1420061 (Refugee)

[2016] AATA 4908

1420061 (Refugee) [2016] AATA 4908 (8 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420061

COUNTRY OF REFERENCE:                  Chad

MEMBER:Chris Thwaites

DATE:8 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 December 2016 at 7:56am

CATCHWORDS
Refugee – Protection Visa – Chad – Actual or imputed political opinion – Association with anti-government party - Movement for Democracy and Justice in Chad – Where applicant claims to have undertaken low-level work for rebel group – Where applicant claims to have had previous adverse interactions with authorities – Where applicant claims to have previously been subject to imprisonment and torture – Witness credibility – Inconsistencies in evidence – Country information does not support claims – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Chad, applied for the visa on 6 August 2012.

3. On 28 November 2014 the delegate refused to grant the visa.

4. On 8 December 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provide to the Tribunal by the applicant.

6. The applicant’s initial written reasons for claiming protection are contained in his visa application forms. In summary, the applicant states that he left his country because he was afraid that he would be killed or seriously injured in Chad. He states he was jailed and tortured due to his connections to a supporter of the MDJT rebel party in Chad named [Mr A]. The applicant indicates he has experienced harm in Chad and states he has been seriously injured, shot, tortured and imprisoned because of his political opinion. The applicant states he fears he will be killed or seriously harmed if he returned. The applicant indicates he thinks the authorities and members of the government in Chad may harm/mistreat him if he returns. The applicant states he thinks this will happen because of his political opinion as a supporter of the MDJT in Chad. He has previously been tortured for this reason. The applicant indicates he does not think the authorities can and will protect him if he returns, and states the authorities cannot and will not protect him because they believe he is against the government and that he supports the MDJT opposition party in Chad. The applicant states he has previously been jailed and tortured by the authorities for this reason. The applicant also refers to an attached written statement.

7. In the attached written statement the applicant states, in summary, that he is [a particular age] and a citizen of Chad. He was born in North Chad, in [a particular location]. His father is deceased and his mother and [siblings] live in Chad. He has had no formal education and no education apart from Koran studies between the ages 6 to 11. As a child he worked selling [goods] to help support his family. He then worked [in a particular occupation] and then [Occupation 1]. He is married with [a number of children]. His wife and children are in [Country 1] which is where he lived before coming to Australia. He moved to [Country 1] from Chad in September 2004. He married in [Country 1] and his [children] were born there. He has no legal rights to reside in [Country 1] and he cannot return to Chad because he fears he will be killed or seriously harmed if he does so.

8. The applicant states the problem started for him in Chad when he was offered a position of employment in the capital city by a man named [Mr A]. This was in 1998. This man was [a businessman] and had previously been a military officer under the former president Hasan Hardi. The applicant worked for this man until 2004. His job was [Occupation 1]. The applicant lived in [Mr A]’s home in a special place for his employees. Over the many years he worked him, [Mr A] grew to trust the applicant very much. [Mr A]’s wife was from a powerful political family which included [senior public officials]. [Mr A] and his family were supporters of the opposition party in Chad, known as the MDJT.

9. The applicant states the MDJT is a rebel group that tries to oust the government of the current president. [Mr A]’s wife had a family member who [has held various senior public positions]. The applicant would drive her to meet this man’s wife and other political people, including [a particular senior public official]. [Mr A] and his family had many important connections both with the government and opposition.

10. The applicant states [Mr A] used to ask the applicant to undertake various errands for him. One of his regular tasks was to drop off goods to a [Mr B]. [Mr B] used to work for the government but had left and was now supporting the opposition. [Mr B] lived [a particular distance] from [Mr A]’s home. [Mr A] asked the applicant to transport goods to [Mr B] such as [various good and materials]. The applicant had previously made [a number of] visits to [Mr B] to drop off goods.

11. In August 2003 the applicant was asked to deliver some [particular goods] to [Mr B]. [Mr A] had obtained these from [another country]. The applicant undertook this task and upon his return to [Mr A]’s house he saw that [Mr A]’s [relative] (who was [a senior public official]) was there. He told the applicant that members of the intelligence had discovered the equipment the applicant had taken to [Mr B] and that [Mr A] was under arrest. The applicant was told to run away as his life was at risk.

12. The applicant states he was terrified and went to a former employer for help. He is [an individual] named [name removed]. The applicant told him what had happened and he let the applicant stay with him in hiding temporarily. He was scared that having the applicant there would put his life in danger and asked the applicant to leave after about a month.

13. The applicant states he then went to a home of a contact of [Mr A]’s named [Mr C]. He spoke to his son and was advised that [Mr A] was still in prison. While there, intelligence officers came and arrested the applicant. He was taken to prison for a month and was tortured badly.

14. The applicant states he was asked what he was delivering to [Mr B] and why. He was asked which other people meet with [Mr A], how he supports the opposition, and other questions. The applicant states that at first he did not know anything. He was beaten and subjected to [torture]. The applicant states prison officers mainly tortured him [at a particular time of day], sometimes every day, sometimes every few days, and the applicant heard them say so many times to each other to just kill him.

15. The applicant states that in prison he saw [a number of] other employees of [Mr A]’s who were also inmates. He was told that they had said the applicant was [Mr A]’s main associate and confidant as the applicant spoke the same tribal dialect as him (and that they were less involved with [Mr A] because they did not speak the same dialect). The applicant was targeted by the prison officers because of this and he genuinely believed he would die. He could not stand the torture and confessed to what was being asked of him-he was not even sure what he signed in the confession as the document was in French and he did not understand it.

16. The applicant states he managed to get out of prison shortly after his confession. He had been [severely injured] and left in his cell for [a number of] days without medical aid. He was only taken to hospital when his [injuries became worse] and one of the guards felt pity for him. This was after one month in prison. In prison the applicant was not provided with enough food and water and he was in a great deal of pain. One of [Mr A]’s relatives came to see him in hospital and assisted the applicant to escape. The applicant was taken to [another country] as [Mr A]’s family wanted him to stay out of Chad. The relative obtained the applicant’s passport for him and helped him to get a visa to [Country 1].

17. The applicant states he does not have the right to live in [Country 1]. When he arrived in that country his passport was taken by the authorities. He arrived in [Country 1] 2004 and stayed unlawfully ever since that time. In 2009 he found out that his name was on a list of wanted persons published by the Chad embassy. The applicant was desperate and fearful for his safety. He states he cannot return to Chad because he has a well-founded fear that he will be killed based on his political opinion and association with [Mr A]. The applicant states the authorities cannot and will not protect him and this is why he left [Country 1] and travelled to Australia in the manner that he did. The applicant states he is seeking protection from Australia as a refugee.

18. The applicant’s then representative provided a written submission to the Department dated 1 August 2012 summarising the applicant’s claims and referring to a number of country information reports on Chad, and submitting that the applicant had a well-founded fear of persecution and also satisfied the criteria for complementary protection.

19. As noted above, on 28 November 2014 the delegate refused to grant the applicant a protection visa. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that at his interview the applicant told the delegate that he never disclosed his real identity while he was living in [Country 1]. He stated that he did not associate with Chadain people in [Country 1], as he was afraid that his identity may be found out and revealed to the Chadian authorities. The applicant claimed that towards the end of 2009 he overheard a conversation at [a particular location] in which Chadian nationals congregated, that someone fitting his description was wanted by the Chadian authorities. At the interview the applicant claimed that these people were saying that someone named [the applicant’s name] was wanted in Chad. However, as the applicant did not go by that name in [Country 1], these people did not realise that it was the applicant they were discussing.

20. The delegate found the claim that the applicant randomly overheard a discussion between people in [Country 1] which made mention of the applicant being wanted in Chad, approximately six years after he had last lived in Chad, to be implausible. While the delegate accepted that there is a significant Chadian community in [Country 1], the delegate found the circumstances of the applicant’s claim, specifically the amount of time that had passed since the applicant lived in Chad and the location of the discussion being overheard in a random location outside of Chad itself, caused the delegate to have serious doubts about the authenticity of the claim. Therefore the delegate was not satisfied that the applicant overheard a discussion of this nature in 2009 in [Country 1] and found instead that he had fabricated this aspect of his statement in order to strengthen his claims from protection.

21. The delegate also considered the period of time, over 11 years, that had passed since he had lived in Chad was also significant. While the delegate accepted the applicant was involved in political activity, albeit at a low level as [Occupation 1], the delegate was satisfied that the country information indicates that the current political climate in Chad has significantly improved. The delegate was also satisfied that the country information indicated that the political group the applicant was working for no longer has a substantial presence in Chad. Therefore the delegate was not satisfied the applicant would be of interest to the Chadian authorities if he returned to the country. Therefore the delegate did not find the applicant had a real chance of being persecuted for a Refugees Convention reason, and therefore found the applicant’s fear of persecution was not well-founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not satisfy the requirements under s.36(2)(a) of the Act. The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that the applicant will be subjected to significant harm. Therefore the delegate found the applicant did not satisfy the criterion in s.36(2)(aa). The delegate therefore refused to grant the applicant a protection visa.

22. As noted above, on 8 December 2014, the applicant applied to the Tribunal for review of that decision.

23. The applicant provided the Tribunal with a statutory declaration dated 29 July 2016. In summary the applicant declares that he continues to rely on the information he has previously provided in support of his application, and in addition has some further information in support of his claims.

24. The applicant declares that he does not understand how his protection claims have been refused and states he has provided information about how he has been seriously harmed in Chad because of his involvement with the political party, and has explained that he feared if he was forced to return to Chad he would be further harmed. The applicant notes it was accepted by the delegate that he had been active with the political party, but the delegate took the view that some time had passed since the events and this is the reason why he was refused. The applicant does not agree with this assessment as he is known as someone who opposes the government and has been harmed for this reason previously. The applicant states that if he returned to Chad now he will still be at risk of harm and he fears he will be subjected to physical assaults, imprisonment, torture and even death.

25. The applicant declares he has previously been forced to provide a signed paper and his fingerprints to the authorities in Chad and they still have this document on the records. The applicant states the document he signed was in French and he did not understand the language but was forced to sign it and to provide his fingerprints. The applicant states that at the time he was refused by the delegate it was assessed that the political situation has improved in Chad. The applicant disagrees with this assessment and states the political and human rights situation in Chad has not improved in recent years and has gotten worse in many ways.

26. The applicant declares that the political party which was in power when he fled Chad is still in power, and they are well-known from not respecting human rights and for seeking to harm their political opponents.

27. The applicant declares that the MDJT political party he was associated with has transformed themselves through an alliance with other political parties, and has been renamed FACT. The political party FACT is currently active in Chad and continues to oppose the current regime.

28. The applicant declares that some of his former colleagues from MDJT fled to [Country 2] and have been accepted as refugees there. One person the applicant knew in Chad has protection in [Country 2] and is currently politically active and involved in the Union of Forces for Democracy and Development (UFDD). The UFDD is a smaller part of the political party FACT and they oppose the current regime.

29. The applicant declares he also knows some other political activists from Chad who have been granted protection in [Country 2]. He also has connections with political activists in [another country].

30. The applicant declares he has read of people who have returned to Chad after spending some time in Western countries, especially in Europe and Australia, and they have either disappeared on their return or have been imprisoned, and the applicant fears this would also happen to him if he was forced to return to Chad.

31. The applicant declares that in addition to the activities of the current government, in recent years the Islamic extremists Boko Haram have become politically active in Chad. This group has been responsible for numerous attacks on the population. The applicant has learnt that his [relative] was a victim of a Boko Haram attack which took place in the capital N’Djamena in [2015].

32. The applicant states that he is a member of [a certain] tribe and this tribe is discriminated against in Chad. The applicant states this tribe is seen as poor and weak and no one from the tribe works for the government.

33. The applicant declares he believes he is still at risk of serious harm, including physical assaults, imprisonment and torture if he is forced to return to Chad. He has previously been imprisoned and tortured and the authorities will still view him as someone who opposes the government and will seek to harm him for that reason.

34. The applicant appeared before the Tribunal on 26 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his current registered migration agent who attended the hearing.

35. During the hearing the applicant told the Tribunal he has received seven months of psychological treatment to manage his pain and was seeing a psychiatrist for seven months while in detention in Australia but no longer has a case manager and no longer sees anyone and is not on medication.

36. At the conclusion of the hearing the Tribunal granted the applicant four weeks’ time in which to provide any further material in support of his application including any further written submissions as well as any medical report or psychological report relating to the applicant’s situation and injuries.  

37. On 22 September 2016 the representative provided a written submission to the Tribunal summarising the applicant’s claims and addressing the findings of the delegate and referring to country information and addressing well-founded fear and relocation and state protection and the complementary protection criterion.

    RELEVANT LAW

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

    Refugee criterion

39. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

40. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

1. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

2. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

3. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

4. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

5. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

6. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

7. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

8. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

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 a protection 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 the applicant 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’).

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

11. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    FINDINGS AND REASONS

    Nationality

13. The delegate’s decision record indicates the applicant arrived in Australia as an undocumented air arrival at [a particular location] [in] July 2012. At that time the applicant claimed he had travelled to Australia as an impostor on a genuine [Country 1] passport that he had bought in [Country 1]. Upon arrival at [the] airport the applicant claimed that he disposed of the passport during the flight and sought to engage Australia’s protection obligations. The delegate’s decision record notes the applicant has provided several identity documents including a copy of Chadian identity card under the name of [the applicant], a copy of the [Country 1] passport which the applicant used to travel to Australia, a copy of the [Country 1] residence permit, and a copy of the applicant’s wife [Country 1] residence permit. The Tribunal notes the applicant explained that shortly after he arrived in [Country 1] he bought a new identity document and began using a different name and that a friend took his Chadian passport to the embassy in [Country 1] in 2010 to be renewed where it was confiscated by embassy officials. His friend was told the applicant was wanted in Chad.

14. On the basis of the identity information provided to the Department the Tribunal finds that the applicant is a national of Chad. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Chad. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Chad, the Tribunal also finds that Chad is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

15. During the hearing the Tribunal spoke the applicant about his background, family composition, education and employment history as well as his travel history, and why he left Chad and his fears of returning. During the hearing the Tribunal raised its concerns about the applicant’s credibility and differences between the applicant’s oral evidence and his written statements and the plausibility of some of his claims.

16. During the hearing the applicant told the Tribunal that on his return to [Mr A]’s house after making the delivery to [Mr B] he was met by [Mr A]’s [relative], [a senior public official], and that he told the applicant that [Mr A] had escaped and the applicant should do so as well. The Tribunal raised its concerns that the applicant’s oral evidence was different to the information in his written statement provided to the Department, which states [the senior public official] told the applicant that members of the intelligence had discovered the equipment the applicant had taken to [Mr B] and that [Mr A] was under arrest.

17. In response the applicant told the Tribunal that when he was first interviewed in detention he said [Mr A] was not arrested, because if [Mr A] was arrested why would they come after the applicant.

18. The Tribunal also noted the applicant’s written statement indicates the applicant then went into hiding at a former employer’s home for a month and then went to the home of a contact of [Mr A]’s named [Mr C] and met his son [Mr D] and was advised that [Mr A] was still in prison.

19. In response the applicant told the Tribunal when he came to [Mr D]’s house he asked about [Mr A] and what had happened to him, because if [Mr A] had been captured they would not be after the applicant, because all they were interested in was to get more information about [Mr A]’s transactions and operations.

20. The Tribunal notes the applicant’s response does not accord with his written statement which indicates [Mr A] was in prison and the applicant was also then arrested.

21. The Tribunal notes that at the beginning of the hearing it had asked the applicant if he had assistance completing his visa application forms and his written statement, and the applicant had told the Tribunal his lawyer had written the documents and had used an interpreter. The applicant told the Tribunal he verbally made the statement and the lawyer put it in writing. The applicant told the Tribunal all the information in the documents was true and correct and he did not wish to add or change anything to that information. 

22. The Tribunal is not persuaded the applicant’s response explains the difference between his oral evidence and his written statement. The Tribunal considers the applicant has provided significantly different information in relation to whether his employer ([Mr A]) had been arrested at the time the applicant returned from the delivery, and at the time the applicant was arrested. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

23. During the hearing the applicant told the Tribunal that while he was at [Mr D]’s home the Chad police raided the house and grabbed the applicant and beat him and he was then taken to prison. The applicant told the Tribunal they did not take anyone else.

24. When questioned why the applicant was the only one taken the applicant told the Tribunal they had been tipped off that he was the main person who assisted [Mr A]. The applicant had also told the Tribunal the house was well known to the government and was under surveillance.   

25. The Tribunal raised its concerns about the plausibility of the claim that the applicant was at [Mr D]’s home and suddenly the police raided and the applicant was the only person taken away.

26. In response the applicant told the Tribunal that the place was located on [a particular street number], and [Mr D] and his relatives were not wanted, and because [Mr C] ([Mr D]’s father) had run for [a particular public office] before, he was known and that they were not wanted. The Tribunal raised its concerns about why the property was raided given they were not wanted. In response the applicant told the Tribunal [Mr C]’s wife’s family and [Mr C] is one family and that they were after everyone who were associated with [Mr A], or anyone who had connections with [Mr A], not just the applicant.

27. The Tribunal notes the applicant stated in his written statement that he went to the house of a contact of [Mr A]’s named [Mr C]. The Tribunal is not persuaded the applicant’s response explains why the applicant was the only person taken during the raid, if as the applicant stated, they were after everyone who was associated with and or had connections with [Mr A].

28. The Tribunal is also concerned about the plausibility of the claim that the applicant would visit a home that he knew was under surveillance by the government while he was trying to hide from the authorities.

29. The Tribunal considers the applicant’s claim to have been at the house of a contact of [Mr A]’s when the police raided, and that the applicant was the only person taken away, to be implausible in the circumstances described by the applicant. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

30. During the hearing the applicant told the Tribunal that he was transferred from prison to hospital where he stayed [for] about a month before [Mr A]’s [relative] helped him escape from the hospital. On questioning how the applicant escaped, the applicant told the Tribunal the guards at the hospital were not army guards they were just hospital guards. When questioned if the applicant was under guard by the guards from the prison, the applicant told the Tribunal there were police officers in the hospital and they would take turns in guarding him and his room, and when he started to recover they went back and then there were just other police around at the hospital. The applicant told the Tribunal he is certain they were bribed.

31. The Tribunal raised its concerns about the plausibility of the claim that the police officers guarding the applicant’s room would leave when he started to recover and that he was then able to escape with the help of [Mr A]’s [relative], if the applicant was of adverse interest to the authorities. 

32. In response applicant told the Tribunal that [Mr A]’s [relative] orchestrated the escape.

33. The Tribunal is not persuaded by the applicant’s response. In the circumstances described by the applicant, including that the authorities were after everyone who was associated with or had connections with [Mr A], and that the applicant was considered the main person who assisted [Mr A], the Tribunal does not accept as plausible the claim that [Mr A]’s [relative] would be able to bribe the guards/police officers and orchestrate the applicant’s escape. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

34. During the hearing the applicant told the Tribunal that in 2010 or 2011 he was at a [location] in Chad and overheard a conversation that he was wanted in Chad. On questioning, the applicant told the Tribunal the conversation was amongst young people [undertaking a particular activity]. They were talking amongst themselves about who was wanted and who was not, and the applicant heard them say his name. They didn’t say this to him personally but were talking amongst themselves. They didn’t know the name related to the applicant.

35. The Tribunal raised its concerns about the plausibility of the claim that the applicant would overhear a conversation, six years after he left Chad, where his name was mentioned as a person that was wanted in Chad.

36. In response the applicant told the Tribunal that it was a big issue at the time, and that [Country 1 officials] were considering extraditing Chadian citizens to Chad.

37. The Tribunal is not persuaded by the applicant’s response. The Tribunal considers the applicant’s claim to have overheard a conversation in [Country 1], six or seven years after he left Chad, where his name was mentioned as a person that was wanted in Chad, to be implausible. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

38. During the hearing the Tribunal also noted country information which indicated that there was a peace agreement between the MDJT and the government in Chad in 2005, and 2011[1], which did not support the applicant’s claims that he would continue to be of interest to the authorities in Chad.  

    [1] Chad: Situation of members of the Movement for Democracy and Justice in Chad (MDJT)( and of the people close to the late Youssouf Togoime (family, friends, bodyguards), including their treatment by the government authorities; the December 2003 peace accord signed by the government and the MDJT and its implementation by both parties (subtended 2002-August 2005)-immigration and refugee board of Canada; CX264712 Amnesty International annual report Chad 2011.

39. In response the applicant told the Tribunal the agreements were with the heads of the MDJT which then merged into smaller groups and the UFDD is now active in north Chad and is part of FACT.

40. The Tribunal noted the applicant had told the Tribunal he has no interest in politics and was only connected to it through his employment with [Mr A], which was over 10 years ago, and the Tribunal raised its concerns about the plausibility of the claim that the applicant was still of adverse interest to the authorities in Chad.

41. In response the applicant told the Tribunal he was not wanted by these groups, but was wanted because he had signed the papers and documents and his return would stir up lots of fear for him and [Mr A]’s family. The applicant confirmed the documents he signed were in French and he did not know what he signed but he thinks the documents were confessions. In relation to [Mr A]’s family the applicant told the Tribunal he doesn’t know what exactly happen to them and they worry and are restless and he doesn’t know what can happen.

42. The Tribunal has considered the country information referred to in the delegate’s decision record and in the representative’s written submissions including the Freedom House 2015 report on Chad, the United States Department of State 2015 Country Report on Human Rights Practices-Chad, and the Amnesty International recent report on the activities of Boko Haram.

43. While the Tribunal accepts the country information indicates concerns in relation to the lack of rule of law in Chad and current widespread abuses by the Chadian security forces, the Tribunal does not accept the country information supports the applicant’s claims that he would be of ongoing adverse interest due to his previous employment and activities with [Mr A]. 

44. While the Tribunal notes the applicant has been generally consistent in his claims throughout the application process, the Tribunal notes when questioned in detail about the circumstances leading to his arrest the applicant’s oral evidence was different to his written statement. The Tribunal has also taken into account the representative’s written and oral submissions and the reference to the 2013 European Court of Human Rights decision in Mo. M v France, and notes for the reasons set out below it does not accept the applicant’s circumstances are similar to the applicant in that case. The Tribunal has also taken into consideration the effects the passage of time has on a person’s ability to recall detail.  The Tribunal also notes the applicant’s oral evidence that he saw a psychiatrist for seven months while in detention in Australia.  The Tribunal notes the applicant has not provided any medical evidence to indicate the applicant has an ongoing mental health condition that would affect his recall or his ability to provide evidence consistently, despite being granted time in which to do so. The Tribunal does not accept the applicant’s mental health condition or the passage of time explains the differences between the applicant’s oral evidence and his written statement or resolves the plausibility concerns raised with the applicant during the hearing.  For the reasons discussed above, the Tribunal finds the applicant is not a witness of truth, and the Tribunal is not satisfied the applicant has told the truth in relation to critical aspects of his claims.

    Refugee criterion: s.36(2)(a)

45. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

1. For the reasons noted above the Tribunal finds the applicant is not a witness of truth, and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims.

2. Given the credibility concerns raised above, the Tribunal does not accept the applicant was employed by, or associated with, a person in Chad who was an active member of the MDJT and who was, or became, of adverse interest to the authorities, as claimed. The Tribunal does not accept the applicant made deliveries to opposition party members and the Tribunal does not accept the applicant was of adverse interest to the authorities in Chad as claimed. The Tribunal does not accept the applicant came back from a delivery and was advised that his employer had been arrested or had escaped, and the Tribunal does not accept the applicant then went into hiding. The Tribunal does not accept the applicant went to the home of a contact of his employer and was arrested and held in prison and beaten and tortured and [seriously injured] made to sign a document or documents and provide his fingerprints. The Tribunal does not accept the applicant escaped from hospital as claimed. The Tribunal does not accept the applicant fled Chad for the reasons he has claimed and the Tribunal does not accept the applicant was of adverse interest to the intelligence agency or any other security agency or to authorities or members of the government of Chad at the time he left Chad, and the Tribunal does not accept the applicant has become of adverse interest to anyone since that time. The Tribunal does not accept a friend of the applicant’s was advised that the applicant was wanted in Chad by staff at the embassy in [Country 1], or that a list of wanted persons was published by the Chad embassy, or that the applicant overheard a conversation in 2010 or 2011 that the applicant was wanted in Chad.

3. During the hearing the Tribunal asked the applicant if he was politically active or connected to any political group in Chad apart from working for [Mr A]. In response the applicant told the Tribunal he did not know anything about politics and had never been in politics before, although he enjoyed his [work] and working with influential people, but that he did not know anything about politics. On questioning if the applicant has been involved in any political activity since leaving Chad the applicant told the Tribunal he is not a political ambitious person and has never thought about politics or economics and has just tried to make his own living since he was young. The Tribunal does not accept the applicant is interested in politics and it does not accept he has former colleagues from the MDJT or remains in contact with anyone on the basis of a shared political interests or interest in politics. 

4. The Tribunal does not accept the applicant would be perceived to have or imputed with a political opinion due to his previous employment in Chad. The Tribunal does not accept the applicant has a political opinion or is politically opposed to the current Chad government. The Tribunal does not accept the applicant would undertake any political activity if he returned to Chad.

5. The Tribunal does not accept there is a real chance the applicant will be harmed or mistreated or assaulted or detained or arrested or tortured or suffer psychological distress or be executed or killed by the authorities in Chad due to his real or imputed political opinion, if he returned to Chad now or in the foreseeable future.

6. The Tribunal does not accept there is a real chance the applicant will suffer serious harm due to his real or imputed political opinion (which the Tribunal does not accept the applicant has or will be imputed with) if he returned to Chad now or in the reasonably foreseeable future.

7. The Tribunal does not accept there is a real chance the applicant will suffer serious harm on account of his real and or imputed political opinion if he returned to Chad now or in the reasonably foreseeable future. The Tribunal does not accept the applicant was involved with the MDJT or worked for someone associated with them as claimed, or any anti-government political party. The Tribunal does not accept there is a real chance the applicant will suffer serious harm on account of his real and or imputed political opinion, his involvement with the MDJT (which the Tribunal does not accept), and/or his status as someone who is known to have worked for and/or have been associated with an anti-government political party (which the Tribunal does not accept the applicant did or was).

8. The Tribunal does not accept the authorities in Chad had or have any adverse interest in the applicant because he signed some documents and was fingerprinted while he was being detained, noting the Tribunal does not accept the applicant was detained as claimed and it does not accept the applicant signed some documents and was fingerprinted as claimed. The Tribunal does not accept there is a real chance the applicant will suffer serious harm for this reason if he returned to Chad now or in the reasonably foreseeable future.

9. During the hearing the applicant also told the Tribunal he knows there are court sentences against him in Chad which makes him fear returning to Chad. On questioning the applicant told the Tribunal it is associated with the period of imprisonment and he thinks is it most likely his is wanted in Chad. When asked if the applicant is aware of any court sentences made against him the applicant told the Tribunal he wished he knew but he did not know.

10. Given the findings made above, the Tribunal does not accept there are any court sentences against the applicant in Chad. The Tribunal does not accept there is a real chance the applicant will suffer serious harm for this reason if he was to return to Chad now in the reasonably foreseeable future.

11. During the hearing the applicant also told the Tribunal he fears returning to Chad because of racism, and that he comes from a weak tribe which is not influential and is persecuted by the Chadian regime.  On questioning the applicant told the Tribunal he did not experience any harm while in Chad because he is a member of his tribe.

12. The Tribunal notes that country information indicates the laws in Chad prohibit the government from discriminating on the basis of ethnicity, but ethnicity influences government appointments and political alliances. Political parties and groups generally had identifiable original or ethnic bases. Northerners, particularly members of the Zaghawa ethic group including the Bideyat subclan to which the president belongs, are overrepresented in key institutions, including the military officer corps, elite military units, and the presidential staff[2]. Nevertheless the Tribunal is not aware of any country information to suggest members of specific tribes in Chad are targeted for persecution and the applicant has not provided any information to support this claim. Given the applicant’s oral evidence that he has not experienced any harm in Chad due to his membership of his tribe, and was able to find employment and subsist, the Tribunal does not accept there is a real chance the applicant will suffer serious harm because of racism or due to being a member of his tribe, if he returned to Chad now or in the reasonably foreseeable future.

    [2] United States Department of State, Country Report on Human Rights Practices for 2015 -Chad

13. During the hearing the Tribunal also noted that in his statutory declaration dated 29 July 2016 the applicant also stated that he had read about people who have returned to Chad after spending time in Western countries, and have either disappeared or had been imprisoned, and that he declared he feared this would happen to him if forced to return. In response the applicant told the Tribunal he read this on facebook.

14. The Tribunal is not aware of any country information to support the claim that returnees who had spent time in Western countries, or failed asylum seekers who had spent time in Western countries, were targeted and disappeared or imprisoned or suffered serious harm on return to Chad. On the evidence before it the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm if he returns to Chad now or in the reasonably foreseeable future because he has spent time in a Western country, or because he is a failed asylum seeker who spent time in a Western country.

100.   During the hearing the Tribunal also spoke to the applicant about his fears of being harmed by Boko Haram. The Tribunal noted the applicant had declared his [relative] was killed by Boko Haram and on questioning the applicant told the Tribunal Boko Haram is targeting all people and while they do not know the applicant, they are targeting everyone.

101.   The Tribunal notes the country information indicates Boko Haram does operate in Chad and has stepped up attacks in the capital. Boko Haram killed more than 200 civilians during the year and looted and destroyed properties and public facilities[3]. While the Tribunal has significant concerns about the applicant’s credibility, in light of the country information the Tribunal is prepared to accept the applicant’s [relative] was killed by Boko Haram. The Tribunal notes the applicant’s oral evidence when questioned if Boko Haram would target the applicant specifically, the applicant told the Tribunal they are targeting everyone.

[3] Amnesty International Report 2015/16

102. While the Tribunal accepts Boko Haram attacks have increased in Chad, on the information before it, the Tribunal does not accept the applicant would be specifically targeted by Boko Haram and the Tribunal does not accept the attacks from Boko Haram are aimed at the applicant specifically or involve systemic and discriminatory conduct as required by s.91R(1)(c).

103.   On the evidence before it, the Tribunal is not satisfied there is a real chance the applicant will suffer persecution for any of the reasons he has claimed, or for any other reason, if he returned to Chad now or in the reasonably foreseeable future.

104.   The Tribunal finds that the applicant does not have a well-founded fear of persecution.

105. Having considered the claims individually and cumulatively, 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).

Complementary protection criterion: s.36(2)(aa)

106. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criteria for the grant of a protection visa pursuant to the complementary protection criteria.

107.   For the reasons given above, the Tribunal finds the applicant is not a witness of truth and the Tribunal is not satisfied the applicant has told the truth in relation to critical aspects of his claims.  The Tribunal does not accept the applicant was employed by, or associated with, a person in Chad who was an active member of the MDJT and who was or became of adverse interest to the authorities, as claimed. The Tribunal does not accept the applicant was of adverse interest to the authorities in Chad as claimed. The Tribunal does not accept the applicant came back from a delivery and was advised his employer had been arrested or had escaped, and the Tribunal does not accept the applicant then went into hiding. The Tribunal does not accept the applicant went to the home of a contact of his employer and was arrested and held in prison and beaten and tortured and [seriously injured] and made to sign a document or documents and provide his fingerprints. The Tribunal does not accept the applicant escaped from hospital as claimed. The Tribunal does not accept the applicant fled Chad for the reasons he has claimed and the Tribunal does not accept the applicant was of adverse interest to the intelligence agency or any other security agency or to the government of Chad at the time he left Chad, and the Tribunal does not accept the applicant has become of adverse interest to anyone since that time. The Tribunal does not accept a friend of the applicant’s was advised that the applicant was wanted in Chad by staff at the embassy in [Country 1], or that a list of wanted persons was published by the Chad embassy, or that the applicant overheard a conversation in 2010 or 2011 that the applicant was wanted in Chad.

108.   For the reasons given above, the Tribunal does not accept the applicant would be perceived to have or imputed with a political opinion due to his previous employment in Chad. The Tribunal does not accept the applicant has a political opinion or is politically opposed to the current Chad government. The Tribunal does not accept the applicant would undertake any political activity if returned to Chad.

109.   The Tribunal does not accept there is a real risk the applicant will suffer significant harm due to his political opinion (which the Tribunal does not accept the applicant has) if returned to Chad.

110.   The Tribunal does not accept there is a real risk the applicant will suffer significant harm on account of his real and or imputed political opinion. The Tribunal does not accept the applicant was involved with the MDJT or worked for someone associated with them as claimed, or any anti-government political party. The Tribunal does not accept there is a real risk the applicant will suffer significant harm on account of his real and or imputed political opinion, his involvement with the MDJT (which the Tribunal does not accept), and/or his status as someone who is known to have worked for and/or have been associated with an anti-government political party (which the Tribunal does not accept the applicant did or was).

111.   The Tribunal does not accept the authorities in Chad had nor have an adverse interest in the applicant because he signed some documents and was fingerprinted while he was being detained, noting the Tribunal does not accept the applicant was detained as claimed and it does not accept the applicant signed some documents and was fingerprinted as claimed. The Tribunal does not accept there is a real risk the applicant will suffer significant harm for this reason if he was returned to Chad.

112.   Given the findings made above, the Tribunal does not accept there are any court sentences against the applicant in Chad. The Tribunal does not accept there is a real risk the applicant will suffer significant harm for this reason if he was returned to Chad.

113.   For the reasons given above the Tribunal does not accept there is a real risk the applicant will suffer significant harm due to racism of for being a member of his tribe, if returned to Chad.

114.   On the evidence before it the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if he is returned to Chad because he has spent time in a Western country, or because he is a failed asylum seeker who spent time in a Western country.

115. While the Tribunal accepts Boko Haram attacks have increased in Chad, on the information before it, the Tribunal does not accept Boko Haram will specifically target the applicant and the Tribunal considers the risk of harm from Boko Haram is one faced by the population of the country generally and is not faced by the applicant personally. Therefore, in accordance with s.36(2B)(c) the risk is taken not to be a real risk that the applicant will suffer significant harm in Chad.

116.   On the evidence before it, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm for any of the reasons he has claimed, or for any other reason, if he is returned to Chad.

117.   Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment, if he is returned to Chad.

118. 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 Chad, there is a real risk that the applicant will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

CONCLUSION

119. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

120. 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

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

Chris Thwaites
Member  8 December 2016