 January 2020,   align="left">[93] BBC News,

[94] Al Jazeera, Liberians Grow Wary of George Weah as Economic Woes Deepen, 29 January 2020, align="left">[95] OSAC, Liberia 2020 Crime and Safety Report, 17 April 2020

[96] OSAC, Liberia 2020 Crime and Safety Report, 17 April 2020

As discussed with the applicant at hearing although economic conditions in Liberia are dire, as referred to above, and crime is rife, this impacts on all citizens and does not amount to a real chance of serious harm for one of the reasons set out in the legislation. While it will be extremely difficult for the applicant to return to Liberia, given absence of family support in the country, lack of familiarity and low literacy skills, the Tribunal is not satisfied that he would face serious harm in the form of being unable to subsist, due to being a returnee specifically or for any of the other reasons set out in the legislation. Country sources do not suggest that returnees are denied jobs or services because they have returned to Liberia from other countries.[97] Financial hardship is evident for all segments of the population and there is no information before the Tribunal that he would be treated adversely and denied access to services or jobs, compared to other Liberians because of his race, religion, nationality, membership of a particular social group or political opinion. Furthermore, Liberian returnees are eligible for International Organization for Migration (IOM) assistance through the provision of assisted voluntary repatriation and reintegration packages and additional support through the Liberian Refugee Repatriation and Resettlement Commission[98] and the applicant does have family and a partner in Australia who may be able to assist. He also has cultural familiarity and is able to speak the language.

[97] Sources consulted during the research for this question include the CISNET database; Google search engine; international human rights and humanitarian websites and local news sources including All Africa

[98] ‘Resettlement and Reintegration Assistance’, official IOM website for Liberia, >

The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of membership of a particular social group of returnees, or a similar group.

Does the applicant have a well-founded fear of persecution because of separation from family in Australia or the possibility he would harm himself?

The applicant and his partner have suggested that the applicant will be harmed because he will be separated from his family in Australia. His partner also suggested that there is a risk of self-harm. These kinds of harm would not amount to persecution, which must be systematic and discriminatory and nor would the harm be for reasons set out in the legislation, race, religion, nationality, membership of a particular social group or political opinion.

The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of separation from family, or because he may harm himself.

Cumulative factors

The Tribunal has considered whether the applicant has a well-founded fear of persecution for race, imputed political opinion or membership of a particular social group of returnees, people with mental health issues or similar groups, considering cumulatively his mental health and past and current circumstances.  The Tribunal is not satisfied the combination of any of the factors raised would result in a real chance of serious harm to him in the reasonably foreseeable future for any of the reasons in the legislation for all the reasons referred to earlier.

Conclusion on refugee criteria

For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or 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).

Complementary protection

If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (‘the complementary protection criterion’).

‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

The Tribunal has not accepted, for reasons set out earlier, that there is a real chance of serious harm from former enemies of the rebels fighting under Charles Taylor, or persons who will know that he lived with or killed the [member], or persons who disliked his father as a Krahn who worked for [Leader A] (as claimed by his mother). For the same reasons as set out earlier in relation to ‘real chance’, and on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm from these parties if the applicant were to be removed from Australia to Liberia.

The Tribunal has also found that there is not a real chance of serious harm due to lack of access to mental health services.  The Tribunal has found that the applicant has not availed himself of regular mental health services in Australia where they are readily available and he is unlikely therefore to avail himself of them in Liberia. Furthermore the medical evidence indicates that the applicant is in remission even without regular medication, but if he were to seek out medication, he should be able to access it with help of his family or partner in Australia. Reasons for these findings are set out earlier in the decision. The Tribunal is also not satisfied that there is a real risk of significant harm due to lack of availability of services for the same reasons as set out earlier in relation to ‘real chance’. Furthermore, on the basis of country sources referred to earlier, the Tribunal is not satisfied that the government would intentionally withhold services or medication from the applicant, and any difficulties with availability are due to funding only. The Tribunal is not satisfied therefore that there is a real risk of arbitrary deprivation of life (which requires some deliberate act, rather than the consequences of scarce medical resources, MZAAJ v MIBP [2015] FCCA (Judge Riley, 4 February 2015), or of cruel or inhuman treatment or punishment; or of degrading treatment or punishment, which require intention on behalf of the government, or of the other kinds of significant harm.

The Tribunal has also found on the basis of medical reports that the applicant is not suffering from the kind of illness, even when he is not taking medication, which will result in him being ostracised and discriminated against, to the level of ‘serious harm’.  For the same reasons the Tribunal is not satisfied that the applicant faces a real risk of any of the kinds of significant harm because of ostracism or discrimination because of his mental health issues. The Tribunal is not satisfied that any stigma he may suffer would reach the level of ‘significant harm’, as that is set out in the legislation.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. Although economic conditions are dire in the country, and there is high crime, this is a risk faced by the population generally and not by the applicant personally. Further according to the 2018 cancellation decision, although large periods of his life have been involved in criminal pursuits, he has had some work experience which could be of benefit in seeking a job, as [an occupation 1] in 2009, [and in other roles in specified years]. He also has family and a partner in Australia who could provide him with some support and he could seek help from migration and repatriation agencies.

The applicant and his partner referred to fear of being separated from family if he were removed from Australia. The applicant’s partner also mentioned in post-hearing submissions that she fears that the applicant may suicide if he is returned to Liberia. The Tribunal notes that there is no mention of suicidal tendencies in any of the medical reports and is not satisfied therefore that he has displayed suicidal tendencies until this point. In GLD v MHA [2020] FCAFC 2, the Full Federal Court confirmed existing authority in SZRSN v MIAC [2013] FCA 751 that any claim of harm arising from family separation resulting purely from an applicant’s removal from Australia will not satisfy s.36(2)(aa). It also confirmed the principles in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 that ‘significant harm’ does not include self-harm or harm the applicant suffers arising from mental illness. The Tribunal is not satisfied therefore, as this predicted harm arises from removal that there is a real risk of significant harm arising from family separation or future self-harm.

Conclusions in relation to complementary protection criteria

For the reasons set out 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 Liberia, there is a real risk of significant harm.

CONCLUDING PARAGRAPHS

This is a difficult matter in which the applicant’s mother and [siblings] live in Australia. He also has a new partner and [number] children living in Australia. He had a traumatic childhood in Liberia as a child soldier when he was separated from his family and has not lived in Liberia since 2001. However, these factors are only relevant in this matter insofar as they are pertinent to questions of whether he meets the criteria for a visa. They are factors which have been canvassed extensively in the 2018 and 2020 cancellation decisions. This Tribunal must only determine whether the applicant meets the refugee criteria or the complementary protection criteria.

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

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

DECISION

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

Jane Marquard

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.

…