1826133 (Refugee) [2023] AATA 4813 (22 November 2023)

Last Updated: 1 May 2024

1826133 (Refugee) [2023] AATA 4813 (22 November 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Shahid Nadeem (MARN: 0851112)

CASE NUMBER: 1826133

COUNTRY OF REFERENCE: Sierra Leone

MEMBER: Tania Flood

DATE: 22 November 2023

PLACE OF DECISION: Sydney

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

Statement made on 22 November 2023 at 12:41pm

CATCHWORDS

REFUFEE – protection visa – Sierra Leone – particular social group – bisexual – homosexual man – gay rights activist – death of a relative – physical assault – detention – violence by police – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the Department’) on 27 August 2018 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Sierra Leone, applied for the visa on 29 September 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia owed protection obligations.
3. The applicant appeared before the Tribunal on 20 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].
4. The applicant was represented in relation to the review.

CRITERIA FOR A PROTECTION VISA

5. The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
6. 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.
7. 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).
8. 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.
9. 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

10. 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

11. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.
12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

MIGRATION HISTORY

13. The applicant lodged a Visitor (class FA) visa on 11 August 2017. This was granted on 1 September 2017. He arrived in Australia [in] September 2017. He applied for a Protection (class XA) visa on 29 September 2017. Applicant’s background

Protection visa application

14. The following information was provided by the applicant in his application for a Protection visa. He is from [Town 1] in the northern province of Sierra Leone. He is Limba by ethnicity and identifies as a Christian. He declared being in a de-facto relationship since 11 September 2011 which commenced in Freetown.
15. The applicant’s mother is deceased, his father resides in [Town 1] in Sierra Leone with his stepmother. His de-facto partner and their [children] ([genders specified]) remain in Sierra Leone. The applicant has [specified family members] who also reside in [Town 1], Sierra Leone.
16. The applicant did not complete high school. In 2015, he commenced volunteering as [an occupation 1] at [Agency 1]. Then in 2016, he commenced [sport 1] with [Agency 1]. He earnt an income up until his departure in September 2017, by “walking around with goods to sell”.
17. From 2005 until his departure from Sierra Leone in 2017 he resided in Freetown.
18. The applicant claimed to fear harm on the grounds of him being bisexual and a gay rights activist.
19. The applicant submitted a statutory declaration, dated 15 November 2017. In that declaration, the applicant claimed to have been in a de facto relationship with a woman since 11 September 2011. Together, the parties have [number] children. [Details deleted.] He claimed that his partner and children remain in Sierra Leone.
20. The applicant claimed to be a gay rights activist.
21. The applicant claimed that in the early 2000s, his then 15-year-old cousin told the applicant that he was homosexual. That initially the applicant was surprised and very upset, but over time came to accept his sexual orientation.
22. The applicant claimed that his cousin’s sexuality was known to the community. He claimed that [in] November 2014, his uncle informed him that his cousin had been killed. That his body was found on the floor of the house he was living in in [a town in] in Freetown and that [detail deleted].
23. The applicant claimed that his uncle reported the murder to the police and had explained that his cousin was homosexual to which the police detained the applicant’s uncle for approximately 2 weeks before releasing him. That the police did not investigate the applicant’s cousin’s murder. That the applicant believes that his cousin was murdered for being homosexual. That from this point onwards, the applicant pursued activism for gay rights.
24. The applicant claimed that he advocated for gay rights by encouraging tolerance of sexual orientation. That he utilised social occasions were young people gathered to look for opportunities to advocate for gay rights. The applicant gave the example of going to [venue 1s], to play [specified games] and chat. That he did this most weekends, where typically between 5-30 people gathered and took the opportunity to discuss homosexuality.
25. The applicant claimed that in 2015, he met [Mr B] who was also a gay rights activist. Together, the applicant and [Mr B] sought to advocate for gay rights.
26. The applicant claimed that at around midnight on [a day in] June 2016, approximately 5 people wearing masks broke into the applicant’s house. That two people came into his room and beat him and threatened him with a knife. They said if he did not stop advocating for gay rights they would kill him.
27. The applicant claimed that he last saw [Mr B] at the beginning of November 2016. That initially he attributed this to [Mr B] travelling.
28. The applicant claimed that still in early November 2016 he was threatened by a group of unknown people. That he was told to cease his activism or “they would do the same thing” that they did to [Mr B]. The applicant claimed that upon enquiry, he was told that he “would have to learn” what they had done to [Mr B]. That from this moment, the applicant believed that [Mr B] had been killed. After this he decided that it was not safe for him to stay in Sierra Leone and he started to plan to leave.
29. The applicant claimed that a friend of his from [Agency 1’s] [sport 1] team, advised him that he should flee Sierra Leone. That this friend supplied a recommendation to obtain a service passport, which was issued [in] 2017.
30. The applicant claimed that he was afraid to travel alone, as he had never done so before. That he waited to leave with the group in September 2017. That the group was delayed as they were waiting for the next competition.
31. The applicant claimed that on [a day in] August 2017, he organised a get together at [location 1] Freetown. That a group of individuals interrupted the meeting. Other people fled, but the group beat the applicant. That he bled from his mouth and nose.
32. The applicant claimed that a passing police petrol disrupted the violence and detained the applicant. That he was placed into a single dark cell, because he was “neither a man, nor a woman”.
33. The applicant claimed that twice while he was in the cell, two officers beat him with canes. That they threatened to kill him if he continued “with this lifestyle”.
34. The applicant claimed that after 5 or 6 days in the cell, he was released. That he was released only because a fellow gay rights activist bribed the police officer. The applicant claimed to have trepidations about disclosing the activist’s name in his statutory declaration, as a safety precaution.
35. The applicant claimed that if he were to return to Sierra Leone, he would be killed either by the group of people who have previously threatened him or other members of that group elsewhere in the country or by the police.

Departmental interview and decision

36. The applicant provided the Tribunal with a copy of the Department’s decision. The decision indicates that in his interview with the delegate the applicant reiterated the claims outlined above. He introduced a new claim that he had been wanted by [Organisation 1] since 2005 and that if he were to return to Sierra Leone he would be unable to relocate in his hometown due to his profile with [Organisation 1]. He further claimed that he had previously had a sexual relationship with a man named [Mr B] for approximately 10 months. Regarding his relationship status, the applicant claimed to be in a relationship with a woman with whom he has [number] children in Sierra Leone. He stated that he intended to marry her at a later point.
37. The delegate did not accept that the applicant was bisexual, that he was a homosexual rights activist and/or that he was wanted by [Organisation 1]. The delegate accepted that the applicant’s cousin was murdered and found that the applicant is married in Sierra Leone. The delegate did not accept that the applicant is a person in respect of whom Australia has protection obligations.

Evidence submitted to the Tribunal

38. The applicant submitted a copy of his passport’s bio-data page; a health summary sheet; a letter of support from [Mr A]; a copy of the Offences Against the Person Act 1861 and a submission prepared by his representative.
39. The submission provides insight into the applicant’s family background and notes that the siblings listed in the application for the visa are in fact his half brothers and sisters [details deleted]. It is submitted that the applicant’s biological mother died when he was [age] and he was raised by his grandmother and uncles. In 2005 the applicant moved to Freetown where he lived by himself until he left Sierra Leone in September 2017.
40. It is submitted that the applicant has never been married or in a de facto relationship. He describes his relationship with the mother of his [children] as that of girlfriend and boyfriend. The relationship commenced on 11 September 2011 but apart from two or three months here and there they never lived together not even after the children were born.
41. The submission notes that the applicant is a bisexual person and a gay rights activist. It is further submitted that he belongs to the social group of homosexual men. Previously he faced persecution in Sierra Leone for expressing his views in favour of homosexuality.
42. It is submitted that the applicant first discovered his homosexuality when he was taking baths with other naked men and boys in a stream in Freetown in late 2015 and early 2016.
43. It is submitted that the applicant had his first sexual interaction with a man in about February 2016 when he had sex with his homosexual friend and gay rights activist, [Mr B] whom he met for the first time in 2015. He continued his homosexual relationship with [Mr B] until his sudden disappearance in November 2016. They had sexual relations in [Mr B’s] home. The applicant suspects that [Mr B] was murdered by the same anti-gay group which attacked and threatened him in June and November 2016.
44. It is submitted that at the time he was seeing [Mr B] he also started a homosexual relationship with another individual named [Mr C] whom he met in a pub known as [Hotel 1] in Freetown in or about February 2016. This relationship lasted about 9 months. They would have sex in [Mr C’s] place and sometimes in a hotel called [Hotel 2].
45. It is submitted that the applicant also had a month-long relationship with another homosexual friend known as [Friend A] whom he met at a party in [Location 2] in Freetown in or about October 2016.
46. It is submitted that since his arrival in Australia the applicant’s drive for homosexuality has increased and he has had many short homosexual relationships and hook-ups. He claims to have had more than 40 hook-up relationships with random men since arriving in Australia.
47. It is submitted that the applicant’s first short-term homosexual relationship started soon after his arrival in Australia when he met an individual named [Mr A] in [Suburb 1] in October/November 2017. [Mr A] was a volunteer worker at charitable organisation [Agency 2] whom the applicant was referred to. He and [Mr A], who was also bisexual, quickly became friends and had sex at [Mr A’s] apartment in [Suburb 2]. The relationship lasted about 3 months. While they are still friends they no longer have sexual relations. [Mr A] was requested to give evidence at the hearing but refused. It is submitted that [Mr A] is a father of two children now and does not want anyone to know about his homosexuality. He has nevertheless written a letter of support which is attached.
48. It is submitted that the applicant is a regular visitor of a gay club known as [Club 1] located [in Suburb 3] where he would find interested gay men for sex. The applicant also uses a gay dating App known as [App 1] to find partners for hook-ups. He has a history of text exchanges with gay men whom he met on [App 1] but does not consider it to be appropriate to tender it to the Tribunal.
49. The applicant submits that in 2022 he contracted a sexually transmitted disease known as Gonorrhea for having unprotected sex with another man. The attached Health Summary Sheet is referred to.
50. It is submitted that the applicant does not feel sexual attraction towards the opposite sex including his past girlfriend any longer. He is only in touch with his past girlfriend and provides her financial support for the sake of the children. He no longer wants to marry her.
51. It is also submitted that the applicant was an activist for homosexual men while in Sierra Leone. He commenced his activities after the murder of his cousin [in] November 2014. His activism involved encouraging young people to be more acceptable of gay men and to not discriminate against them for their sexual orientation. He would express his views on a regular basis in public gatherings known in Sierra Leone as “[venue 1s]” where groups of people get together to pass time.
52. It is submitted that the applicant’s claims of activism for homosexual men was misunderstood by the delegate. He submits for clarity that his activism only involved expression of his sympathetic views for homosexual men in an informal way in discussions in groups at [venue 1s]. He was not a kind of activist who would make speeches in gatherings or organise protests. The applicant submits that his consistent expression of his sympathetic views about gay rights exposed him to anti-gay groups which later attacked and threatened him. He submits that it was during the [venue 1s] gatherings that he met [Mr B] in 2015. He continued to express his view in [venue 1s] gatherings until November 2016.
53. It is submitted that the applicant faced violent attacks in Sierra Leone due to his favourable views of homosexuals. He faced verbal abuse many times during [venue 1s] gatherings and was physically attacked twice.
54. It is submitted that on [the day in] June 2016 about five men wearing masks broke into his house in [Location 3] in Freetown. Two of the five men entered his room and beat him with their hands and threatened him with a knife. They told him that if he did not stop talking about homosexuals they would kill him. For fear of reprisal he did not report the matter to the police but continued expressing his views.
55. It is submitted that in early November 2016 a group of people again broke into his house in [Location 3] and beat him up. During the attack the people threatened to do the same to him as they did to his friend [Mr B]. Again he did not report the incident to police and for fear of getting killed he stopped expressing his views on gay rights after that incident.
56. On [a day in] August 2017 in another incident, the applicant and his friends were attacked by a group of people when they were having a mid-night party at a beach located in [location 1]. The attackers did not like gay people and they interrupted the party and attacked them. While the applicant was being beaten by the group a police patrol arrived and saved him from the attackers. However, he was taken to the police station where they detained him in a single cell. During the detention the police beat him with canes and told him he was neither a man nor a woman. The police warned him to change his lifestyle or he would be killed. After 5-6 days he was released from detention by the police. He has no record of his detention.
57. It is submitted that same-sex sexual activity is prohibited in Sierra Leone under the Offences Against the Person Act 1861 which criminalises acts of “buggery” and carries a maximum penalty of life imprisonment and a minimum penalty of imprisonment for any term not less than 10 years.
58. It is submitted that due to the applicability of the law internal relocation is not possible.
59. Various submissions are made in respect of the applicability of Australia’s immigration laws in the applicant’s case.
60. As to the introduction of new information and claims in the submission it is submitted that the reason for this is due to the applicant being shy in expressing himself at the time and also scared about giving information about his homosexuality.

The Tribunal hearing

61. The applicant appeared before the Tribunal on 20 October 2023 to give evidence and present arguments. His testimony is summarised as follows:
62. Prior to departing Sierra Leone he lived alone in [Location 3] in Freetown. He moved to Freetown in 2005 when he declined to be part of a secret society in his home area. He has never returned home to his home area for this reason since 2005 and hasn’t seen any of his immediate family since 2005. He claimed he doesn’t really know his family as he grew up with his grandmother.
63. When he was living in Freetown he had an uncle also residing there. He was close to him. He has no other remaining relatives in Freetown now other than his children and ex-girlfriend who live with her parents.
64. His relationship with the mother of his children commenced in September 2011 in Freetown. He said she was not aware he was bisexual. He said the relationship is no longer intact. It ended when he left Sierra Leone. When asked if he made that clear to her at the time he said he did. He stated they remain in contact.
65. Whilst in the relationship they did not live together however she sometimes stayed with him for two to three months at a time with the children. He said he preferred to live like that to maintain his privacy.
66. He has never had another relationship with a woman. He is not currently in a relationship with anybody.
67. From around 2012 he volunteered with the Sierra Leone [Sport Agency 1] and sometimes received a stipend for his efforts. He was also a [competitor]. Previous to that his uncle helped him with money and he also peddled goods on the street for an income. He continued that work until he departed Sierra Leone.
68. He obtained his service passport, a passport for government officials, [in] 2017. It was organised for him by the [Sport Agency 1]. When asked if he came to Australia to compete in a [sport 1] competition he said his sole aim in coming to Australia was to seek asylum.
69. As to his [Country 1] visa he said that he was scared and was trying to get out of Sierra Leone but he doesn’t speak [that language] and didn’t have money. His travel to Australia was paid for by the [Sport Agency 1].
70. As to why he fears returning to Sierra Leone he said he is known as a person who speaks out in favour of gay men. He said he is bisexual and this information is also in the hands of anti-gay people.
71. Regarding his activism for gay people he was motivated by the death of his gay cousin in November 2014 and due to his bisexuality. By activism he means he went to places where young people gather and would try to steer the conversation towards the topic. By way of example he said he would ask the group whether they thought a particular soccer player was gay and from their response he could gauge how far he could take the conversation. If they agreed with his observation and indicated they knew something about homosexuality he would continue. He said he visited approximately 20 or 30 venues in different areas of Freetown on the weekends. If he encountered troubles he would stop for a few weeks. When asked if he took other precautions to ensure his safety given the risky nature of his activism he said he hid behind the fact he had a girlfriend and children.
72. When asked if he conducted this work alone or with others he said he had other people whom he met through the [venue 1s]. When asked how he joined forces with other like-minded people he said that after giving his input in group discussions he was sometimes approached outside of those venues by people who had heard him talk.
73. He was not involved with any gay rights groups and is not aware if any such groups exist in Sierra Leone. When asked if made any effort to locate such groups he said he did as it is too risky.
74. He last advocated for gay people in Sierra Leone in November 2016.
75. Regarding the claimed past harm the applicant restated his previous testimony in respect of the two claimed attacks in 2016. He said that after the first incident in which he was beaten he convinced his attackers he would stop speaking in favour of gay people but he didn’t. After the second attack he became afraid. He was told it would be his final warning and that if he didn’t stop he would receive the same treatment as his partner [Mr B] who had gone missing. Given what happened to [Mr B] the Tribunal asked why he was let go. He said those type of people know they are above the law in Sierra Leone and knew that he would not be able to identify them even if he reported the attack. The Tribunal asked again why the attackers let him go instead of killing him right there and then. He replied he does not know. He said he is not sure whether the attackers knew he was in a sexual relationship with [Mr B] and they did not accuse him of that. He confirmed he was not harmed on that occasion, just threatened.
76. Between November 2016 and September 2017 he kept quiet. He said however that he was having sex with various men during this period. In addition he was continuing to sell his goods on the street and volunteering with the [Sport Agency 1].
77. Asked how he felt after that incident he said he felt the attackers were serious and he was very scared. He thought they might kill him. When asked why he did not flee the area he said that he told the attackers he would stop his activism. He said if he moved away they would think he had tricked them.
78. The Tribunal put it to the applicant that he had been attacked twice, felt scared and thought he would be killed and that its difficult to accept in the circumstances that remained living openly for many months before departing Sierra Leone. The Tribunal also noted that his passport indicates he held a valid visa to [Country 1] issued in April 2017 which he did not use. The applicant asked what he could have done in the circumstances. He stated that there were other gay people in the [Sport Agency 1] and they advised him to stay and not do anything.
79. About the claimed incident which occurred on [a day in] August 2017, he and some other gay people organised a midnight party. Some community members who don’t like gay people came and interrupted the party. They attacked them and his colleagues ran away but he was captured and beaten. A passing police patrol arrived and they intervened and took him to the police station where he was put in a cell and beaten because he is gay. When asked why the police would think he was gay he said the people who attacked them told the police they were doing “gay stuff” at the beach. He was held for five to six days and beaten twice with canes by one police officer at a time. They told him he should stop speaking out about gay rights.
80. The Tribunal put it to the applicant that his behaviour, specifically organising a gay party at a public beach, doesn’t support his claim that he was fearful for his life. He argued that it did. He said that he was persistent so that his enemies would think he was not going to go anywhere and they could still get to him while in the meantime he was planning his escape. The Tribunal responded that it sounds like he was inviting harm and that his actions don’t make sense but he insisted it did.
81. When asked where he went after being released from the jail he said he went to the [Sport Agency 1]. His visa was ready and they were ready to travel to Australia. He left Sierra Leone [in] September 2017.
82. The Tribunal put it to the applicant that it is difficult to accept in the circumstances that he delayed his departure from Sierra Leone until September 2017 given he was in possession of a passport from [early] 2017. The Tribunal suggested that delaying his departure and engaging in risky behaviour in public doesn’t appear to support his claim that he was fearful of being killed after the incident which occurred in November 2016. He responded that his claims are true but conceded he was engaging in risky behaviour.
83. The applicant was asked if he has continued his gay rights activism in Australia and he replied he has not. When asked why he said it is due to the trauma he has experienced. He said he perceived he would encounter the same treatment as he had in Sierra Leone. The Tribunal noted that he has lived in Sydney, a gay friendly city, for six years now and enquired why he feels scared to continue with his activism here. He said he is scared he will be perceived to by gay by members of the Sierra Leonean community here.
84. The Tribunal asked the applicant if he has approached or joined any gay rights advocacy groups in Australia. He replied that he does not know the names of such organisations or what type of activities they do. He said he has had some involvement with a group called [Agency 2] but he doesn’t know if it’s a gay rights organisation or not.
85. When asked who he has revealed his sexuality to in Australia he said he has told no-one in the Sierra Leonean community. When asked if he has told anybody else he named [Mr A], the person he met through [Agency 2]. When asked if anybody else here knows about his sexuality he said he has met a lot of gay people and had relationships with a lot of gay people.
86. When asked how he currently identifies sexually he said he is a gay man who engages in same sex activity. When asked why he described himself as being bisexual at the commencement of the hearing he said that was his past identity. When asked when he first started identifying as a gay man he said since about October or November 2017. He confirmed that he has not had a sexual relationship with a woman in Australia. He said the last time he had sex with a woman was in Sierra Leone with his partner. When asked when that was he said one month before he left.
87. When asked how soon after arriving in Australia he started pursuing sex with men he said it was in February 2018 that he first had a sexual encounter. He said it was with [Mr A]. He said they met through [Agency 2] and started going out together to beaches. They became attracted to each other and [Mr A] told him he was gay. He said they had a relationship for three months but it ended because [Mr A] was married and he wanted more from him. He broke off the affair and he stopped seeing him. However, they have remained in contact until now.
88. The applicant said he has had other casual hook-ups with men he meets at [Club 1]. He said he also meets men online using a application called [App 1]. When asked if there are other ways he meets men he said at clubs and beaches. When asked what other clubs he frequents he said there is another club but it is not a gay club. He said the only gay club he visits is [Club 1]. When asked if he goes there alone or with others he said he goes alone unless he has met someone online and they go together.
89. The applicant stated that he started going to gay clubs and using a gay dating app and hooking up with other men after he broke up with [Mr A]. He said he had no further sexual encounters with men between ending the relationship with [Mr A] and 2019 when he started going out to clubs.
90. The Tribunal stated that it appears he has been quite actively pursuing men and asked if he has any evidence to support this. He said he has his [App 1] history. His representative indicated that he had advised him it might not be appropriate to submit such evidence.
91. The Tribunal asked the applicant if there is anybody it could call who could verify his claims. He said no as his encounters with men here have only been casual hook-ups. He said the only person who could give evidence on his behalf, [Mr A], has refused to do so. He said he explained to [Mr A] that the proceedings are confidential but he still refused because he is a father now and has children.
92. The applicant stated that he is not active on Facebook or social media but he does participate in Facebook chat groups. The Tribunal advised the applicant that it would consider any evidence he choses to provide in support of his claims. The Tribunal indicated that certain types of evidence such as photographs and chat messages might not attract a lot of weight as they do not always provide positive proof of a person’s sexuality and such evidence can also be fabricated for false purposes.
93. The applicant referred the Tribunal to medical evidence indicating he has a sexually transmitted disease. The Tribunal acknowledged the information but noted that gonorrhoea is not an exclusively gay disease. He agreed.
94. When asked when he first realised he was bisexual he said he realised he was interested in men when he was bathing in a stream with some boys and young men in around 2015 or 2016. When asked how that realisation made him feel he said it made him feel good. He said he was a bit confused and asked himself if he wanted to have sex with men. He said that feeling continued. When he met [Mr B] he realised his feelings were not wrong and he thought he had to follow through with them.
95. The Tribunal asked the applicant if he felt worried given the situation for LGBTI people in Sierra Leone. He said he wasn’t thinking about harm, only that he liked the feelings and that he felt good about it. He said he was around [age] years old by then.
96. The Tribunal asked the applicant whether in the years he had been advocating for gay rights and coming into contact with other gay people if he had any prior inclination he might be attracted to men and he said he did not. When asked why he thinks those feelings suddenly occurred to him when bathing in the stream he said it was because the men and boys were naked. The Tribunal suggested it might not have been the first time he had seen a naked man and he said he couldn’t remember but he knows he experienced an erection on that occasion.
97. The applicant stated he met [Mr B] in 2015 at the [venue 1] discussions. He said that [Mr B] was the one who initiated intimacy between them. He said he felt good about it as he had already told [Mr B] he welcomed the idea.
98. The applicant stated that after being with [Mr B] his sexual appetite began to grow. He met another man in February 2016 called [Mr C] with whom he had a nine-month relationship. That relationship ended when [Mr C] found out he was also seeing [Mr B]. Later he met [Friend A] in October 2016 and had a month-long relationship with him. That relationship also ended when [Friend A] found out he was involved with [Mr B].
99. The Tribunal put it to the applicant pursuant to the requirements at s.424AA of the Act that information contained in the delegates decision suggests he previously testified that he first started developing feelings for the opposite sex in 2016 prompted by him meeting [Mr B] and feeling attracted to him. The Tribunal noted that this information is inconsistent with claims made in writing and orally to Tribunal that he first realised his attraction to the opposite sex when bathing in a stream with other men in late 2015 early 2016. The Tribunal advised the applicant that if it were to rely on this information it might form the view that his claims are not credible which could result in the decision under review being affirmed. The applicant opted to respond orally to the information and stated that the two accounts are different because he first felt the urge around the end of 2015 but only had sex with a man in 2016. He said the encounter with the boys in the stream was the trigger and it continued when he met [Mr B].
100. The Tribunal discussed its concern that based on his testimony he and [Mr A] had a relationship prior to his protection visa interview on 14 August 2018 and yet he failed to mention this when questioned about his sexuality. He replied that he was scared and felt ashamed at the time. He said he initially thought that his privacy should be respected and he also thought he shouldn’t expose himself too much or put himself in danger. He said he fears the Sierra Leonean community as he knows they are not involved in the gay community. When asked how he knows this he said it is because he has never encountered them online or in the clubs.
101. The Tribunal also discussed with the applicant its concern that it appears from the available evidence (Check delegates decn) he informed the delegate that he still intended to marry his Sierra Leonean girlfriend at the time of his protection visa interview. The Tribunal noted that this appears to be in direct contradiction to his latest testimony that he actively pursued his homosexual identity on arrival in Australia and clearly identified as homosexual from October/November 2017. The Tribunal also put it to the applicant that his earlier oral testimony is that he broke off the relationship with his girlfriend prior to leaving the country. The applicant responded that he told her the relationship was over after he arrived in Australia. The Tribunal disagreed and recounted his earlier evidence word by word.
102. As to telling the delegate that he still intended to marry his girlfriend he said it was a cover up. When asked to explain what he meant he said he didn’t want the delegate to perceive him as being gay. He said that at that point in time he was ashamed and scared. The Tribunal indicated that it is difficult to accept his response given he claims to have spent years advocating for gay rights and for gay people to be accepted for who they are. He replied that it was difficult for him to know who to trust.
103. The Tribunal also discussed with the applicant the late introduction of his claims to have had sex with persons other than [Mr B] in Sierra Leone. Again he stated he was scared and ashamed.
104. The Tribunal also discussed with the applicant his advice to the delegate that he was no longer even bisexual. He again stated that he was scared and ashamed.
105. The Tribunal enquired whether the applicant wished it to call a witness as previously advised. He said that his proposed witness, [Mr C], had initially agreed to be a witness but later declined. The representative indicated he had formally advised that the witness was withdrawn.
106. There was a discussion about the provision of further evidence in the form of chat messages post hearing. The Tribunal indicated that more compelling evidence would be witness testimony from a credible source. The applicant then stated that he would be willing to call his claimed former partner [Mr A] to again ask if he would be willing to give evidence to the Tribunal. The applicant called [Mr A] from the hearing room and he agreed to speak to the Tribunal. The Tribunal also asked [Mr A] if was willing to provide evidence and he stated he was willing.
107. [Mr A] stated that he met the applicant when volunteering with an organisation called [Agency 2]. He said the organisation no longer exists but its purpose was to offer friendship and assistance to persons newly arrived in Australia, including helping to get them culturally acquainted. He said he met the applicant in late 2017, they would meet up and hang out together and they also made a few day trips together. He said that they interacted in this manner over a period of about two years. The Tribunal asked the witness if there was anything more to their relationship and he replied they were just friends. The Tribunal asked if there was ever any romantic or sexual involvement between them and he denied there was. He indicated they are still friends.
108. The Tribunal also asked [Mr A] if in any of his dealings with the applicant he had spoken about the reasons why he does not want to return to Sierra Leone. He said that he did not get into specifics with him because it appeared he had gone through some traumatic experiences. He said the applicant indicated that Sierra Leone was a dangerous country and he said he couldn’t go back there. He said the applicant did not offer any other detail and he did not pursue it as he thought it could be stressful.
109. The Tribunal asked [Mr A] if he knows anything about the applicant’s family in Sierra Leone. He replied that he knows he has a family including [his children]. When asked if he spoke about the [children’s] mother at all he said not in detail but he did mention her. [Mr A] was asked if he is aware if the applicant remains in a relationship with the children’s mother and he replied that he hasn’t asked for such detail.
110. After ending the discussion with the witness the Tribunal put it to him pursuant to the requirements at s.424AA that the witness testimony appears to contradict his claim that he had a sexual relationship with [Mr A] over the course of a 3-month period. The applicant responded stated that when he initially approached [Mr A] to give evidence he declined because he has a family and didn’t want to jeopardise his personal situation.
111. The Tribunal also discussed with the applicant the claim which was introduced during the interview with the delegate in respect of him fearing members of [Organisation 1]. He stated that he continues to fear harm from these people but that there is a solution which is never to return to his hometown. The Tribunal asked whether any attempts had ever been made to forcibly return him to his home area to be initiated into [this] society and he said no. He repeated that as long as he stays away from that area he has nothing to fear. The Tribunal put it to him that it appears then that there are areas in Sierra Leone where he would not face harm from [Organisation 1] and he agreed. The applicant clarified that when interviewed by the delegate it was not his intention to make a claim for protection for this reason. He was merely making a case for why he could not try to settle in [Town 1] to avoid harm in Freetown on account of his sexuality. He confirmed that he is not advancing a claim on the basis of being forced to join [Organisation 1]. His representative indicated that he has been similarly instructed.
112. The applicant stated he does not fear returning to Sierra Leone for any other reasons.

Post-hearing submission

113. On 1 November 2023 the Tribunal received a post-hearing submission from the applicant’s representative attaching copies of chat histories between the applicant and various individuals with whom he had alleged casual hook-ups. It is noted that the photographs in the chats have been intentionally blurred.
114. Regarding the oral evidence of [Mr A] given during the hearing that he never had an intimate relationship with the applicant, it is submitted that the applicant maintains he did have an intimate relationship with [Mr A] for about 3 months and that [Mr A] was not truthful in his testimony concerning the relationship. It is submitted that [Mr A] has concealed his bisexual identity to protect his relationship with his wife and children despite knowing that the Tribunal’s hearing was confidential.

FINDINGS AND REASONS

Country of reference

115. The applicant has produced a passport issued by the Republic of Sierra Leone which verifies his claimed identity and nationality. Based on this documentation and in the absence of any information to the contrary the Tribunal accepts the applicant is a citizen of Sierra Leone.
116. The applicant initially claimed that he was bisexual and a gay rights activist in Sierra Leone. He claimed he suffered harm in Sierra Leone on account of his gay rights activism. He has since declared that he has identified as a homosexual man since his arrival in Australia and also fears harm in Sierra Leone for this reason because homosexuality is illegal and socially unacceptable.

Past Harm

117. The Tribunal has had regard to the applicant’s written claims, the evidence provided to the Department and the Tribunal and the submissions made on his behalf. Additionally the Tribunal heard oral testimony from the applicant during a lengthy hearing and has considered material provided post-hearing. Having carefully considered all the available evidence the Tribunal is not satisfied that the applicant has been truthful about his sexuality and the events which he claimed occurred in the past and which caused him to leave Sierra Leone and to seek protection in Australia. The Tribunal’s reasons for this conclusion are as follows:
118. The applicant claims he dedicated himself to his activism after his gay cousin was murdered in 2014. He claims he was the victim of intimidation, assault and threats on two occasions in 2016 in Sierra Leone for reason of his activism. He claims that the threats levelled at him on the second occasion were so serious it caused him to fear for his life and to cease his activism altogether. It also led to his decision to flee Sierra Leone. The Tribunal notes the applicant has provided a generally consistent account of the events he claimed occurred in 2016. Despite this, the Tribunal found aspects of his testimony difficult to accept.
119. Firstly, the applicant claims that he his home was invaded and he was assaulted in June 2016 and threatened to cease his activism on behalf of gay people. He said he managed to convince his attackers that he would cease his activities but he did not. In November 2016 he claims he was again aggressively confronted in his home and issued a final warning that if he did not stop his activism he would receive the same treatment as his partner [Mr B] who had gone missing and whom the attackers intimated they had killed.
120. According to the applicant, when confronted by his attackers in November 2016 they did not assault him let alone carry through with the heightened threats made in June 2016. The Tribunal notes the applicant opined during the hearing that such people generally issue two warnings before taking more serious action but relevantly it does not appear they abided by this code in metering out punishment to [Mr B]. If the applicant’s claims are to be believed [Mr B] disappeared without a trace and was likely killed by the same people without any prior confrontation, warning or chance to rectify his behaviour. The Tribunal finds it surprising therefore that in November 2016, particularly as his attackers had discovered that he had defied them and continued with his activism, they neither physically harmed him or worse when they had the opportunity to do so. The applicant was unable to provide a plausible explanation for this during the hearing and the Tribunal found his testimony in this respect unconvincing.
121. Secondly, the available evidence indicates that the applicant was issued with a [Country 1] visa in April 2017 and a service passport [earlier in] 2017 for the purpose of fleeing Sierra Leone with [a sport 1] team. During the hearing the Tribunal discussed with the applicant its concern that he then waited until September 2017 to depart Sierra Leone despite claiming his life was under threat. The applicant responded that he was advised by others in the [sport 1] team not to do anything and to just wait until it was time to depart. While he may have been reluctant to travel alone due to his inexperience, as claimed in his written statement, the Tribunal notes that he was a mature man of [age] years of age at the time and who had been living independently for many years. In the circumstances, the Tribunal considers his reluctance might have been outweighed by his claimed fears for his life. The Tribunal considers the applicant had an opportunity to depart Sierra Leone and remove himself from danger [early] [in] 2017 and that he did not casts doubt on the veracity of his claims.
122. Thirdly, despite claiming his life was under threat from the anti-gay persons who previously threatened him twice in 2016, he then organised a gay party on a public beach in August 2017. He claims that this party was interrupted by anti-gay members of the community and that he was assaulted and only saved by a passing police patrol, albeit that those police then detained him and also beat him because of his sexuality.
123. When the Tribunal indicated that his decision to organise a gay party in a public place appeared to undermine his claimed fears for his life he argued his actions made sense despite being risky. He said that he was behaving consistently so that his enemies would think he was not going to go anywhere and they could still get to him while in the meantime he was planning his escape. The Tribunal found his response illogical. In the Tribunal’s view it is one thing to remain in the area in plain sight of his attackers to avoid suspicion while organising his departure from the country but another thing to engage in provocative behaviour likely to invite serious harm from his attackers. In the Tribunal’s view the applicant has not provided a logical explanation as to why he organised a gay party in a public place when in the circumstances he ought reasonably to have been ensuring his safety.
124. The Tribunal is of the view that the applicant’s behaviour in the months following the claimed assault and serious threats made by anti-gay elements in 2016, including remaining in Freetown and publicly flaunting his sexual preference in an unsupportive and risky environment, is not what could reasonably be expected from a person whose life was under threat. The Tribunal considers his actions cast serious doubt on his claims to have been identified as a gay rights activist and/or bisexual and beaten and threatened on two occasions in 2016 and arrested and beaten by police in 2017.
125. In light of the above, the Tribunal is not prepared to accept the applicant was a gay rights activist in Sierra Leone or that he was assaulted or had threats made against his life in Sierra Leone for reason of his activism or his sexuality.

The applicant’s sexual orientation and identification as a homosexual man

126. Notwithstanding the above, the applicant claims he was bisexual in Sierra Leone and now identifies as a homosexual man.
127. The Tribunal has considered the applicant’s testimony in relation to when he first became aware he was sexually attracted to men. As noted above the Tribunal initially had concerns that the applicant had provided an inconsistent account about when and how he first realised his sexual attraction to men. On closer examination of the evidence the Tribunal does not remain of this view. However, the Tribunal nevertheless considers his testimony on this important question was vague, lacking in detail and unconvincing.
128. The applicant claims he first realised his attraction to the opposite sex when bathing naked in a stream with other men and boys in late 2015 early 2016. During the hearing he indicated he was around [age] years of age at the time. He said that prior to that moment he had no prior inclination he might be attracted to men. When asked why he thinks those feelings suddenly occurred to him when bathing in the stream he said it was because the men and boys were naked. The Tribunal suggested it might not have been the first time he had seen a naked man and he said he couldn’t remember but he knows he was sexually stimulated on that occasion. Based on the applicant’s evidence he was mingling with young men, some of whom had confided to him that they were gay and associating with other gay members of the [sport 1] team over a lengthy period of time. The Tribunal finds it surprising that it never once occurred to him prior to the occasion in the stream that he might be attracted to men. The Tribunal also does not find it convincing that the single incident described above led to the applicant’s realisation that he was sexually attracted to men.
129. Adding to the Tribunal’s concerns is his testimony in respect of his reactions on realising his attraction to men. In this regard he merely stated that he felt happy and good about it. When pushed for further detail he stated he felt a bit confused and had to ask himself if he wanted to have sex with men. When asked if he felt worried or scared given his knowledge about the situation for LGBTI people in Sierra Leone he said he wasn’t thinking about harm, only about the fact that he liked those feelings and felt good about it.
130. The Tribunal has considered the applicant’s testimony but finds it difficult to accept the ease with which he appears to have accepted his sexual orientation in a country where homosexuality is reportedly dangerous and socially unacceptable. The Tribunal found his brief references to feeling good and happy about his sexual interest in men inconsistent with his claimed knowledge of the difficulties faced by homosexual men in Sierra Leone. When pushed he made at best a brief reference to a fleeting feeling of confusion but didn’t in the Tribunal’s view provide any compelling testimony in relation to his realisation that he was gay and the way in which he navigated his feelings. The Tribunal found it odd and unconvincing that the applicant did not express any anxiety or fears about how he might be perceived by others. Nor did he express in any convincing detail the fears he had at the time regarding the potential for serious harm from the community or the authorities. The Tribunal expected the applicant could have provided more detailed and compelling oral testimony in relation to the depth and range of emotions that he felt when he realised that he was sexually attracted to men as it considers those feelings would have been difficult for him to reconcile with his understanding about the treatment of homosexual men in Sierra Leone especially given the claimed murder of his homosexual cousin in 2014.
131. Overall, the Tribunal found the nature of the applicant’s testimony in respect of the awareness of his sexuality and his lived experienced as a man who was attracted to men in Sierra Leone to be very brief, vague and unconvincing. The Tribunal considered his testimony did not seem to reflect the lived experience of a man realising and living his sexual preference in Sierra Leone. The Tribunal is not satisfied there is sufficient evidence before it to conclude that the applicant was living as a bisexual or gay man in Sierra Leone.
132. Adding to the Tribunal’s concerns about the veracity of the applicants claims in respect of his sexuality is that since the time of his application for the Protection visa he has introduced new and relevant information previously unmentioned in his written claims and/or oral evidence to the Department. For instance, the applicant claimed initially to be bisexual but omitted any mention in his written claims of having had a sexual relationship with [Mr B]. This information was only introduced during his protection visa interview with the delegate. Additionally, prior to the Tribunal hearing he claimed in a written submission that he had two other male sexual partners in Sierra Leone in 2016. Again, he made no mention of these partners either in his written evidence or during his protection visa interview. In his written submission to the Tribunal he further claimed to have entered into a sexual relationship with [Mr A] soon after his arrival in Australia. During the hearing he stated that this relationship commenced in February 2018 and lasted for three months. The Tribunal notes that based on his information the relationship had commenced well prior to his interview with the Department and again he failed to mention it.
133. When discussing the late introduction of this key evidence with the applicant during the hearing he repeatedly put it down to him feeling scared and ashamed. He said he thought his privacy should be respected and he didn’t want to place himself in danger. The Tribunal accepts that people with different cultural backgrounds and experiences can find it difficult to openly discuss matters of an intimate nature and that the prevailing circumstances in some countries can induce fear of discussing matters related to sexual preference. However, in the applicant’s case he claims to have spent years publicly advocating for recognition of the rights of gay people in Sierra Leone in the full knowledge that his actions were risky and could lead to him being seriously harmed. In the circumstances the Tribunal finds it very difficult to accept that he was unable to put forward a complete history of his claims in respect of his sexual preference due to being scared and feeling ashamed. The Tribunal acknowledges the applicant has sought to clarify that his activism was of a more informal nature and did not entail organised or coordinated efforts with other advocates. Notwithstanding this, he nevertheless claims that he attempted to influence the thinking and behaviour of young people in Sierra Leone toward gay people over a lengthy period of time. In the circumstances, the Tribunal does not accept that fear and shame accounts for the late introduction of this key evidence to support his claims for protection in Australia and the manner in which this information has come to light causes the Tribunal to doubt its veracity.
134. The Tribunal considers the applicant has also provided inconsistent evidence in respect of his former girlfriend, and mother of his children in Sierra Leone which casts further doubt on his claimed sexuality. For instance, during the interview with the Department on 14 August 2018 he indicated that he still intended to marry his girlfriend. There was no suggestion that his intention to marry her was for reasons other than wanting to continue the development of their relationship. When questioned about the status of this relationship during the Tribunal hearing the applicant first stated that he ended the relationship when he departed Sierra Leone. When questioned further by the Tribunal he confirmed that he made it clear to her on his departure from Sierra Leone that the relationship was over. He later changed his evidence and said he informed her the relationship was over after he arrived in Australia. When this occurred the Tribunal repeated his previous responses to the questions put to him and noted that it considered there was no hesitation or doubt expressed in his earlier answers. The Tribunal was not persuaded by his response and considers he changed his evidence in an attempt to overcome concerns about the consistency of his evidence in respect of his girlfriend.
135. In any event, the applicant advised the Tribunal that he has identified as a homosexual man since October or November 2017, many months prior to his Departmental interview where he claimed he still intended to marry his girlfriend. Additionally the Tribunal notes that in his written submission prior to hearing the applicant claimed that on arrival to Australia his homosexual urges increased and reference was also made to the commencement of his short-term relationship with [Mr A] soon after arriving in Australia. Again the Tribunal notes that this relationship commenced in February 2018 according to the applicant, several months prior his interview with the Department when he stated he still intended to marry his girlfriend.
136. In responding to these concerns during the hearing the applicant rather surprisingly stated that his oral testimony to the Department was a “cover up”. When asked to explain what he meant he said he didn’t want the delegate to perceive him as being gay. He said that at that point in time he was ashamed and scared. The Tribunal finds it implausible that the applicant lodged an application for protection claiming to be bisexual and a gay rights activist and proffered oral evidence of his sexual relationship with [Mr B] yet did not wish the delegate to perceive him as gay. Again the Tribunal is also not persuaded by his response given his claimed past activities advocating for the recognition of gay rights. The Tribunal remains of the view that the applicant’s evidence in respect of his girlfriend, including when he ended the relationship and his intentions for the future of the relationship, is inconsistent with his claimed homosexuality and sexual practices on arrival in Australia. The Tribunal considers this also calls into question the veracity of the applicant’s claims.
137. Notwithstanding the above the applicant maintains that he has pursued his homosexuality rigorously since his arrival in Australia. As noted he claims he had a three-month gay relationship soon after his arrival in Australia and when that ended he actively sought out gay men by attending a gay club and using a gay dating application.
138. The applicant has lived in Australia for six years and if his claims are to be believed he has been actively exploring his sexuality during this time. He claimed during the hearing that he has met a lot of gay men and has had sexual relations with many men. Despite this, the only person presented as a possible witness to his claims was [Mr A] with whom he claims he had a sexual relationship in 2018.
139. The Tribunal has considered the oral testimony provided by [Mr A] on the day of the hearing. As noted above during the hearing the witness denied ever having a sexual relationship with the applicant, claiming instead that they enjoy a platonic friendship. Admittedly the applicant submitted prior to the hearing that [Mr A] had told him he would not support him by declaring the true nature of their relationship to the Tribunal for reason of his desire to safeguard his marriage and his relationship with his children. In the circumstances the Tribunal has placed little weight on his testimony in respect of the nature of their relationship. However, the applicant and the witness met in 2017 and according to them both they remain friends. During the hearing the Tribunal asked the witness whether the applicant has revealed to him the reasons why he fears returning to Sierra Leone. He merely referred to the applicant’s references to not wanting to return to a dangerous country. Given their friendship, the Tribunal can see no reason why the witness would not have revealed knowing that the applicant was gay and afraid of returning to Sierra Leone for this reason had he known even if he was not prepared to acknowledge any sexual involvement between them. The Tribunal therefore finds it odd that in the course of a rather lengthy friendship the applicant appears never once to have mentioned to the witness, who played a significant role in helping him to adapt to life in Australia, that he fears returning to Sierra Leone because of his sexual preference. The Tribunal has placed weight on this aspect of [Mr A’s] testimony.
140. The Tribunal finds the lack of credible witness testimony, from either gay or other friends or acquaintances significant. During the hearing the applicant spoke about his fear of revealing his sexuality to members of the Sierra Leone community and the Tribunal is prepared to accept his rationale for this. However the applicant speaks English and has been living in Australia for six years and is now aware that he can express his sexuality without fear of harm. While the Tribunal does not expect the applicant to demonstrate proof of an existing gay relationship it considers that if he is gay as claimed he would have had some interaction with others in the gay community or elsewhere who he could identify and who could possibly speak on his behalf. Based on his oral testimony he also has not approached or joined any gay groups. Interestingly, he was unaware whether the organisation, [Agency 2], with whom he had a long relationship was a gay group of not. Based on the information provided by [Mr A] this group no longer exists and its charter was to help new immigrants integrate to Australian society.
141. The Tribunal acknowledges the applicant’s claimed attendance at a gay club and his use of gay dating applications. After the hearing he submitted evidence of seven chat histories in support of his claim to be homosexual. During the Tribunal hearing, prior to the submission of this evidence, the Tribunal alerted the applicant that it may not place weight on evidence of this type because it is evidence which can easily be contrived and which does not on its own provide proof of a person’s sexuality.
142. The Tribunal has carefully examined the evidence but notes that in the main it relates to conversations dated in August and September 2023, immediately prior to the Tribunal hearing. According to the applicant he began attempts to meet other men on dating applications in 2019 and the Tribunal finds the absence of evidence spanning the period between 2019 and 2023 concerning. Having examined the content of the messages the Tribunal notes they depict the exchange of emoji’s, photographs of male genitalia, descriptions of sexual acts and preferences, enquiries about the potential for the participants to get together and everyday conversation topics. While the Tribunal accepts the applicant has engaged in text conversations with men who are seeking to have sex with men it is not persuaded on this evidence that the applicant ever met up with or had sexual relations with any of the men as the evidence does not support this. The Tribunal is not satisfied that the applicant’s communication with gay men is genuine or that it supports his claim to be homosexual. Nor in the Tribunals opinion does it overcome the other concerns expressed herein.
143. The only other evidence provided by the applicant to support his claims is a medical report which indicates he contracted a sexually transmitted disease (STD) in Australia. However, as discussed with the applicant during the hearing the condition noted in the medical report is not a condition exclusive to males who have sex with males. The Tribunal has placed no weight on this evidence.
144. Having carefully considered the information before it the Tribunal finds there is very little in his evidence regarding his activities in Australia to indicate or suggest that the applicant is genuinely gay.
145. In summary, having carefully considered the applicant’s claims individually and cumulatively, and for all the reasons detailed above, the Tribunal finds that the applicant is not a homosexual or perceived to be a homosexual. It follows that the Tribunal finds there would be no need for him to hide his sexual persuasion in order to avoid persecution in Sierra Leone. The Tribunal also finds the applicant has not suffered the harm which is claimed in Sierra Leone because he is or was perceived to be bisexual, gay or a gay rights activist. The Tribunal does not accept the applicant left Sierra Leone for the reasons claimed. The Tribunal finds the applicant has fabricated his claims for protection to achieve an immigration outcome.
146. As the Tribunal does not accept the applicant’s claims it finds there is not a real chance he will suffer serious harm should he return to Sierra Leone now or in the reasonably foreseeable future. Accordingly the Tribunal finds the applicant does not have a well-founded fear of persecution in Sierra Leone for reason of his sexuality, his membership of a particular social group of homosexual men or for reason of his advocacy for gay rights in Sierra Leone.
147. The Tribunal notes that during the protection visa interview with the Department the applicant stated that he could not return to his home area in Sierra Leone because he fears harm from [Organisation 1]. He stated that he refused to be initiated into the society and will be harmed for this reason.
148. During the Tribunal hearing the applicant stated that he continues to fear harm from these people but that there is a solution which is never to return to his hometown. The Tribunal asked whether any attempts had ever been made to forcibly return him from Freetown to his home area to be initiated into the society and he said no. He repeated that as long as he stays away from that area he has nothing to fear. The Tribunal put it to him that it appears then that there are areas in Sierra Leone where he would not face harm from [Organisation 1] and he agreed. The applicant clarified that when interviewed by the delegate it was not his intention to make a claim for protection for this reason. He was merely making a case for why he could not try to settle in [Town 1] to avoid harm in Freetown on account of his sexuality. He confirmed that he is not advancing a claim on the basis of being forced to join [Organisation 1]. His representative indicated that he has been similarly instructed.
149. Based on the available evidence the applicant was residing in Freetown for twelve years prior to his departure from Sierra Leone. In light of the above findings the Tribunal does not accept the applicant would have cause or need to return to his home area to avoid being harmed for reason of his sexuality in Freetown. Nor is there any indication he desires to return to his home area given his long absence and claimed disconnection with family. If required to return to Sierra Leone the Tribunal is satisfied he would again reside in Freetown where he has not and claims he will not face any harm from members of [Organisation 1]. Given this, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Sierra Leone now or in the reasonably foreseeable future for reason of refusing to be initiated into [Organisation 1].

CONCLUDING PARAGRAPHS

150. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
151. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sierra Leone there is a real risk he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
152. 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

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

Tania Flood
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.

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36 Protection visas – criteria provided for by this Act

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(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.

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