2011033 (Refugee)
[2020] AATA 6125
2011033 (Refugee) [2020] AATA 6125 (23 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2011033
COUNTRY OF REFERENCE: Liberia
MEMBER:Nora Lamont
DATE:23 October 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 23 October 2020 at 11:42 am
CATCHWORDS
REFUGEE – protection visa – Liberia – religion – family’s history of converting to Christianity – going against voodoo practiced by the applicant’s extended family – particular social group – Americo-Liberian – applicant’s surname – language difficulties – creole or pidgin English – tribal tensions – poverty and employment issues – speech impediment – access to mental health services – returnee from the west – Economic Community of West African States (ECOWAS) – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 501
Migration Regulations 1994, Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Liberia, applied for the visa on 12 October 2018.
The applicant appeared via video link from [a named] Detention Centre on 9 October 2020 at 10:30 am to give evidence and present arguments. The original hearing date was scheduled for 18 September 2020, but the representative asked for a three week extension as the applicant wished him to be at the hearing.
The applicant was represented by his lawyer and his father appeared as a witness.
The Tribunal has attached a record of submissions given to the Tribunal and the Tribunal has considered each of these submissions.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is [an age]-year-old male born in Liberia in [year]. From 2004-2012 he lived in [Country 1]. He has been in Australia since 2012 and is currently being detained at [a named Detention Centre].
The applicant was granted a [Partner] Visa on 23 March 2012. On 20 June 2018 the applicant’s visa was cancelled under s501(3A) of the Migration Act.
The applicant provided two Liberian passports to the delegate and the delegate had no issues with the applicant’s citizenship or identity. Therefore, the Tribunal has assessed the applicant’s claims against Liberia as his country of nationality and receiving country.
The applicant’s claims can be summarised as follows and as discussed at his Tribunal hearing on 9 October 2020.
- Religion: The applicant’s grandmother and father converted to Christianity from Voodoo and this upset the extended family. The extended family was unhappy with this decision and came after the applicant’s grandmother and father killing his uncles and putting voodoo spells on family members. The applicants [grand Uncles] are voodoo priests and witch doctors. The applicant’s [grand Aunts] are also voodoo priestesses and voodoo witch doctors. The applicant’s two Uncles [Relative A] and [Relative B] were killed by his grand Uncles. The applicant will be identified as a member of the family and targeted should he return to Liberia. The applicant will be kidnapped, raped, tortured used in traditional practices and sacrificed to a pagan deity.
- The applicant has an Americo-Liberian surname and he will be identified by that surname.
- The applicant will not be able to relocate within Liberia due to tribal issues.
- The applicant will not be able to subsist or find employment.
- The applicant cannot speak creole or pidgin English.
- The applicant will suffer harm due to his speech impediment and mental health issues.
- The applicant benefits from UN instruments including the Refugee Convention, the Convention against Torture and Other Cruel, and Degrading Treatment or punishment 1984. International Covenant on Civil and Political Rights 1966. Universal Declaration of Human Rights 1948, Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of the Child 1989.
Below is a summarised table of events for the applicant’s claims and extended family.
Timeline of Events – 2011033 – [Applicant’s name]
Date Event Details 1995 The applicant’s family converted to Christianity. [1996] The applicant’s family officially baptised as Christians 1979 Applicant’s [Relative A], is allegedly murdered by [the applicant’s great-uncle] 1979-1997 Applicant’s family continued to be harmed and threatened to return to voodoo beliefs by other members of the family.
Liberian National Police view interfamily religious disputes as a family matter.
1997 [The applicant’s] life is threatened by abovenamed relatives by using a voodoo method that intends to kill people that have converted from voodoo to another religion November 1997 Applicant’s family moved to [Region 1] (an isolated part of Monrovia which is difficult to access) following the threats against his grandmother. [A date in] 2003 The applicant’s [Relative B], is allegedly murdered by [a grand-uncle] and his children by invading the applicant’s family house in [Region 1] – cutting out his genitals and intestines and shooting him. [Specified dates in] 2003 Travelled to [Country 1] via [another country] [During specified dates above] [The applicant’s father] returned to Liberia to find out what had happened to [Relative B] and [Relative C] [A later date in] 2003 [The named grand-uncle] told [the applicant’s father] that he was responsible for the deaths of his relatives [Relative B] and [Relative C], and showed him the genitals and intestines of [Relative B]. [Later in] 2003 [The applicant’s father] left for [Country 1] and did not return to Liberia after that. [A date in] 2003-[Early] 2004 Travelled to [a named] Refugee Camp, [in Country 1] via [specified countries] [February] 2004 Travelled to [Country 1] via [specified countries] September 2006 [The applicant’s father] left for [Country 2] [September] 2003 [The applicant’s father] is sponsored by his fiancée [named] to travel to Australia on a Partner visa, and he arrived in Australia. 01/03/2010 Lodged Combined Partner visa application as a [dependent] (offshore) 13/01/2011 Lodged Dependent Child [visa application] (offshore) 03/06/2011 Applicant granted Dependent Child [visa] [January] 2012 Applicant departed [Country 1] [A few days later] Arrived in Sydney, Australia, and immigration cleared 20/02/2012 Applicant asked [Friend D] to report his [relatives’] deaths and obtain death certificates in Liberia. [Early March] 2012 [Friend D] attended the local court and filled out a form and an affidavit regarding the murder of [Relative B]and [Relative C]. [Days later] [Friend D] took the affidavit to the Ministry of Health and Social Welfare where he was interviewed and thereafter paid the cost of the death certificates. He picked up the death certificates the following day, [in] March 2012. 23/03/2012 Applicant granted permanent [Partner visa] as a dependent [June] 2017 Convicted of Reckless Wounding in [Court 1], sentenced to a 20-month control order suspended on a good behaviour bond [March] 2018 Admitted to [a named] Correctional Centre [June] 2018 Convicted of Assault law officer (not police officer) at [Court 2] and sentenced to three months imprisonment [Later in June] 2018 Partner visa cancelled under s501 of the Act 12/08/2018 Lodged Protection visa application (subclass XA-866) 16/01/2019 Interviewing Officer requested further information and details of the applicant’s claims of being unable to return to Liberia because he suffers a speech impediment [December] 2019 Released from criminal custody; detained and transferred to [a named Detention Centre] 21/01/2020 Interviewing Officer requested a current report from a Forensic Psychiatrist 20/04/2020 Migration agent provided an updated report by [Dr E] 05/05/2020 S57 Natural Justice letter sent to migration agent inviting comment on adverse information contained in [the applicant’s] protection visa file and in records of financial transactions available to the Department Tribunal Hearing
At the Tribunal hearing the applicant spoke about arriving in 2012 and attending various schools including a behavioural school where he completed year [level]. The applicant was doing [an] apprenticeship when he was incarcerated and was about to go to TAFE. He said he would like to either complete his apprenticeship or do [Occupation 1]. The applicant spoke of being a Christian and attending [a named] Church. When asked about his family’s background he stated he was told about when the family converted to Christianity and he used to see his grandmother praying.
The applicant said that as his extended family was traditional, they would seek revenge on him and because they would know who he was based on his [surname]. The Tribunal asked if he thought time would have changed all the family issues and the applicant responded that these things go from one generation to another. The Tribunal asked the applicant about his mothers’ side of the family and where they were located, and the applicant did not know.
The Tribunal asked him why his surname was a problem. He said that he was Americo-Liberian and [his surname] was an Americo-Liberian name and that was a problem for the general public and his grandmother’s family. The Tribunal read country information that indicates that Americo Liberians are not discriminated against. ‘Historically Americo-Liberians held positions of power and wealth in Liberia. This ended in 1980. Because of intermarriage and an aggressive national unification program, tribal divisions are rapidly becoming less distinct especially around the capitol. No evidence of Americo-Liberians being discriminated against is found in country information’. [1]
[1] Liberia-Ethnic groups. Encyclopedia of
The applicant spoke about tribes and why that was an issue. The applicant said that if you are not from a person’s tribe and you can’t speak the language that would be a problem. When asked why he couldn’t go to Monrovia as it was the capitol. He said it was his name if it was mentioned his relatives would find them. The applicant was asked if he spoke pidgin English and Creole when he was a child to which he said he did.
When asked what the applicant’s biggest fear was that he didn’t want to die so young and suffer a fate such as his relatives.
The Tribunal took evidence from the applicant’s father via telephone. He said that his relatives have threatened their lives since they became Christians and they know his son is a member of his mothers’ family. They are ready to take lives, 2 of his brothers and uncle so surely, they will take his son’s life. The applicant’s father also said all his children were here, his [siblings] were not in Liberia they won’t return due to the threat from the family.
When asked if he had intel on whether his extended family was alive or what they were doing, the applicant’s father said he has a friend who tells him everything that is going on. The Tribunal questioned the applicant’s father about his mother (the applicant’s grandmother) and he said her visa status was that she was before the Minister. The Tribunal notes that the applicant’s grandmother has had her protection visa refused and affirmed at the AAT and is currently seeking Ministerial Intervention. After the hearing the applicant’s representative provided the Tribunal with a letter in regards to his grandmothers mental health status. The letter written by the representative outlined that the applicant’s grandmother has been in a psychiatric hospital before and that her mental health status is frail. If her grandson is returned to Liberia, she may have a breakdown.
The applicant’s father said he was afraid for his son’s life and he was doing all he could so he could have a life. He said he has a real fear that his life would be taken away and he cannot protect him if he was in Liberia.
The applicant told the Tribunal that he had leant a lot about himself and he has made many changes as he used to be an angry person. Now he wants a normal life. He stated he was grateful for his family and their support.
The applicant’s representative clarified some information about the type of Christianity that the applicant practiced and told the Tribunal the applicant had lost touch with his mother, so it was clear she was not interested in having a relationship with him. The Representative stated that if the applicant arrived in Monrovia -a young guy with a stutter and surname of [the applicant’s surname] he would be killed. If he was sent back to Liberia, he would be sacrificed that was certain.
The applicant’s representative spoke to the applicant’s mental health status and that he has sought counselling at [the detention centre] and wanted to get counselling from [a named agency] and that he has seen a private psychologist sometime in 2012 or 2013. He also stated that [Agency 1] was coming to [the town] where his father lived and the applicant could get help there, and that the applicant had completed anger management whilst in detention.
Finally, the applicant’s representative said that he was sure that the applicant can contribute to Australis if he is given a chance.
Findings
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Liberia, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Religion and Voodoo
The applicant fears that his family’s history with relation to his religion as a Christian and his family’s history of converting to Christianity and going against voodoo practiced by the applicant’s extended family. The applicant has not been in Liberia for 17 years as he left when he was [age] years old and resided outside of Liberia until 2012 when he arrived in Australia.
The applicant’s claims are based on his grandmothers claims for protection that her relatives turned on her when she refused to participate in voodoo and rituals. In 1996 she converted to Christianity along with her son the applicant’s father. The applicant claims that two of his grand Uncles were murdered by his grandmother’s family. Copies of the death certificates were provided to the Tribunal. In his written submission the applicant’s representative stated that the applicant’s [Relative A] was killed by a snake, dragon or lizard sent via voodoo. Further, the applicant’s [Relative D] became sick but was cured after Christian indoctrination. This all led up to the grandmother and father to becoming converts to Christianity.
The applicant was born in [year] after the family has converted to Christianity so the Tribunal considers that the applicant has not converted to Christianity as he was born into Christianity. Country information indicates that ‘the constitution provides for the separation of religion and state and stipulates all persons are entitled to freedom of thought, conscience, and religion -it provides for equal protection under the law and prohibits political parties that exclude citizens from membership based on religious affiliation’. [2]
[2] >
Country information indicates that while the country is predominately Christian many people continue to practice voodoo as well as Christianity. In 2015 the then President of Liberia Ellen Johnson Sirleaf announced a crackdown on voodoo and ritualistic deaths that had been occurring across Liberia. [3] Whilst there is evidence that ritualistic killings do occur, they are primarily aimed at people assuming power or the need for power and there is no country information that ritual killings occur within families who are exacting revenge for a conversion to Christianity.
[3] >
The Tribunal accepts that some Liberians practice witchcraft and voodoo and that there is a mix of religion and this includes Christianity and voodoo. The applicant’s claims that his grand Uncles were killed by the extended family due to their conversion to Christianity are not seen through evidence. The Tribunal does not accept that the applicant’s extended family attacked and killed [Relative B] and [Relative C]. Their death certificates indicate that they died from bullet wounds. The applicant’s representative claims they had body parts missing and that the police do not report that on the death certificates. However, the Tribunal was able to access new articles on ritualistic killings and considers that it is widely reported when it happens. The deaths also occurred towards the end of the civil war which ended in August of 2003. Violence was rampant during the war.
The Representative provided two news articles one “Fear Gripes Woman over death threat” from 17 October 2012 and “Woman Narrowly Escapes Death for Refusing to Accept Ritualistic Traditional Practice (no date provided) however the Tribunal was unable to find these articles anywhere on the internet. The Tribunal was unable to find any news articles on these two deaths. Further, the Tribunal has considered whether the applicant’s grandmother’s children were stricken with a curse from the relatives and finds that this is not supported by any evidence.
The applicant’s representative provided a nine-page declaration from [Mr F] who is the son of [a former official in] Liberia who was [assassinated]. It outlines ritualistic killings and how difficult they are to eradicate from the country. Further, the Tribunal received letters from [Ms G] in Liberia and a Reverend form [Church 1 in] Liberia.
The Representative in his submission to the Tribunal states that the family fled to [Region 1] in 1997 for their own protection. [Region 1] is an isolated area of the capital Monrovia and is difficult to access. The family stayed there until 2003 when the family was found out by the relatives and they fled from there. [4] However, the Tribunal considers that [Region 1] is a part of the capital and is not remote. [Region 1] contains [infrastructure of national significance] of Liberia, government buildings and residential areas. [The area] is in no way a remote area or difficult to access. [5]
[4] Representatives submission to the Tribunal page 9
[5] [Source deleted.]
The Tribunal considers that these claims are not supported by the evidence as there are no reports of societal abuses or discrimination based on a person’s religion or religious conversion. If converting to Christianity meant people were being persecuted this would be reported in country information.
The Tribunal finds that even if there were family tensions over the issue of Christianity and voodoo this does not mean the applicant will face a real risk of serious harm in the reasonably foreseeable future upon return to Liberia. The applicant has not been in Liberia since he was [age] years old and there is no information before the Tribunal that indicates that the applicant would be targeted for his religion by his extended family after such a long period of time.
Americo-Liberian
The applicant claims fear of harm based on his surname [name] as it is unusual and will make him stand out, his relatives will be able to find him, and he will be targeted for being Americo-Liberian. The Tribunal was unable to find any information that the applicant’s surname would cause him problems or that being Americo-Liberian suffer from discrimination or are harmed in anyway.
In a search of common surnames for Liberians the Tribunal found that the [applicant’s surname] was [high] on the list of most common surnames. There were [number] incidences of [this surname] found. [6] According to ‘From Mississippi to Liberia by the Jackson Free Press ‘some native Liberians have adopted American names over the years.’ Many people have adopted these American surnames and there is no country information that shows a certain surname means a person would be targeted. Nor does the Tribunal have any evidence that indicates the applicant will be targeted by his extended relatives after 17 years based on his surname.
[6] [Source deleted.]
The Tribunal does not accept that the applicant will be persecuted on return to Liberia for his membership as an Americo-Liberian or for his [surname]. Country information does not back up the applicant’s claims that he will be harmed due to his name and background. The Tribunal was unable to locate country information that showed lingering animosity against Americo-Liberians since the end of the civil war in 2003.
Language difficulties
The applicant claims he will have a language barrier if he is to return to Liberia. The applicant speaks English and does not speak creole or pidgin English and he will stand out in his home area. The Tribunal asked the applicant if he spoke pidgin English or creole when he was a child to which he said he did. The applicant also lived in [Country 1] from 2004 until 2012 where he would have spoken pidgin English or creole. The Tribunal notes that the official language of Liberia is English. Whilst many people speak there native or tribal languages the applicant has the required English language skills.
Country information indicates that English is used in all public and mission schools and in Universities in Liberia.[7] The Tribunal does not accept that the applicant will have a language issue upon return to Liberia.
Tribal issues
[7] Usahello.org
The applicant claims that he cannot return to Liberia as he cannot move or relocate outside his home area due to tribal tensions and he will not be welcome in any area outside his home area. The war in Liberia ended over 17 years ago and whilst some tensions may remain Liberia has changed significantly and the UN in 2012 (the same year the applicant arrived in Australia) recognised the cessation of Refugee status. Over the years since the war ended hundreds of thousands of Liberians have returned to their country and continue to live there.
The applicant’s father in his evidence told the Tribunal he still talks to people in Liberia who keep him posted on what is happening and the Tribunal considers that these friends and associates would be able to assist the applicant get settled when he returns to Liberia.
Country information for Liberia related to Americo-Liberians and tribal divisions shows: ‘Historically Americo-Liberians held positions of power and wealth in Liberia. This ended in 1980 and because of intermarriage and an aggressive national unification program, tribal divisions are rapidly becoming less distinct especially around the capitol. No evidence of Americo-Liberian being discriminated against is found in the country information’. [8]
Poverty and employment issues
[8] Liberia-Ethnic groups, encyclopedia of the Names 01 January 2019
The applicant claims he will not be able to get employment and subsist upon return to Liberia.
Current country information indicates that Liberia is a poverty-stricken country. ‘The main societal problem in Liberia is longstanding and widespread poverty, with two-thirds of the children who should be in school not in school, the world's worst record according to UNICEF, world authority on children (UNICEF Annual Report, 2017). Additionally, Liberia is the second poorest country in Africa and the fourth poorest country in the world (ADB/WB/IMF Annual Reports). The unbearably high and rising foreign exchange rate between the Liberian dollar and the United States dollar became the pretext for the massive outdoor protest of June 7, 2019’. [9]
[9] >
The Tribunal accepts that Liberia has high unemployment and poverty, but this is for all residents and everyone that lives in the country. The applicant has lived on his own in a rented unit since he was [age] and prior to his incarceration. The applicant has held several jobs and was doing an apprenticeship at the time when he was gaoled. The applicant has shown he is capable of living on his own and finding employment when he needs to as he has done since leaving school. The applicant can access some of the re-integration programs offered and his father has contacts in Liberia who should be able to assist the applicant upon return to Liberia.
There are some circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in their home 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 severe in Liberia, and there is high crime, this is a risk faced by the population generally and not by the applicant personally.
Mental Health and Speech Impediment
The applicant saw a psychiatrist [Dr H] in June of 2013. The psychiatrist found that the applicant had a speech impediment, adjustment disorder with depressed mood. The applicant also saw [Dr E] on 6 March 2020 who also stated the applicant has an adjustment disorder with depressed mood.
The Tribunal accepts that the applicant has a speech impediment and that he has an adjustment disorder and has a depressed mood. The applicant has been in custody for a few years now and has had issues related to his visa cancellation and ongoing immigration matters. The Tribunal asked the applicant if he was receiving psychological support at the present time to which he said he had not. His representative was attempting to get him some help from an organisation that assists with survivors of torture and trauma, he also said that [Agency 1] was available in [the town] where his father lives and he would be able to access the help he needs there.
The applicant has not accessed available psychological assistance except for the two times mentioned above. One of the reports was from 2013 and the other was done in 2020. They were one-off events and not ongoing treatment. The applicant told the Tribunal he used to have anger issues and he was angry all the time but that he was no longer angry. He also completed an anger management program.
The applicant has not sought ongoing psychological care whilst he has been in Australia. He has also not sought assistance for his speech impediment. There is nothing before the Tribunal to indicate that the applicant would want to seek out psychological help upon return to Liberia. Nor is there any long-term psychological reports. In a search the Tribunal was able to locate a speech therapy institute in Liberia should the applicant wish to utilise their services.
‘SALT Rehabilitation Clinic’, SALT Rehabilitation Clinic, n.d. (accessed 11 September 2020), 20200504164006
SALT Rehabilitation Clinic is the first of its kind in Liberia specializing in Physical, Occupational, and Speech Therapies. SALT is being sponsored by CE Turkett Consultants, LLC. The clinic will be staffed by experienced therapists, and locally trained mid level workers who will be certified as clinicians in all three disciplines and supervised by licensed PT, OT and ST from the United States.
SALT Rehabilitation Clinic provides innovative clinical approaches, interventions, and programs in order to promote patients health and recovery. Our patients plan of care will be individualized to increase range of motion, muscle strength, coordination, balance, functional mobility, cognitive ability, expressive and receptive language skills, task oriented activity, family mobility training, falls preventions and stroke education strategies using life style changes.
Zubah Town Community, Duport Rd Paynesville, 1000 Monrovia Liberia, West Africa
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.
The Tribunal is not satisfied that the government would intentionally withhold services from the applicant, and any difficulties with availability are due to funding only given the current country information. The Tribunal is not satisfied therefore that there is a real risk of arbitrary deprivation of life 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. [10]
Returnee and westerner
[10] MZAAJ v MIBP [2015] FCCA 4 February 2015
The applicant claims he will be targeted as a western returnee to Liberia. The applicant as stated above has lived in Africa longer than he has lived in Australia. Whilst the Tribunal notes that the applicant will have difficulty returning to Liberia there has been programs run by various organisations assisting people in returning to Liberia to live.
There has been several programs available for returnees to Liberia including Assistance to Liberian Migrants, Humanitarian Return Assistance to Stranded Liberian Migrants and Repatriation Assistance for Migrants. [11] The International Migration Organisation can be of assistance for returnees. - International Organization for Migration – Liberia, undated
Programs that have been available for Migration – Liberia, undated
- Assisted Voluntary Return and Reintegration activities facilitate the orderly and humane return and reintegration of migrants who are unable or unwilling to remain in host countries and wish to return voluntarily to their countries of origin.
Return Assistance to Liberian Migrants and Third Country Nationals
·Assisted 5,132 Liberian migrants and 1,270 nationals of Ghana, Guinea, Sierra Leone, Nigeria and Burkina Faso to return to their home countries from Cote d’Ivoire.
Humanitarian Return Assistance to Stranded Liberian Migrants from West Africa
·Facilitated the return of 2,300 unregistered Liberians ineligible for the UNHCR Voluntary Repatriation programme.
Repatriation Assistance for Migrants
·Supported 200 Liberian migrants in Ghana to benefit from the UNIDO Skills Training programme.
Family Reunification and Assisted Voluntary Return
·Reunited Liberian immigrants, asylum seekers and refugees with their families in USA, Canada, and Europe
·Facilitated the voluntary return of Liberians from the UK, Holland, Libya, Morocco and Senegal
IOM fosters migrant integration through comprehensive resettlement services for the organized transfer of refugees, displaced persons and other individuals in need of migration services.
Relocation of Internally Displaced Persons
·Relocated over 22,000 persons internally displaced by the civil crisis in Liberia.
IOM provides reintegration assistance to migrants in the form of socio-economic support to promote their self-sufficiency and contributions to their local communities.
Disarmament, Demobilization, Reintegration and Resettlement
·Supported over 119,000 ex-combatants to resettle and reintegrate in their counties of origin.
·Trained and supported 660 ex-combatants to work with the Monrovia City Corporation transforming waste into organic fertilisers for food production in communities.[12]
[12]
The Tribunal notes that Liberia has a high poverty rate and that the applicant has not been in the country since he was [age] years old. However, there are programs available to assist him upon return to his home area. In addition, whilst the Tribunal acknowledges that the economy in Liberia is poor quality, the economic situation is the same for all citizens who live in Liberia.
The applicant has lived in Australia for eight years and the other [number] years [number] of which were in Liberia and the rest in African countries. The applicant has effectively lived longer in Africa than in Australia. Whilst the Tribunal acknowledges that the applicant’s immediate family lives in Australia the applicant is a young man and has the ability to make his life in his home area.
The applicant’s representative in his submission to the Tribunal refuted the Delegates decision and the findings of the delegate. The Tribunal read the submission and as this is a Tribunal decision and a fresh look at the applicants claims the Tribunal will not addressing the issues the representative had with the delegates decision.
The applicant will be separated from his family and the Tribunal has considered this. The separation from his family will not be the kind of harm that would amount to persecution which must be systemic and discriminatory.
ECOWAS
The Tribunal notes that Liberia is a member of the Economic Community of West
African States (ECOWAS) and therefore the applicant as a Liberian national may have a
right to enter and reside in another ECOWAS member country, under Section 36(3) of the Act.There are 15 member states of ECOWAS including Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. The Tribunal has considered information from a number of sources in respect of ECOWAS, including the rights of nationals of member nations to enter and reside in member countries.[13]
[13] The ECOWAS Protocol 1979: >The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region. The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an, international health certificate and are otherwise not inadmissible. [14] However, reports, indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws.[15]
Whilst such country information indicates that ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, it also suggests that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment, and extortion on the part of member nations.
The Tribunal has not made any findings as to whether the applicant has a right to enter and reside in the ECOWAS member states because it has found that the applicant does not face a real chance of serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion in Liberia.
The applicant’s representative suggested that the applicant benefits from the following International instruments: The applicant benefits from UN instruments including the Refugee Convention, the Convention against Torture and Other Cruel, and Degrading Treatment or punishment 1984. International Covenant on Civil and Political Rights 1966. This Tribunal has considered the questions that arise out of whether the applicant meets the criteria for a protection visa and meets the refugee or complimentary protection criteria.
Cancellation and miscellaneous
The applicant had his dependent partner visa cancelled under s.501 of the Act. However, this Tribunal has not considered his criminal record or prospects for the applicant’s future as they are not relevant to the questions before the Tribunal as to whether the applicant meets the refugee or complimentary protection criteria.
Further the Tribunal received notification of incorrect information forms from the representative and the applicant’s father that related to an issue during the grandmother’s protection visa refusal. The Tribunal does not find them relevant to the consideration of this application and has not addressed it. Similarly, the Tribunal received a letter from the representative about the applicant’s grandmother’s mental health. Whilst the Tribunal did ask about the grandmother and her visa status as many of the claims are her claims, the status of the grandmother’s mental health while sad, has little relevance to this Tribunal and its decision making.
Conclusion
For the reasons above, combined with the Tribunals findings on country information the Tribunal does not accept that if the applicant returns to Liberia he faces a real chance of persecution from his extended family or their associates based on his religion or any other reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Liberia, there is a real risk that the applicant will suffer significant harm from his extended family, or anyone associated with them. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in .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.
Nora Lamont
MemberSubmission Index – 2011033 – [Applicant’s name]
Documents submitted to the AAT
- PV refusal decision of applicant, dated 29 June 2020
Documents submitted to the Department of Home Affairs
- PV application: Record of responses – generated 12 October 2018
- Form 956: [Representative’s agency]- dated 12 October 2018
- Form 929: Change of Email Address Details – completed electronically 20 October 2018
- Death Certificate of [Relative C] – dated [in] March 2012
- UNHCR Government of Ghana Registration Card of [Relative E]
- ‘Fear Gripes Woman Over Death Threat’, The Inquirer, undated
- Australian Birth Certificate of ‘[a relative]’
- Liberian Passport of ‘[a relative]’
- Australian Birth Certificate of ‘[a relative]’
- Australian Passport of ‘[name]’ (applicant’s father)
- Australian Birth Certificate of ‘[a relative]’
- Australian Passport of ‘[a relative]’
- Traditional Marriage Certificate of [named] and [Relative E] – Ministry of Internal Affairs, Monrovia, Liberia
- Form 956 – [the applicant’s representative]
- Copy of Liberian Passport of applicant, expiry [in] 2013
- Copy of Liberian Passport of applicant, expiry [in] 2016
- Death Certificate of ‘[Relative B]’ - dated [in] March 2012
- Affidavit of [Ms G], sworn 20 September 2012
- Confirmation of membership of [Church 1], Liberia, for [Relative E] dated [in] September 2012
- Letter of support from [name] (friend of applicant), dated 30 December 2018
- Letter of Support from [name] (aunt of applicant), dated 14 December 2018
- Letter of Support from [name] (aunt), dated 26 December 2018
- Letter of Support from [name] (uncle), dated 21 December 2018
- Letter of Support from [name] (uncle), dated 21 December 2018
- Letter of Support from [name], Senior Pastor of [a ministry], dated 26 December 2018
- Letter of Support from [name] (partner of applicant), dated 20 January 2019
- Letter of Support from [applicant’s partner], dated 20 January 2019
- Letter of Support from [name] (mother of [applicant’s partner]), undated
- Psychiatric Report of applicant by [Dr H], dated 22 July 2013
- Affidavit of [Friend D], sworn 12 September 2012
- Letter of support from [Mr I] Branch Manager of [the applicant’s former employer], dated 15 January 2019
- Submission from Representative in response to post-interview questions, dated 23 January 2019
- Additional submission from Representative, dated 9 February 2019
- Submission from Representative relating to newborn brother of applicant, dated 12 January 2020
- Psychiatric Report by [Dr E], dated 6 March 2020
- Email from Representative to DHA making complaint about treatment of applicant in detention, dated 20 April 2020
- Submission from Representative to the DHA in response to s 57 Natural Justice letter, dated 15 May 2020
- Statutory Declaration of [Relative E], declared 17 May 2020
- Statutory Declaration of [the applicant’s father], declared 17 May 2020
- Letter by [Relative E] to AAT, dated 16 May 2020
- Submission by Representative – updated response to s 57 Natural Justice letter, dated 18 May 2020
- Notice of Incorrect answers (submitted after the hearing)
- Grandmothers mental health status (submitted after the hearing)
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.
…
free-movement-persons-residence-establishment/p28124; Revised Treaty of the Economic Communityof West African States July 1993: COISS Research Response CI150325110636777 April 2015: UNHCR January 2011 ‘Protecting Refugees and Other Persons on the Move in the ECOWAS Space’ Adepoju, A, Boulton, A & Levin, M 2010,
‘Promoting integration through mobility: Free movement under ECOWAS’ - ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697, p.23, < of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" -Liberia country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92317,
refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January2011, CIS22697, p.42,Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Remedies
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Natural Justice
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Citations2011033 (Refugee) [2020] AATA 6125
Cases Citing This Decision0