2205799 (Refugee)

2205799 (Refugee) [2022] AATA 3592 (14 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2205799
COUNTRY OF REFERENCE:                   Sierra Leone
MEMBER:Kate Millar
DATE:14 July 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2022 at 1:43pm
CATCHWORDS
REFUGEE – protection visa – Sierra Leone – member of particular social group – leaving Sierra Leone as a child – arbitrarily deprived of his life – mental health – lack of treatment options – returnee from Australia – returnee with no family support – role of his father as a policeman and alleged or actual collaborator – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of Sierra Leone, who arrived in Australia as a dependent on his mother’s Woman at Risk (Subclass 204) visa on [in] 2009. The applicant’s Woman at Risk visa was cancelled, and he has applied for a Subclass 866 (Protection) visa.
His visa application was refused by a delegate of the Minister on 11 April 2022, as the delegate was not satisfied that he was a person in respect of whom Australia has protection obligations.
The applicant is currently in immigration detention, and the hearing was expedited accordingly.
The applicant appeared before the Tribunal on 4 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his [mother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Krio and English languages.
BACKGROUND
Applicant
The applicant was born in Sierra Leone on [DOB]. His mother and brother live in Australia. He claims his father was a policeman who was killed in Sierra Leone and that his sister is also missing or killed.
The delegate records that the family originate from [City]and that the applicant was sent to live with his grandparents in Freetown when he as young. He fled to Guinea with his grandparents during the civil war
The applicant says he spent most of his life in Guinea living with his grandfather in a refugee camp, and he sold water in plastic bags to get money to feed the household. After his mother found him, and he came to Australia. Before he came to Australia, his grandfather died, and he was living with a friend of his mother. He said his grandfather was a father to him, he grew up with his grandfather and his grandfather was “everything”.
The applicant’s account of his family composition was strangely at odds with the evidence of his mother, who said his grandfather was still living in Guinea at the time of the hearing but was very ill, that his grandmother was living in Sierra Leone and that his sister had been located 2 years ago. This information was put to the applicant under s 424AA, with it being relevant to his credibility and that of his mother, and to his argument that he had no family support in Sierra Leone. The applicant said he had heard his grandfather was sick but didn’t really ask and that he had otherwise ‘never met these people’. Given the applicant deferred to his mother’s knowledge of events and of his family, the Tribunal concluded the evidence of his mother about the family composition is to be preferred.
His mother came to Australia on a Woman at Risk visa in 2004 with his brother, and the applicant travelled to Australia in 2009 as a dependent on his mother’s visa.
The applicant’s visa was first cancelled on 30 January 2015, and the decision to cancel his visa was remitted twice by the Courts and was again cancelled on 15 August 2021. He has been in immigration detention since 2015.
The applicant applied for a protection visa on 22 March 2022.
THE APPLICANT’S CLAIMS
In his application for the visa, the applicant claims:
We left the country because it was war time, and more over my dad was a police man and people think that my dad was the reason why they lose the family member or even love ones. So my dad was kill at that time and they were coming also for me and my family. At that time my family decided to move to Guinea cause that was the only place we can fine (sic) safety.
In answer to the question, “What do you think will happen to you if you return to that country/those countries”, he states:
I was young when I left Sierra Leone and I have no idea were to beginning in the first place.
The people that kill my father are still there and they will come after me because they believe that my father was the reason some of them lose their family member or love ones.
The help I am getting with my mental health is not available in my country.
At the hearing, the applicant also said there is secret killing in Sierra Leone, the government only says it wants people to return so that it can get money from the international community, that other people will think he has money if he comes back from Australia and that he will be a target and will be kidnapped or killed.
[The applicant] provided his health records, and the Tribunal asked about his mental health. He said he has depression and trauma and has nightmares about Sierra Leone. He is on medication, and if he returns to Sierra Leone, he will not get treatment for his condition.
The applicant stated he has a son in Australia and all his family is in Australia and there is no-one he can go to in Sierra Leone. He said he did not think he could live in Guinea as they used to live in a refugee camp. He said he has no family or friends and does not know anyone. He said it would be hard for him to live in Guinea as he does not know the language.
At hearing, he said he has a [younger brother], in Australia, a younger sister who was lost, and that his grandfather passed away a long time ago, before he left Guinea, and as a result he lived with his mother’s friend until he came to Australia. He said he never saw his father’s parents. His mother has siblings but during the war everyone scattered, and he does not know her brothers and sisters.
The applicant said that because he was so young when he left Sierra Leone, his mother recalls more about the family’s circumstances in Sierra Leone. As a result, the Tribunal invited his mother to give oral evidence at the hearing.
[The applicants mother] said during the war in 1991 his father was transferred to work in]City 2]. This was a place where the rebels were coming from the bush to the town. The police in [City 2] were playing double roles, giving information to the rebels. All the police in [City 2]were arrested and were killed in Freetown as they were accused by the government of being collaborators. The government was also looking for the wives and children of the collaborators, so she had to run away and leave the country.
THE DECISION OF THE DELEGATE
The delegate, while noting the applicant did not have any documentary evidence of his nationality, accepted the applicant is a citizen of Sierra Leone. The Tribunal also accepts he is a citizen or Sierra Leone.
The delegate records that at interview the applicant claimed to have no memory of his time in Sierra Leone, when he moved to Guinea or how old he was at that time, or how old he was when he came to Australia. He did not know when his father was killed and said these are the stories told by his family. He said his father was wrongly accused of being a collaborator and if they discovered he has returned to Sierra Leone, he may be harmed by the government or by locals. He was asked if there were specific people he feared harm from, but he did not know anyone specifically.
It is recorded that in his mother’s claim for a Woman at Risk visa, she said that the family was from [City 1] and the applicant was sent to live with his grandmother in Freetown a few years after he was born. His father was being targeted because he was a government worker (specifically a policeman).
The delegate found the applicant’s claim that that his father collaborated with the rebels was not consistent with his mother’s offshore humanitarian visa application.
The delegate accepted the applicant’s father may have been a police officer, and he may have faced issues because of his employment during the war. While the applicant did not know when his father was killed, departmental records showed his mother had fled to Guinea in 1999 without knowing where the applicant was, and the delegate found his father was killed at some time before 1999.
The delegate found his father’s role as a police office is no longer relevant when examining the applicant’s own risk of harm when retuning to Sierra Leone based on his political opinion.
In regard to the applicant’s mental health, the delegate found that the medical records provided by the applicant do not support his claim to suffer from mental health issues. The applicant said he had not received adequate treatment for his mental health in immigration detention, but that he had received treatment when he was in prison. The delegate reports that the appellant did not attend multiple medical appointments and did not accept his claim that he did not have adequate treatment in detention.
In considering his claim to fear harm as a returnee to Sierra Leone, the delegate found that there is a negative perception of returnees to Sierra Leone, particularly from a Western country. However, the delegate also found that recent programs had been implemented to better assist returnees to Sierra Leone with integrating into society. The delegate found that if the applicant were to return to Freetown, he would have employment opportunities, anonymity and police control of Freetown. The delegate found the applicant would not have a profile that would bring him increased attention from the authorities or community given the large number of returnees to Sierra Leone and he would not be a person of interest.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) (the Act) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is:
·A person in respect of whom Australia has protection obligations under the ‘refugee’ criterion,
·A person in respect of whom Australia has protection obligations under other ‘complementary protection’ grounds; or
·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 (the refugee criterion).
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).
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.
According to s 36(2A), a person 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.
The terms ‘torture’, ‘cruel and inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in s 5 of the Act, as set out 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.
While it must take into account 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, there are no DFAT reports on Sierra Leone.
ASSESSMENT OF CLAIMS
The applicant claims to be a citizen of Sierra Leone and to fear harm because his father was a policeman who collaborated with the rebels either from the government or from the local community. He claims he will return to no family support, and that he will be unable to access treatment for his mental health. He claims that people will think he has money if he is returned to Sierra Leone from Australia and he will be kidnapped or killed.
Sierra Leone gained independence from Britain in 1961. Civil war erupted in 1991 and continued until 2002, killing an estimated 50,000 people and displacing more than 2 million people out of a population of 6 million.[1]^,[2]
[1] Sierra Leone | Australian Government Department of Foreign Affairs and Trade, BTI places the estimate of casualties at 75,000, BTI 2022 Sierra Leone Country Report: BTI 2022, >
According to the United Nations Peacekeeping Mission in Sierra Leone, [3] conflict in Sierra Leone dated from March 1991 when fighters of the Revolutionary United Front (RUF) launched a war from the East near the border with Liberia to overthrow the government. Fighting continued until the negotiation of a peace agreement on 7 July 1999. On 22 October 1999, the UN Security Council authorised the establishment of the UN Mission in Sierra Leone (UNAMSIL) to cooperate with the government and other parties to implement the peace agreement. It completed its mandate in December 2005 and completed its withdrawal from Sierra Leone in 2006.
[3] UNAMSIL: United Nations Mission in Sierra Leone - Background, >
On 6 June 2008 the United Nations High Commissioner for Refugees recommended to States to end refugee status for Sierra Leoneans who fled the country due to civil war as there had been ”fundamental and durable changes since peace was declared in January 2002.”[4] In ending refugee status for Sierra Leoneans, UNHCR stated:
We are recommending to states to end refugee status for Sierra Leoneans who fled their country during the decade-long civil war which started in 1991, since the root causes of the Sierra Leone refugee problem have ceased to exist. There have been fundamental and durable changes since peace was declared in January 2002. The cessation will take effect at the end of this year on December 31, 2008 following consultations with the governments of the main countries of asylum and Sierra Leone.
…
Around 43,000 refugees from Sierra Leone continue to live in exile, mainly in neighbouring countries, including the Gambia, Guinea, Liberia and Nigeria. Sierra Leonean refugees in sub-Saharan African countries who want to repatriate voluntarily before the end of 2008 can benefit from UNHCR assistance. Those still in need of international protection will be able to remain in their current host country as refugees while those who do not qualify for asylum after 2008 but do not wish to return home because of strong family, social or economic links with the host country, will be expected to legalise their stay there.
The UN Mission in Sierra Leone (UNAMSIL) completed its withdrawal from the country in January 2006, handing over to the UN Integrated Office in Sierra Leone (UNIOSIL) responsibilities for peace consolidation, development and respect for human rights. Individuals most responsible for the atrocities committed during the conflict have been indicted and tried - or are in the process of being tried - by the Special Court for Sierra Leone. Significant improvements in rule of law and respect for human rights have also been recorded throughout the country and two sets of elections - in 2002 and in 2007 - have been determined free and fair by the international community.[5]
[4] UNHCR - UNHCR declares cessation of refugee status for Sierra Leoneans, Ibid
The European Union Report on Human Rights and Democracy in the World 2021 Country Updates published 19 April 2022[6] reports that the death penalty was abolished in Sierra Leone in May 2021. Challenges in human rights are cited as conditions in prison, and women and girls at risk of gender-based violence. It reports Presidential and parliamentary elections planned for mid-2023 have led to political polarisation of the ruling Sierra Leone People’s Party (SLPP) and opposition All People’s Congress (APC) with some inflammatory messages. The report states the lack of inclusive governance and the “winner takes all” system deepens political, ethnic and regional divides in the country. The EU reports a dire economic situation and a widespread perception of corruption. Economically vulnerable youth remained prone to political instrumentalism and participated in incidents of intimidation and violence during some by-elections.
[6] 2021 Human Rights and Democracy in the World (country reports), pp 144 – 146.
The United States Department of State Country Report on Human Rights Practices for 2021 for Sierra Leone[7] states that the observers found the 2018 elections to be largely free and fair. It is reported there were credible reports that the government or its agents committed arbitrary or unlawful killing. In April 2021 the Sierra Leone police shot and killed an unarmed youth during a student protest. The police officers were arrested and dismissed and at the time of the report were awaiting trial. A riot at the Freetown Male Correctional Centre in April 2020 resulted in numerous injuries and 31 fatalities including one corrections officer. One report was made of excessive use of force during a student protest. Observers reported a lack of crowd control and human rights training for police. Prison conditions were harsh and sometimes life threatening. Human rights groups such as Amnesty and the HRCSL (Human Rights Commission of Sierra Leone) indicated that the SLPP and chiefdom police occasionally arrested and detained people arbitrarily, including members of opposition parties.
[7] SIERRA LEONE 2021 HUMAN RIGHTS REPORT,
Role of his father as a policeman and alleged or actual collaborator

The applicant claims to fear harm from the government or the local community because his father was a policeman who collaborated with the rebels and caused peopled to lose their loved ones. He claims to fear local people, and being asked to clarify who he fears, said regular people or normal people whose relatives were killed because information was given to the rebels. The applicant said he was reporting what his mother told him as he was young when he left Guinea. He claims there are a lot of secret killings in Sierra Leone.
His mother said that during the war in 1991 his father was transferred to work in [City 2] and the police in [City 2] were giving information to the rebels. All the police in [City 2] were arrested and killed in Freetown. She said his father died because he was accused of being a collaborator.
It was put to her that this was different from the account provided to the Department in her visa application, which was that the applicant lived with her and her husband in [City 1] village in Sierra Leone, where her husband worked as a local police officer. In 1998, the applicant was sent to live with his grandmother in Freetown because it was not safe in the village with a war going on, and because his father was targeted because he was a government worker. Later that year, she moved with her husband to Freetown because the government told them to go there, and they lived in the[location deleted]. The applicant continued to live with his grandmother and they visited him wherever they could. In January 1999 rebels attacked Freetown and everyone fled, and she lost contact with the applicant. In response she reiterated her previous account.
In examining this claim, the Tribunal considered [ an article]. [Information deleted].. This report details specific events during January 1999, including killing of civilians and a large number of mutilations, in particular, amputation of arms, legs and other body parts by the RUF. It is reported there was widespread sexual violence. This report states:
While most victims were seemingly chosen at random, the rebels directly targeted a few groups, namely Nigerian nationals, unarmed policemen, and journalists. ... The rebels also killed at least eighty-five unarmed police officers.
…
While the RUF committed the vast majority of atrocities and other violations of international humanitarian law during the battel for Freetown, those defending the capital also committed serious abuses, both during and after the rebel incursion. Members of the Nigerian-led ECOMOG peacekeeping force, and to a lesser extent the members of the Civil Defence Forces (CDF) and Sierra Leonean Police routinely executed RUF prisoner and their suspected collaborators or sympathizers … Suspected rebel collaborators or sympathizers were often killed with little or no effort to establish their guilt or innocence.
The applicant and his mother have consistently stated his father was a policeman. The Tribunal accepts he was a policeman and was killed. Having had regard to the article provided, it is most likely he was killed after being recalled to [location deleted] in the period the rebels occupied Freetown, and was killed by the rebels because he was a police officer, but it is also possible that he was killed by government forces as a suspected or actual sympathiser. The Tribunal has considered both causes of his death in considering whether there is a real chance of serious harm or a real risk of significant harm to the applicant in the reasonably foreseeable future if he were to return to Sierra Leone.
Sierra Leone is seen as a successful peacebuilding exercise as it has not returned to civil war.[8] The UN’s disarmament program for 75,000 Sierra Leonean combatants is cited as a factor in this sucess, with 42,000 weapons collected by January 2002.[9] The RUF has a political party but failed to win a single seat in the 2002 elections. Sierra Leone has not returned to civil war despite facing challenges of youth unemployment, poor governance and corruption, regional and ethnic divisions and 70% of the population being in poverty.[10]
[8] Adebajo, A. (2021) “The Dog that Did Not Bark: Why has Sierra Leone Not Returned to War After Peacekeepers Left?” The State of Peacebuilding in Africa: Lessons Learned for Policymakers and Practitioners NcNamee, T and Muyangwa M ed.; Chapter 8 Sierra Leone: The Revolutionary United Front > PRISM | National Defense University > News, Adebajo, above, p. 344
[10] Ibid, p. 345
Hostilities ceased in Sierra Leone in 2002. This peace in Sierra Leone is shown in the withdrawal of UNAMSIL forces in 2005/2006 and the cessation of refugee status by UNHCR on 6 June 2008.
The Tribunal could not locate reports of family members of civilians or combatants being targeted due to the role of the person’s parent or other family member following the peace agreement or following the cessation of refugee status by UNHCR. It could not locate reports of “secret killings” as referred to by the applicant in retribution for acts during the war. Given DFAT reports that over 50,000 people were killed, it would be expected that if people were being killed in retribution, this would be in a significant number and would be reported in some form.
The Tribunal does not accept that a family member who was a young child at the time of the civil war, such as the applicant, would be targeted in retribution for any actual or perceived acts of his father if he returned to Sierra Leone.
The applicant says he fled Sierra Leone with his grandparents but cannot recall when this occurred. On the basis of the events in Sierra Leone, with the RUF taking control of Freetown in 1999, and his mother’s claims that she fled at this time, the Tribunal finds he left Sierra Leone in 1999.
This is now at least 22 years ago, and the applicant left Sierra Leone when he was approximately [age] years old. The Tribunal does not accept that either the government or the local community seeks to harm a family member of a policeman or a policeman who was an alleged collaborator with the rebels. In particular, it is not satisfied either the government or the local community would seek to harm a person such as the applicant who was [age] years old when he fled Sierra Leone because his father was a police officer or because his father was an alleged or actual collaborator.
As a result, the Tribunal is not satisfied the applicant would face a real chance of serious harm or a real risk of significant harm from the government or from the local community either because his father was a police officer or because he was a collaborator.
Due to the length of time since he left, the length of time since the end of the civil war and the actions taken to build peace in Sierra Leone, the Tribunal finds the applicant would not be imputed with a political view or be at risk of harm because of an imputed political view because his father was a police officer or because his father was an actual or alleged collaborator.
Arbitrarily deprived of his life
The applicant claims to fear “secret killings”. The Tribunal is not satisfied he would be at risk of being killed due to his father’s role as a police officer or because he was an actual or alleged collaborator with the rebels. It has proceeded to consider whether there is otherwise a real risk he would be arbitrarily deprived of his life.
With the application for review, the applicant provided an article titled “Killing of unarmed citizens – is the Sierra Leone Police above the law”. This is reported to be from the Sierra Leone Telegraph, 11 August 2020. This article reports that in 2016 or 2017, 2 people were killed at a protest. It states that killing of people by police in Tonkolili, Freetown, Makeni and other places means that the issue of police lawlessness with impunity needs to be confronted. It reports police using live bullets to disperse protesters, and the head of the police media unit stating protests must be approved by police and reporting police had fired tear gas at Kabala during protests, following which protesters started throwing stones and other missiles at police.
This is consistent with reports by USDOS of Sierra Leone police shooting a protester and of deaths during a prison riot. The Tribunal accepts there are reports of police lacking skills in crowd control and protesters being killed by live ammunition.[11] The reported risk is to people who are protesting. There is no information to show that the applicant holds a political view on affairs in Sierra Leone, and says he knows little about Sierra Leone. The chance that he will join protests on returning to Sierra Leone is remote.
[11] Four killed in Sierra Leone protest after police and army open fire | Reuters, Everything you need to know about human rights in Sierra Leone - Amnesty International Amnesty International, >
The Tribunal finds there is not more than a remote chance of the applicant being harmed due to police methods in controlling protests.
Mental health
The applicant claims to fear harm because of his mental health, and because treatment for his mental health is not available in Sierra Leone.
The applicant suffered trauma in leaving Sierra Leone during the civil war and fleeing to Guinea. He said he remembers asking for his father in Sierra Leone, and no-one would tell him what had happened. He recalls running from place to place and seeing people killed.
The applicant provided health records from the International Health and Medical Services (IMHS), the service that provides health services to people in immigration detention.
Mental health screening conducted on 10 June 2015 states he witnessed his father being killed and that his younger sister was killed. The applicant reported he had counselling in jail but declined further counselling in immigration detention. It notes he finds mirtazapine helpful.
The applicant had 2 sessions with a psychologist on 26 October 2017 and 3 November 2017, at which he was reported to have been prescribed mirtazapine but had never taken it as he is not a strong believer in medication other than for his back pain and only when necessary. The psychologist reports working with the applicant on mood regulation and stabilisation, which was progressing well. On 5 July 2017 he attended a medical appointment requesting medication for insomnia. After it was refused because he had not taken it previously when it was prescribed, he became agitated.
The applicant was assessed by a psychiatrist on 11 August 2018. The assessment was that the applicant has longstanding chronic post-trauma symptoms which are currently sub-threshold for post-traumatic stress disorder (PTSD). The degree of hypervigilance to threat is longstanding. He was reported to have no mood, anxiety or psychotic disorder currently and was reportedly comfortable with prolonged detention. The assessment did not appear to have a mental illness that is worsened by detention. It is recorded that no medication is required, and that routine monitoring of mental state is required.
On 14 August 2018, the applicant is recorded as requesting referral to Foundation House after encouragement from SERCO officers. Foundation House offers counselling to people who have suffered torture or trauma.[12] It is recorded that while he is coping with memories of the trauma he experienced in Sierra Leone, he has found it more difficult the longer he is in detention and the more likely it is that he will be returned to Sierra Leone. It states he is aware of how to engage with the mental health team.
[12] English | Foundation House, >
On 28 December 2020 it is recorded that STTARS (Survivors of Torture and Trauma Rehabilitation Service) requested a telephone number for the applicant for a counselling session. The applicant is reported as saying he is not eating much and often has poor sleep. He was observed to be slightly dishevelled in appearance and had limited engagement with the mental health nurse, but no other concerns were voiced.
A GP consultation on 3 March 2021 reports that the applicant was complaining of tiredness and insomnia as the mirtazapine had stopped, and that he used to take mirtazapine for depression and insomnia. Mirtazapine was restarted and he was advised to take it regularly every night. Poor compliance with mirtazapine is noted on 15 July 2021, and on 19 July 2021 he is recorded as stating he would like to take it only when he needs it.
At the hearing, the applicant spoke of 2 friends in detention who had taken their own lives, and another friend who he said had been returned to Sudan and was killed. He said the counsellors only speak to him by phone, and that he is taking his medication now. He said if he does not take his medication he is unable to sleep.
The Tribunal does not doubt the applicant has suffered trauma in his early years due to the civil war in Sierra Leone, fleeing to Guinea, and living in a refugee camp for approximately 10 years. He says he has friends who have taken their own lives in detention and another who was killed on his return to Sudan.
His reported symptoms are insomnia, depression and hypervigilance. He is not noted to have symptoms that would bring him to the attention of others in the community. He is reported not to take, or take infrequently, the medication that was prescribed for him.
The Tribunal accepts the applicant would have a limited ability to access mental health services in Sierra Leone, and that return to Sierra Leone will exacerbate his insomnia, depression and hypervigilance. It is not satisfied he would suffer a real chance of serious harm or a real risk of significant harm from others due to these symptoms.
The Tribunal is not satisfied that he would not be able to work or function if he did not have medication, as he is reported to have not taken this medication or has only taken it intermittently. His claims to be taking his medication regularly now are at odds with a lengthy history of not taking the medication or taking it intermittently. The Tribunal accepts that he had complained of difficulty sleeping over a long period of time but has not routinely taken medication for this condition even when it was available to him.
The Tribunal finds that the applicant does not face a real risk of serious or significant harm if he returns to Sierra Leone due to his mental health.
Returnee from Australia
The applicant arrived in Australia on 10 September 2009 and has now been in Australia for nearly 13 years. He has been in prison or in immigration detention for the majority of the time he has been in Australia.
The applicant claims that if he returns from Australia people will think he is wealthy and he will be kidnapped or killed.
While the Tribunal could locate articles that refer to the local community having high expectations of people who applied for asylum in a Western country, and negative perceptions of people who had returned,[13] no information was located on targeted attacks or violence against returnees. There is a perception people returned from Western countries have been involved in criminal activity.[14]
[13] 'Return Migration to Sierra Leone: Monitoring the Embeddedness of Returnees', Radboud University Nijmegen and University of Amsterdam, Maaike Derksen, 30 January 2008, CIS7B839419969
[14] Ibid
People who have stolen money from their families to migrate or have been funded by family assets to leave are perceived negatively on their return and may be rejected by their family.[15]
[15] ‘We failed to reach Europe – now our families disown us’ - BBC News, >
Sierra Leone issued its National Migration Policy in January 2002.[16] This nominates the management of return migration and reintegration of returned migrants, including vulnerable migration, as a key policy goal for the Sierra Leone government.[17] Policy strategies specified include providing psycho-social services to address trauma related need such as PTSD, and promoting socio-cultural acceptance of returned migrants and the protection of returnees’ rights [18]
[16] 20220114-Final-Draft-National-Migration-Policy-4.pdf, Ibid at [6.3.1]
[18] Ibid at [6.3.4] and [6.3.5]
The applicant was provided with the opportunity to comment on the Sierra Leone National Migration Policy. He said that the government will say anything to get international funding and that the government won’t help; he will be on his own if he returns to Sierra Leone.
The Tribunal finds that the government of Sierra Leone is trying to encourage return migration and is putting in place strategies to assist returnees. The Tribunal accepts that the applicant is anxious and fearful about returning to Sierra Leone and may be perceived to be wealthy when he is not. The Tribunal finds he may experience hardship and negative perceptions from others on his return.
However, the Tribunal rejects his claim that he will be kidnapped or killed and is not satisfied that the negative perceptions of the community amount to serious harm or significant harm as defined by the Act.
The Tribunal considered whether his criminal history in Australia would place the applicant at risk. Sierra Leone’s Constitution provides for protection against double jeopardy where the previous trial has been by a competent court.[19] The Tribunal does not consider there is a real risk that he would be tried again for the same offences and potentially imprisoned.
[19] Art 23(9)
Returnee with no family support
The applicant claimed to have no family support in Sierra Leone. His mother gave evidence that his grandmother is living in a village in Sierra Leone.
The information that his grandmother is alive and living in Sierra leone was provided to the applicant at the hearing under s 424AA of the Act. He said he did not know these people or the place where she lives.
The Tribunal does not accept he will return to Sierra Leone without family support as his grandmother is in Sierra Leone.
Leaving Sierra Leone as a young child
The applicant said he did not know when he left Sierra Leone. Given the events in Freetown and his mother’s evidence, the Tribunal estimates this was 1999, when he was approximately [age] years old. He has not lived in Sierra Leone since. Between approximately 1999 and 2009 he was in Guinea.
There were a large number of people displaced by the civil war, with estimates of over a million people being displaced, and currently 25% of the population living outside their area of birth.[20] Most of those displaced in the civil war went to neighbouring countries such as Guinea.[21] The applicant spent a large proportion of his life in Guinea and will be among many who return having spent lengthy periods in Guinea.[22]
[20] Sierra Leone - Migrants & Refugees Section, reportsierraleonefinal.pdf (admintribunal.internal) p. 3
[22] Sierra Leone - Migrants & Refugees Section,
The applicant nominated Krio as his preferred language, and this is the language predominantly used in Freetown.[23] English is viewed as the elite language and is the language of government.[24]
[23] “Mother tongue won’t help you eat”: Language politics in Sierra Leone’, Gellman, M, African Journal of Political Science and International Relations, Vol. 14(4), October-December 2020, pp.140-149 at p.143, 20210620085059
[24] Ibid
Cumulative effect of the applicant’s claims

The Tribunal must consider the cumulative effect of the claims raised by an applicant. This is another way of stating that the Tribunal must consider all of the attributes of a person and decide if this person with all their attributes faces a real chance of serious harm or a real risk of significant harm.
In drawing from the findings made above, the applicant is male and in his 30s. His father was a police officer who was killed in the civil war, either because he was a government worker or because he was a police officer alleged to have, or who actually had, collaborated with the rebels. The applicant has not lived in Sierra Leone since he was a child, and lived in Guinea for approximately 10 years before coming to Australia. His grandmother lives in Sierra Leone and he has some family support. He has some difficulty with his mental health, but not to the extent that he requires continuous medication or exhibits bizarre behaviour. He will be returning after 13 years in Australia and may be perceived to be wealthy and face a negative perception in the community.
The Tribunal has considered the circumstances of the applicant and is not satisfied there would be a real chance he would suffer serious harm or a real risk he would suffer significant harm if he were to return to Sierra Leone. This is not to imply life will not be very difficult for him as the standard of living in Sierra Leone is significantly lower than in Australia.
CONCLUSION
The Tribunal has found that the applicant will not face a real chance of serious harm in the reasonably foreseeable future as defined in s 5J(4)(b) of the Act . As a result, he does not have a well-founded fear of persecution and does not meet the definition of a refugee in s 5H of the Act. It follows that he does not meet the eligibility criteria for a protection visa specified in s 36(2)(a) of the Act.
The Tribunal has found he is not at risk of significant harm as defined in s 36(2A) of the Act and he does not meet the criteria for a protection visa in s 36(2)(aa) of the Act.
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.
As he does not meet any of the criteria in s 36(2) he is not eligible for a protection visa, and the decision under review is affirmed.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior Member

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

[2022] AATA 3592

14 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness