1503024 (Refugee)

[2019] AATA 2487

1503024 (Refugee) [2019] AATA 2487 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503024

COUNTRY OF REFERENCE:                  Algeria

MEMBER:Louise Nicholls

DATE:7 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 February 2019 at 1:40pm

CATCHWORDS

REFUGEE – protection visa – Algeria – social group – homosexual – victimised for sexual orientation– lack of relationship details – religion – non-practicing Muslim – no real risk of significant harm – credibility – false declarations – invalid s438 certificate –mental health issue – drug and alcohol abuse – domestic violence abuse –  decision under review affirmed

LEGISLATION

Migration Act 1958, ss, 5H, 5J, 5K-LA, 36, 65, 438

Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims to be a citizen of Algeria and is [age] years old. He claims he was born in Mascara, Algeria. On [date] May 2011 he arrived in Australia travelling on a French passport in the name of [Applicant’s Alias 1] with an electronic travel authority for Australia.

2. On 5 December 2012 the applicant made an application for a protection visa in the name of

   
   

   [Applicant’s real name], an Algerian citizen, born in [date].

3. He provided a number of documents with his application, including:

   ·     A photocopy of an Algerian passport in the claimed applicant’s name issued on [date] 2008.

   ·     Statutory declaration made by the applicant on 11 January 2013.

   ·     Statutory declaration made by the applicant on 27 November 2014.

   ·     Medical report prepared by [Dr A], consultant psychiatrist, dated 1 December 2014.

4. The applicant attended an interview at the Department of Immigration on 2 December 2014.

5. Following that interview the applicant’s representative provided written submissions dated 17 December 2014 which addressed matters discussed in the interview, matters of fact and law as well as relevant country information.

6. On 24 February 2015 the delegate of the Minister for Immigration and Border Protection refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.

7. This is an application for review of that decision and it was made on 2 March 2015.

8. The applicant provided a photocopy of the letter notifying the applicant of the refusal of his protection visa application dated 24 February 2015 and a copy of the Visa Application Summary. He did not provide a copy of the delegate’s decision record.

9. The applicant attended two Tribunal hearings; the first on 16 March 2018 and the second on 10 December 2018.

10. The applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments. The first Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The hearing held on 10 December 2018 was conducted with the assistance of an interpreter of the French and English languages.

11. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearings. On 13 March 2018 the applicant’s representative provided written submissions and following the hearing held in December 2018 provided further written submissions dated 11 January 2019.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION

13. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.

14. The relevant law is set out in Attachment A.

    What are the applicant’s claims?

15. The applicant’s claims are set out in the application for protection lodged on 5 December 2012. The applicant also provided the Department with two statutory declarations which addressed the manner of his arrival in Australia and his claims for protection.

16. The claims for protection were further discussed with the delegate on 2 December 2014. On 17 December 2014 the applicant’s representative made written submissions on the applicant’s claims, the matters which were raised by the delegate at the interview and a discussion of relevant country information.

17. On 13 March 2018 further submissions were made to the Tribunal on the applicant’s claims.

18. The applicant gave oral evidence concerning his claims at the Tribunal hearings held respectively on 16 March and 10 December 2018. Following the hearing the applicant’s representative made further submissions on the applicant’s claims and on the evidence he gave at the hearing.

19. Essentially the applicant claims if he returns to Algeria he faces serious harm from family members, the community and state authorities because he is a homosexual and also because he has given up the practice of Islam. He claims his father will harm him, that he will be isolated from the community and that state authorities will either mistreat him or will not protect him from harm from non-state actors, including family members. The applicant’s representative also claims that the applicant suffers from mental illness and this increases his vulnerability.

    Non-disclosure certificates

20. A preliminary issue for consideration concerns the issue of the certificates restricting disclosure of certain information in Departmental files.

21. The Tribunal has received two Departmental files: [DIBP File 1] and [DIBP File 2].

22. In essence [DIBP File 1] is the Departmental file which contains documents relating to the application for a protection visa and [DIBP File 2] is the file relating to the investigation of the applicant’s identity.

23. At the time of the first Tribunal hearing both files contained certificates issued pursuant to s.438(1)(a) of the Act. The existence of these certificates was discussed at the first Tribunal hearing. The Tribunal told the applicant and his representative that it was the Tribunal’s view that the certificates were not valid certificates and it intended to refer the certificates to the Department for their advice on whether they wished to revoke or amend the certificates.

24. On 22 June 2018 the delegate issued a new certificate restricting the disclosure of material on [DIBP File 2]. That certificate restricts the disclosure of material under the headings “Examination method” and “Observations” contained in the document in folios 49 and 50 of the file and the matter under the heading “Observations” contained in Folio 83 of the file.

25. The delegate stated that the information specified should not be disclosed to the applicant or the applicant’s representative because it contains information which could disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effective use of those methods. Specifically the information specified may reveal the methods used by the Australian Government to detect fraudulent travel documents.

26. In weighing the public interest aspects against the interests of the applicant, the delegate noted that the elements of the result of the investigation relevant to the decision have already been disclosed to the applicant. On balance the delegate considered that there were compelling public interest reasons for not disclosing the information.

27. The material which continued to be restricted was technical material contained in the body of a document examination report. In the course of the identity assessment the applicant’s Algerian passport and identity card were examined. The conclusion of the report was that the Algerian passport was a genuine passport and the examiner could not come to a conclusion on the identity card because the “issue security” had limited value.  The Tribunal accepts the applicant was made aware of the conclusions at the time he was advised of the decision to refuse his protection visa.

28. The delegate also revoked the previous certificate on [DIPB File 2]. A copy of the re-issued certificate and the documents no longer restricted were provided to the applicant and his representative.

29. On 27 June 2018 the delegate advised that the certificate on [DIPB File 1] was revoked and the previous certificate is inoperative. Copies of those documents previously restricted by the certificate were provided to the applicant’s representative. The restricted documents consisted of a series of emails relating to the applicant’s entry to Australia and searches for evidence of his entry and changes to the applicant’s onshore administrative records, a referral form to the National Identity Verification and Advice Section (NIVA) and the results of the NIVA assessment of the applicant’s identity.

30. The Tribunal is of the view that the re-issued certificate on [DIBP File 2] appears to be a valid certificate. It sets out specific public interest considerations and weighs them appropriately with the applicant’s interests.

31. A copy of the certificate was sent to the applicant’s representative and submissions were invited. The representative stated at the second Tribunal hearing that they did not have any submissions as to validity if the material was not used in any adverse manner to the applicant’s case. The Tribunal does not consider that the Examination Methods or Observations on the document examination reports are either relevant or adverse to the applicant. The applicant asserts that he is of the same identity set out in the passport and identity card and the reports are consistent with his claims as to his real identity. The material is not adverse to, nor does it undermine, his claims.

32. The Tribunal considers the non-disclosure of the restricted material does not result in a loss of opportunity to advance the applicant’s case. The material in the documents does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal[1].

    [1] Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at 72

    Interpreting issues

33. In the application for protection the applicant has stated that he speaks, read and writes in French and Arabic and that he speaks English. On 13 March 2018 the applicant’s representative wrote to the Tribunal and underlined a request that the applicant required an Arabic interpreter for the hearing to be held on 16 March 2018. The Tribunal arranged for an Arabic interpreter to assist at the hearing.

34. At the commencement of the hearing held on 16 March 2018 the applicant’s representative noted that the interpreter spoke Arabic with a Lebanese dialect which was a little different to the Algerian Arabic dialect. The Tribunal asked the applicant and his representative if he sought an adjournment to allow the Tribunal to enquire if it could arrange an interpreter with an Algerian dialect. The Tribunal stated that it was important that the applicant understood the interpreter and if he wished to seek an adjournment he should do so at the beginning of the hearing. The applicant stated he was happy to proceed as he understood the interpreter. The Tribunal also told the applicant that it was important that if he could not understand the interpreter he should immediately tell the Tribunal and not raise the issue at some later time.

35. After giving evidence for approximately two hours the applicant was asked whether he wished to make a comment on different versions of claims he had given in connection with his protection visa. The interpreter commenced interpreting and the applicant then intervened and gave an answer in clear English. He told the interpreter that she had not understood his answer and he gave his answer in English. The Tribunal adjourned the hearing for a short break and asked the applicant to speak with his representative about whether he wanted to continue with the hearing.

36. After the break the Tribunal adjourned the hearing to another date at the request of the applicant. He stated that he was having some difficulties and the Tribunal acknowledged the differences in the dialects and suggested that he might wish to request a French interpreter for the next hearing given the difficulties in obtaining Arabic interpreters familiar with the Algerian dialect.

37. The applicant attended an adjourned Tribunal hearing which took place on 10 December 2018. As the applicant had raised concerns with the Arabic interpreter at the first hearing the adjourned hearing was conducted with the assistance of a French interpreter. At the beginning of the hearing the applicant indicated that he wished to give his evidence in English and would use the French interpreter if he had any difficulties in understanding or expressing himself.

38. For the sake of caution, at the commencement of the second hearing the Tribunal repeated the evidence interpreted at the first hearing. The Tribunal invited the applicant to indicate whether the evidence as interpreted was an accurate reflection of the evidence he gave at the earlier hearing. He did not seek to change, add to or elaborate on the evidence as put to him at the hearing.

39. By way of observation, the Tribunal found that the applicant appeared to have quite a good level of English; he sought the assistance of the French interpreter when needed but generally answered the questions in English. He explained that he spoke Arabic and French and had developed his English skills while living in Australia.

40. Following the second hearing the applicant’s representative made written submissions on the interpreting issues in the first Tribunal hearing.

41. The representative submitted that there were considerable issues during the first hearing, in particular the interpreter provided spoke Lebanese Arabic and this dialect proved to be considerably different from the applicant’s Algerian Arabic. However, the Tribunal notes that despite being asked if he wished to seek an adjournment of the first hearing the applicant indicated that he wished to proceed with the hearing on that date. Further the Tribunal indicated that the applicant should advise the Tribunal immediately if he was having difficulty but he did make any objection to the interpreter for the first two hours of the hearing.

42. The applicant’s representative submitted that interpreting issues clearly resulted in confusion and misunderstanding on more than one occasion. She noted that at one point the Tribunal stated “I am not getting any sense of what actually happened to you, where you lived or how you lived. It’s a very superficial or surface type of description”.

43. However, the Tribunal does not accept that interpretation difficulties resulted in confusion and misunderstandings during the evidence. When the applicant felt that his answer was not being accurately interpreted he spoke up and told the interpreter she was not explaining his answer correctly.

44. It also rejects the characterisation of the Tribunal’s response to his evidence as an example of confusion and misunderstanding. This was not a case where the applicant was providing detailed evidence which, in turn, was not being adequately or accurately interpreted by the interpreter. The Tribunal found that at many points in his evidence the applicant simply was unable or unwilling to give a detailed response to questions. Where he was asked to give a narrative or some plausible detail his answers were limited to a few words. The purpose of pointing out the superficiality of his responses was to direct his attention to the lack of adequate evidence and importance of providing further detail.

45. In any event, the Tribunal repeated the evidence interpreted at the first hearing and the applicant indicated he was satisfied with the evidence as interpreted. In these circumstances the Tribunal is satisfied that the applicant was not prevented from giving evidence and presenting arguments relating to the issues in relation to the decision under review.

    Background

46. The identity of the applicant was a significant issue for the delegate because of the way in which the applicant came to Australia and the information he provided in connection with his application for protection.

47. A considerable amount of the material on the Department’s files concerned an assessment of the applicant’s identity. The Department concluded after undertaking these investigations that the applicant held the identity he had claimed in his protection visa application, that is, [the applicant’s name], even though he arrived in Australia on a French passport in another person’s name.

48. Having heard the applicant give evidence the Tribunal accepts the background biographical information he provided in his application for protection and in his evidence at the hearing as set out below. That is, his name and date of birth, his place of birth and later residence, his family composition and the schools he attended.

49. The applicant was born in Mascara, Algeria, is now [age] years old and is an Algerian citizen.

50. Even though he was born in Mascara his family lived in Oran and he attended primary school and high school in Oran. In his application form he gave his previous residence as an address in [a part of] Oran. At the Tribunal hearing he stated that his parents and family moved to Oran when he was about two years old. Oran is a major city located on the coastline of Algeria[2] and Mascara is a town in the hills about 80 kilometres from Oran.

    [2] Google Maps online:

51. He gave the names of his parents and his [siblings], all of whom were living in Algeria.

52. In the application for protection the applicant stated that he had been a [tradesperson] from June 1997 to October 2012.

53. In the applicant’s 2014 statutory declaration he stated he was raised in a Muslim family but does not practise Islam. He confirmed the details of his parents and siblings. He claimed his father was a [occupation] in Oran and other places in Algeria. His mother did not work.

54. He stated his father regularly attended the local mosque and when he was young he would go to the mosque with his father, but around the age of 15 years he stopped attending. He claimed he was not interested in practising Islam and around this time he started working away from home a lot. His father was strict and aggressive during his childhood and would often hit his mother and siblings.

55. When he finished school he started [an apprenticeship] with a [business] and would travel regularly to work at different sites. When he travelled he would stay in different places whilst his employer worked on particular projects. Sometimes he would be away for two months and sometimes for short periods.

56. At the Tribunal hearing the applicant stated his father was a [occupation] and his mother did not do any paid work. He has [several siblings] all living in Algeria. He stated that he speaks to his mother by telephone but does not speak with his father or siblings. He told the Tribunal he finished school when he was about [age] or [age] years old. When he left school he found work as an apprentice [tradesperson].

57. He told the Tribunal that from the time he started working he lived at different places; sometimes on worksites, sometimes at home or living in other places. When he turned 18 years he started working in different jobs. Although he was quite vague about his employment during these years, he talked about working in [another industry] and doing odd jobs as a [tradesperson] in Oran. He did this sort of work until he left the country at [age] years.

    The applicant’s mental health issues

58. The applicant applied for a protection visa on 5 December 2012. He listed his address as[address]. This is the street address of [a] Community Centre which provides support to homeless men and women[3].

    [3] [Source deleted]

1. On 27 November 2014 the applicant’s representative submitted that she had been instructed that the applicant was receiving treatment from a psychiatrist and taking medication. She stated that she would provide more information as soon as possible.

2. In the statutory declaration made by the applicant on 27 November 2014 he stated that since he arrived in Australia in 2011 he has experienced many difficulties and has been mentally unwell. He stated that he had recently started to access treatment for mental health issues and was taking medication prescribed by his psychiatrist.

3. The applicant attended an interview with the delegate on 2 December 2014 and his representative made written submissions which referred to that interview and addressed issues raised by the delegate in those submissions. She also enclosed a psychiatric report from [Dr A], consultant psychiatrist, dated 1 December 2014.

4. [Dr A] stated that he had seen the applicant twice, once early in 2014 and again in late November 2014. In providing the report he has relied on two consultations with the applicant. The report set out [Dr A]’s qualifications and experience and noted that the applicant had been referred to him by the health team at [Support Centre 1]. He noted that the applicant spoke good English and had no need of an interpreter.

5. He stated that the applicant was a [age]-year-old single man of North African origin who spoke Arabic, French and English. He is currently living as a guest in a friend’s house in [Australian city 1] but has no social, family or financial support. The applicant described a history of exposure to domestic violence exercised by his father towards his mother, siblings and himself. This consisted of verbal, emotional and physical abuse and occurred throughout his childhood. He told [Dr A] he had left home at the first opportunity and fled Algeria to spend time in France. He stated when this was no longer tenable he sought protection in Australia. The applicant stated that following his arrival in Australia his depressive and post-traumatic symptoms returned in the context of social isolation and concern about his protection claim. When [Dr A] first reviewed him he described depressive symptoms of moderate severity and associated traumatic memories relating to his childhood and adolescence.

6. The applicant described no past relevant psychiatric, medical or family history to [Dr A]. [Dr A] described his presentation at the time of examination and stated his affect was lowered but reactive and thought and speech were normal. He stated there were no psychotic features and no suicidal or homicidal ideation. The applicant was accepting of treatment and [Dr A] found that the applicant was alert, concentrating and displayed average intelligence.

7. [Dr A] diagnosed him with major depression with post-traumatic stress symptoms. He commenced him on an antidepressant and quetiapine to provide anxiolysis and to assist with sleep. The applicant was asked to attend for follow-up at [Support Centre 1], however he did not see [Dr A] again until late November 2014. He told [Dr A] that he had not attended reviews and did not take the prescribed medication due to side-effects. He described significant anxiety related to the stress of attending his interview with the Department and noted significant sleep disturbance, intrusive past traumatic memories, poor concentration and preoccupation with the interview.

8. [Dr A] concluded he had a major depressive disorder of mild-moderate severity and post-traumatic stress symptoms and memories. He noted he had not engaged with treatment but if he were to do so he would anticipate a response within six months. He stated the applicant is not taking any medication except benzodiazepine which [Dr A] prescribed to assist him with insomnia and anxiety.

9. He stated that the applicant’s anxiety, his fear of authority figures stemming from his father and his depressive symptoms would affect his capacity to provide detailed information. He may not tolerate detailed questioning or examination and may provide contradictory, incorrect or incomplete information. He will feel deeply intimidated and fearful and may react in a defensive manner.

10. After noting [Dr A]’s medical opinion, the applicant’s representative submitted that the applicant’s mental health issues are likely to have impacted on his ability to provide evidence and arguments in respect of his claims for protection both in preparing his statement and during his protection interview. She reiterated that the applicant experienced significant issues with his memory and requested that this be taken into account when assessing his evidence.

11. Following the refusal of the application for a protection visa, the applicant sought review and was invited to a hearing on 16 March 2018. On 9 March 2018 the applicant’s representative advised the Tribunal that they needed some time to finalise their submissions as the applicant had some vulnerabilities, that is, his homelessness and mental health issues.

12. On 13 March 2018 the applicant’s representative provided written submissions including submissions on the applicant’s mental health. She submitted:

    ·     That the applicant’s mental health issues are likely to impact on his ability to provide evidence and arguments in respect of his claims for protection both in previously preparing statements and during his protection interview.

    ·     His mental health history is relevant to a number of material issues for assessing whether the applicant meets the refugee definition. Including the applicant’s personal characteristics and circumstances in determining whether lesser forms of physical and mental harm such as threats would meet the requisite thresholds of serious harm or significant harm;

    ·     In the event that the Tribunal finds there is another area within Algeria where there would not be a real chance of persecution now or in the reasonably foreseeable future or a real risk of significant harm, his mental health is relevant to whether it would be reasonable in the sense of practicable for the applicant to relocate that area; and

    ·     There are issues of demeanour and the assessment of the material relevance of any perceived inconsistencies or material omissions regarding the applicant’s evidence to the Department and to the Tribunal.

13. Prior to the second hearing held on 10 December 2018 the applicant’s representative provided further documents including a letter from [Support Centre 2] dated 6 December 2018 and a report from [Dr B], consultant psychiatrist, dated 20 November 2018.

14. The letter from [Support Centre 2] noted that the applicant has been a client of [a] Community Centre from 2012. Initially he used the centre to access meals, shower, laundry and computer facilities. He also uses the centre as his mailing address and collects his mail. During the time he uses the centre he has received consultations with visiting lawyers and has as needed met with staff members of the drop-in program for information and advice.

15. Due to not having permanent accommodation he currently attended the centre to collect his mail and can continue to do this for as long as required. Throughout his association with the centre he has followed its client code of conduct and shown considerable respect to staff members and his peers.

16. [Dr B] stated that he has been the applicant’s treating psychiatrist since March 2018 and has diagnosed the applicant with paranoid psychosis, post-traumatic stress disorder and cannabis and alcohol dependence.

17. He set out a short history as given by the applicant. He stated that the applicant grew up in a violent home in Algeria where his father victimised the applicant for his homosexuality. He stated that his father was trying to kill the applicant. The applicant developed PTSD from his childhood. His father smoked marijuana at home and the applicant commenced using marijuana from the age of 12 years. Violence escalated in the home. He stated that the applicant left school after only two years and worked as a [tradesperson]’s apprentice. He then went into [another industry]and worked in a [shop].

18. He stated that the applicant was victimised in Algeria for his homosexuality and had claimed it was impossible to live as homosexual man in Algeria because one had to hide and could not trust anyone. The applicant left home two years before he left Algeria by boat in 2009. He first stayed in [Country 1] and then went to France and left for Australia in 2011. He has lived in [Australian city 1] ever since he arrived in Australia and applied for refugee status in 2012. The applicant lives under constant psychological stress on account of his application. The applicant is a loner and has few friends but feels safer in Australia. He has suffered paranoia secondary to his cannabis and alcohol use and attends [a centre] for drug and alcohol rehabilitation. [Dr B] has prescribed an antipsychotic preparation for his paranoia and an antidepressant. He plans to see him on a quarterly basis. However, the Tribunal noted that [Dr B] did not state how often he had consulted with the applicant since March 2018.

19. Following the second Tribunal hearing the applicant’s representative made submissions on a number of matters including the applicant’s mental health. The applicant’s representative submits that the applicant has considerable and ongoing issues with his mental health and a number of complex vulnerabilities which made it difficult for him to engage in Tribunal processes and to provide a detailed account of his claims for protection. These vulnerabilities are also relevant when considering relocation and whether lesser forms of physical and mental harm would meet the requisite thresholds of serious harm or significant harm.

20. The applicant’s representative noted that the Tribunal had raised concerns about the different diagnoses provided in [Dr A]’s and [Dr B]’s reports. She submitted there was considerable overlap between the two reports and any discrepancies can be explained by the passage of four years as well as the fact that it is open to different assessing psychologists[4] [sic] to come to differing views on a diagnosis. She noted that there were no concerns raised regarding [Dr B]’s qualifications or expertise and submits it is not open to the Tribunal to doubt the diagnosis provided by [Dr B]. It is her strong submission that [Dr B]’s report should be given considerable weight.

    [4] Both [Dr A] and [Dr B] have described themselves as consultant psychiatrists.

21. She submitted that the applicant’s mental health history is directly relevant to issues of demeanour and assessment of the material relevance of any perceived inconsistencies or material omissions regarding his evidence to the Department and to the Tribunal.

22. During the Tribunal hearings the applicant presented as a quiet and polite witness. He was able to answer some questions responsively but appeared either unable or unwilling to answer other questions in any plausible detail. Overall his evidence was disconnected and he appeared disengaged. The applicant’s representative submits that the applicant’s mental illness should be taken into account when assessing his evidence and the Tribunal has taken this into account.

23. During the first Tribunal hearing the Tribunal questioned the applicant as to his lifestyle in [Country 1] and suggested he might have had some psychological problems at that time. He agreed that he has psychological problems. The Tribunal asked him about his health in Algeria and he stated he thought he was in good health in Algeria and did not have any psychological problems in Algeria.

24. He stated that he was homeless in [Country 1] and France but was unable or unwilling to give any further details about this situation in Europe or details of how he moved from [Country 1] to France. He gave evidence that he had lived on the streets in [Australian city 1] and provided a letter from [Support Centre 2] which supported this evidence.

25. However, despite stating he had probably been in good health in Algeria in the second Tribunal hearing the applicant gave evidence that he had been a drug user in Algeria from an early age and had a drug and alcohol dependency in Algeria. [Dr B] also stated that the applicant had a history of drug use from a young age. The applicant stated that he lived in different places in Algeria and sometimes lived at worksites which suggests an itinerant if not homeless lifestyle.

26. The Tribunal has considered the material contained in [Dr A] and [Dr B]’s reports and their assessment of the applicant’s mental health. It notes that the applicant appears to have had minimal contact with both psychiatrists. [Dr A] first saw the applicant in early 2014 and recommended regular follow ups. Despite this, he only saw the applicant again in late November 2014 shortly before his scheduled interview with the delegate.

27. The applicant consulted [Dr B] in March 2018 around the time of his first Tribunal hearing. However [Dr B] has not indicated the number of times he has seen the applicant although he planned quarterly reviews.

28. As submitted by the applicant’s representative, the material in [Dr A]’s and [Dr B]’s reports does overlap on some matters. [Dr A] appears to link the applicant’s mental health problems to severe family violence experienced in his home but he does not mention any claims that the applicant is a homosexual or suffered any violence at his father’s hands for that reason. [Dr B] refers to significant family violence in Algeria and also states that the applicant’s father victimised him for his homosexuality. [Dr B]’s report is short and the Tribunal finds it quite limited in value. It does not set out [Dr B]’s qualifications and experience, it does not set out the number of his consultations with the applicant and it does not set out how [Dr B] took the applicant’s history or what materials he had prior to his consultation/s. Nevertheless the Tribunal accepts that there is evidence which indicates that the applicant suffered family violence from a harsh father, that he had drug dependency issues in Algeria and in Australia, that he has spent a large part of his adult life living as a homeless person and that he suffers from mental illness, including depression, post-traumatic stress symptoms (or disorder) and drug induced psychosis.

29. The Tribunal accepts that the applicant has been a victim of family violence as a child and has also been a long drug user in Algeria and in Australia. It accepts that the applicant is suffering from mental illness and that his homeless lifestyle in Algeria, Europe and Australia is consistent with long term mental illness.

30. The Tribunal has considered the applicant’s mental health in assessing his evidence. It accepts that there may be gaps, omissions and inconsistencies which may be partly explained by his mental health conditions. Nevertheless the Tribunal is required to make findings on the applicant’s claims for protection and must weigh up the evidence it has before it, taking into account these issues.

    Credibility

31. The Tribunal’s task in determining whether the applicant is owed protection is to make findings of fact on relevant matters. The task of fact-finding often involves an assessment of an applicant’s credibility.

32. In this context, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach in making its findings with regard to credibility and for the benefit of the doubt to be given to asylum seekers who were generally credible but unable to substantiate all of the claims.

33. However the Tribunal is not required to accept uncritically any and all claims made by an applicant.

34. The Macquarie Dictionary defines the meaning of credible as:

    ·     1.  capable of being believed; believable.

    ·     2.  worthy of belief or confidence; trustworthy.

35. In some contexts, where an applicant’s evidence is found not to be credible there can be a pejorative connotation to such a finding, such as where there is a deliberate attempt to mislead by giving false or untruthful evidence. However, evidence can also lack credibility when it is unreliable by reason of incapacity or mistaken recall. 

36. The Tribunal accepts that the applicant suffers from a long standing mental illness which may have had an impact on his ability to give reliable evidence regarding his claims. Notwithstanding his mental illness he was able to provide fairly detailed instructions to his representatives to enable them to draft his statutory declarations. He also was able to learn to speak competent English while in Australia which indicates a good level of intellectual ability and a commitment to learn some significant life skills. [Dr A] noted in his 2014 report that the applicant had a good level of English and did not need an interpreter and the Tribunal observed the applicant was able to answer questions in English at his second Tribunal hearing.

37. Despite evidence of mental illness the Tribunal considers that the applicant has demonstrated that he is willing to provide detailed false and misleading information to obtain a desired outcome; this may be the result of long term drug dependency and mental illness. Whatever the cause, the Tribunal finds that much of the evidence provided or given by the applicant is unreliable.

    Country of reference

38. The applicant claims he is a citizen of Algeria and has provided an Algerian passport and identity card to support that claim. The applicant spoke Arabic and French and appeared to be familiar with the geography of Oran, Algeria.

39. As the applicant arrived in Australia travelling on a French passport in another person’s name the Department conducted a thorough identity assessment of the applicant. Following that assessment the delegate concluded that the applicant is an Algerian citizen and that the identity he claimed in his protection visa is genuine.

40. Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of Algeria and that Algeria is the receiving country for the purpose of s.36(2)(aa) of the Act.

    The applicant’s departure from Algeria and travel to Australia

41. In his application for protection the applicant stated he lived at home in Oran until 2007/2008 and then at various addresses in Algeria until 2012. He stated that he worked as an apprentice [tradesperson] from June 1997 until October 2012.

100.   He stated he left Algeria in October 2012 through the Annaba border crossing into [Country 2], travelled to [Country 3] in October 2012 then arrived in Australia in October 2012. He claimed he left his Algerian passport in Algeria.

101.   On 11 January 2013 the applicant’s representative provided a statutory declaration dated 11 January 2013 outlining the applicant’s travel to Australia. She also advised that the applicant was arranging for his Algerian passport to be sent to him in Australia and it would be presented to the Department when it arrived.

102.   The applicant stated he obtained his Algerian passport in 2008 whilst he was living in Oran. He applied for the passport to enable him to use it to leave Algeria.

103.   He outlined the steps he took to obtain and collect his passport in 2008. His evidence was that he applied for the passport in the town hall in Oran and provided all the necessary identity documents to support his application. A few months later he signed his passport and collected it from the passport authorities. After he received his passport he spoke to people on how to obtain visas to leave Algeria. Friends told him it would be difficult to obtain a visa unless he had a family connection somewhere or a lot of money. He was aware it would be impossible for him to leave Algeria on his Algerian passport.

104.   Sometime after he obtained his passport he was in Algiers for work and met a man called [Mr C] at a hostel. He told [Mr C] that he wanted to leave Algeria and [Mr C] told him he knew someone who could help him and he took him to meet his contact. [Mr C]’s contact told him he could help him go to Australia and could arrange a passport, ticket and visa for US$20,000.

105.   At that time the applicant did not have enough money but told [Mr C]’s contact he would come back when he had enough money. About four years later he saved enough money to pay for the passport and he wanted him to arrange for him to leave Algeria. The applicant paid U$10,000 and was told he would get a passport, a visa and a ticket to Australia. A month later [Mr C]’s contact called him and told him his passport was ready. They met up and the applicant paid the remaining US$10,000 and was given the passport and ticket and told he would be flying from [Country 2].

106.   When he was given the passport he discovered it was [a Country 4] passport in the name of [Applicant’s Alias 2]. He could not remember the family name in the passport and the photograph was someone who looked a lot like him.

107.   In October 2012 he left Oran and travelled by car across the border with [Country 2] and into [Country 2]. He did not have to show his passport when he crossed the border because he was travelling from Algeria and the border between the two countries is open. He left his Algerian passport with his mother in Algeria and she advised that she would send the original passport to the applicant in Australia.

108.   He stayed in [Country 2] for a couple of days and then flew to [Country 3] with [an airline]. He had a stopover for a couple of hours in [Country 3] and then flew to [Australian city 1] with [another airline]. He thinks he arrived in [Australian city 1] on about [date] or [date] October 2012 but was not sure. He stated a man on the plane helped him complete the arrival form after he gave him his passport. When he arrived in [Australian city 1] he did not have any problems passing through immigration and when he left the airport he threw the passport in the rubbish bin. As soon as he left the airport in [Australian city 1] he caught a bus to [Australian city 1].

109.   Following the provision of this statutory declaration the delegate requested a National Identity Verification and Advice (NIVA) assessment. As a result of the assessment the delegate accepted the identity and nationality claimed by the applicant.

110.   On 17 December 2014 the applicant provided a further statutory declaration made on 27 November 2014 which outlined the manner in which he travelled to Australia and set out his claims for protection in greater detail.

111.   He stated that since he had been in Australia he had been experiencing difficulties with his memory and has now started seeing a psychiatrist. He is also taking medication. He claimed he had a lot of difficulty remembering detailed information and requested it be taken into account in considering his evidence. He stated he prepared the statutory declaration with the assistance of his lawyer and has tried to remember as much as possible.

112.   The Tribunal notes the 2014 report provided by [Dr A] which stated that he had seen the applicant twice, that the applicant had not attended reviews and had not taken his prescribed medication. This appears to conflict with the statement he made in his 2014 statutory declaration.

113.   The applicant stated he was raised in a Muslim family, however he did not practise Islam. He had [several siblings] and his brothers and sisters still live in Oran, Algeria. He completed school in Oran in about [year]. After he finished school he started [an] apprenticeship and would travel regularly to work at different sites. Sometimes he would be away for two months and sometimes for short periods of time.

114.   He left Algeria by boat in about 2009. He first went to [Country 1] before he travelled to France. He is not sure exactly how long he remained in France however he lived there illegally until he travelled to Australia in 2011 using a French passport.

115.   After he arrived in Australia he was afraid he may be detained so did not make an application for a protection visa. Eventually he decided to do something about his visa situation so he contacted [Support Centre 1] and the [Community Legal 1] and made an application for a protection visa.

116.   Since he has been in Australia he experienced many difficulties and has been mentally unwell but has started access treatment for his mental health issues. He is also taking medication prescribed for him. Again this appears to conflict with the information in [Dr A]’s 2014 report.

117.   At the Tribunal hearing the applicant stated that although he had initially worked as an apprentice [tradesperson], when he turned 18 years he worked in a number of different jobs, generally in [a particular industry]. He claimed that he left Algeria when he was about [age] years of age (2009).

118.   He stated that he obtained an Algerian passport in 2008.

119.   With respect to his departure he stated that he met someone named [Mr C] near Algiers who smuggled people out of Algeria. He decided to leave by boat because he believed he would not be able to obtain a visa.  The amount required for the departure was the equivalent of AUD10,000 but [Mr C] stated he needed more people before he could arrange his departure. The applicant paid him half of the amount and was told they would contact him when he had arranged the boat.

120.   While waiting for his departure he claimed he lived at different places and was engaged in casual work.

121.   He left Oran in the middle of 2009. He told the Tribunal he did not know where exactly where he departed; a port in Oran somewhere on the sea. He was taken to the port by car and then left by inflatable boat with about 20 occupants. He arrived in [Country 1] about one day later and did not know where he arrived. He stated that when he left the boat he had no possessions just a sum of money; about AUD10,000. He told the Tribunal he walked to the closest city and moved from one place to another on the streets. Sometimes he ate from rubbish bins and sometimes he went to homeless centres which provided food.

122.   At some stage he moved to France but could not tell the Tribunal when or how he arranged his travel. He stated someone helped him cross the border by car. He claimed his life in France was similar to [Country 1] just moving from place to place. When the Tribunal asked him to give greater detail to his life in France he stated he lived on the streets. He lived in Paris for a while but could not remember when or how long he lived there.

123.   He decided to leave Paris and go somewhere else. He was not happy in Paris; he felt the same as he had in Algeria. There were many Algerians in Paris, there was a lot of racism in Paris and he had no identity documents.

124.   He decided he wanted to leave Paris and he contacted the person who helped him leave Algeria ([Mr C]) and told him he wanted to go somewhere else. He was not sure whether he had his own phone or not but he did have [Mr C]’s telephone number.

125.   He was worried he would be deported so he contacted his mother and asked her to send his Algerian passport. She arranged for someone to deliver it to him in France. He claims he had his Algerian passport in France but he also obtained another false French passport. When asked what happened to his Algerian passport he stated he gave it to someone else who took it back to Algeria. At this point the applicant’s representative intervened and stated the applicant was confused.

126.   The Tribunal repeated the evidence the applicant had just given and the applicant confirmed that evidence. That is, he obtained an Algerian passport in 2008 and he left Algeria without that passport. While in France his mother arranged to send that passport to him. In the meantime [Mr C] organised a French passport for him. He then left his Algerian passport with someone else he knew in Paris. That person returned the Algerian passport to his family.

127.   While it is difficult to understand and accept that the applicant lived in [Country 1] and France without any recollection of where he lived or how he supported himself the Tribunal accepts for the purpose of this decision that the applicant lived as a homeless person for some time in [Country 1] and then in France.

128.   The applicant claimed he left Paris for [Country 3] and then travelled to Australia. When questioned about how he met the expenses for the travel he claimed he had $10,000 in cash. The Tribunal put it to him that he had lived in [Country 1] and France for a long time and had to pay [Mr C] for the false passport as well. He stated he lived frugally; he ate at homeless places and bought a ticket from a travel agent in Paris.

129.   However, the Tribunal does not accept that the applicant lived in [Country 1] and France for two years, purchased a false French passport and visa for Australia, paid for airline tickets and travel expenses, and lived in Australia for some time without financial assistance from another source.

130.   He stated that he chose to come to Australia because it was a long way away. He thought first of [another country]but then changed his mind. He arrived in [Australian city 1] in 2011.

131.   The Tribunal put it to him that when he applied for protection he had the assistance of a migration advisor who would have talked to him about the things which worried him and the law in Australia. In these circumstances it questioned why he had not told the real story about his departure at that time. He claimed he did not trust anyone. Once he went to the interview with the delegate he felt better so he told the truth.

132.   The Tribunal put it to him that he had given different versions which might suggest that his evidence was not accurate despite his explanation that he was anxious and did not trust anyone when he gave the first version of events. He claimed that he feared being deported but when he was face to face with the delegate he told the truth about his departure from Algeria.

133.   When the applicant attended the second hearing the Tribunal asked him whether he could explain why he gave quite different versions of how he departed Algeria. He stated he feared he was in trouble, he was using someone else’s passport and he did not know what to do. He did not know anybody and his English was poor. He had heard stories about the authorities taking a serious view of people smuggling so he did not want to admit he had left Algeria in that manner.

134.   The Tribunal put it to him that he had given quite a detailed account to his representative and asked him why the story was now so different. He stated he did not want to admit that he had used a people smuggler.

135.   The applicant has given quite different accounts of the manner in which he left Algeria and how he lived in Algeria. The Tribunal notes that the applicant’s account of how he left Algeria as stated in his application for protection, his statutory declaration of 11 January 2013, his statutory declaration of 27 November 2014 and in oral evidence given to the Tribunal all differ. He has not satisfactorily explained why the accounts are so markedly different. The Tribunal does not accept that he was concerned about negative publicity about people smuggling when he provided instructions for his application and statutory declaration of 11 January 2013.

136.   Further despite submissions as to his confusion and poor recall, his statutory declarations were quite detailed which is not consistent with evidence that he was not able to provide coherent instructions.

137.   The Tribunal considers his application for protection and his first statutory declaration were misleading and intended to hide the fact that he arrived in Australia some 18 months before he applied for protection.

138.   Notwithstanding significant concerns regarding the reliability of the applicant’s evidence, the Tribunal accepts the evidence that the applicant arrived in Australia in May 2011 travelling on a French passport in the name of another person. It accepts that the applicant left Algeria prior to his arrival in Australia and spent some time in [Country 1] and France.

Did the applicant leave Algeria without his passport and without passing through border control?

139.   The applicant has given different versions of how he departed Algeria. In his first version he claims that he left Algeria by crossing the open border to [Country 2] and then departing from [Country 2] with a false passport.

140.   In his second statutory declaration he stated that he left Algeria by boat and went to [Country 1] and then to France. He stated he does not know how long he stayed in France; however he lived there illegally until he travelled to Australia in 2011 using a French passport.

141.   In the hearing the applicant stated that he left Algeria by boat about mid-way through 2009 and arrived in [Country 1] without his Algerian passport, he later travelled to France where he stayed for an unknown period of time and later obtained his Algerian passport from his mother. He claimed that he then returned his Algerian passport to his mother using the services of someone he knew in France.

142.   The Tribunal is unable to make a clear finding as to the manner in which the applicant left Algeria and travelled to Australia. For the purposes of this decision, the Tribunal accepts the applicant’s evidence that he left Algeria by boat and arrived in [Country 1] in or about mid-2009. The applicant claims that he did not have his Algerian passport with him at that time.

143.   The applicant has consistently claimed that he applied for and obtained an Algerian passport in 2008. He provided a copy of that passport to the Department and the document examiner concluded the passport was a genuine Algerian passport. The applicant stated he has not used the passport to depart Algeria. The Tribunal notes that the passport does not have any departure stamps in the body of the passport and this is consistent with the applicant’s evidence that he has not used the passport to depart Algeria.

144.   The applicant first claimed he left Algeria through the border of [Country 2] and then left [Country 2] using a false [Country 4] passport. He later claimed he left Algeria by boat and travelled to [Country 1] and then to France without a passport or identity papers.

145.   The Tribunal considers that the applicant has not provided reliable or credible evidence on a number of matters as set out in this decision. However, the evidence of the applicant is supported by the objective evidence contained in his Algerian passport which suggests that he has left Algeria without a departure stamp. The Tribunal accepts that the applicant has departed Algeria without his passport and without passing through any border or customs control.

What is the applicant’s sexual orientation?

146.   The applicant stated in his application form for a protection visa he was threatened by his father because of his homosexuality and because he does not practise Islam. He stated his father attempted to kill him because of his sexuality and he was isolated from people in the community because of his sexuality. He claimed he was not able to live openly.

147.   He claimed he feared being killed by his father, and isolated from and bullied by his community because of his sexuality. If caught by authorities he fears being physically harmed or detained because of his sexuality. He claimed he was a homosexual.

148.   In the applicant’s statutory declaration of 11 January 2013 prepared with the assistance of the applicant’s legal advisors he explains how he left Algeria and how he travelled to Australia. He did not elaborate on the claims he made for protection.

149.   In the applicant’s statutory declaration of 27 November 2014, prepared with the assistance of the applicant’s legal advisors, he gave personal background details, gave details about his claims for protection and also set out how he left Algeria and how he travelled to Australia.

150.   The applicant stated when he was about 13 years old he started having a relationship with his neighbour [Mr D], who was a friend from school. They were the same age and lived in the same building and would often do their homework together. When he was about 17 years old the relationship became more serious but they kept to themselves and did not have other friends from the school or area. No one knew about the relationship and they kept it a secret. They were afraid of what would happen if people found out about the relationship.

151.   When he started working [Mr D] was still studying and living at home. Each time the applicant returned home from travelling for work they would spend time together at each other’s homes. He claimed [Mr D]’s mother discovered they were having a relationship and after a while he thought his mother also worked out that he and [Mr D] were having a relationship because they spent so much time together and he was often at his house. He stated she did not say anything.

152.   He claimed that sometimes he and [Mr D] would go on holidays together away from their homes and would stay in hostels for a week or so.

153.   The applicant claimed that when he was 21/22 years his father found pictures of the applicant and [Mr D] hidden in his bedroom. He claimed his father confronted him and told him to stop doing what he had been doing and hit him with a piece of wood. His father threatened to kill him and the applicant stayed away from home and became careful with his relationship.

154.   He claimed that one day he and [Mr D] met in a café and his father arrived and grabbed him and put him in the car. His father then found a quiet place and tied him up. He started hitting him with a piece of wood until someone came to see why he was screaming. The man who came to help tried to talk to his father and he also untied the applicant. The applicant went to stay with his grandmother and then went to live in a hostel. He did not go to police because they would see it as a family matter. He called his mother but she told him that he could not come back home because his father would kill him. He continued working and travelling to work but did not return to the family home. After a while his parents did not know where he was because he was working away from home and staying at work sites. He continued to talk on the phone with [Mr D] but they had to be careful about their relationship.

155.   The medical report prepared by [Dr A] on 1 December 2014 to support the application noted the applicant’s claims that he had suffered family violence but did not mention any claims made by the applicant that he was a homosexual or that he had suffered any mistreatment for that reason in Algeria or that he feared returning for that reason.

156.   Prior to the second Tribunal hearing in December 2018 the applicant provided a short medical report from [Dr B] and in this report [Dr B] refers to the applicant being victimised in Algeria for reasons of his homosexuality.

157.   At the Tribunal hearing the applicant was asked why he left Algeria. He stated he was not happy with his life and could not see any future. He had issues with his family. He stated he had to leave because he was hiding something about himself and did not have much of a life. He stated he feared returning to Algeria because he could be prosecuted and detained or abused by members of the community. He stated it was common for gay people to be put in jail and nobody could help him if this happened. He stated the main reason he could not return to Algeria was that it was not safe and he had a problem with his father and feared he would be killed if he returned.

158.   At that time he did not think much about his sexual identity but was aware that attitudes to homosexuality in Algeria were that it was like a disease. Homosexuality was not accepted in Algeria. It was a little bit difficult to think about it or to talk about it at the time. It was hurting him; he was thinking he was sick and had to see a doctor but did not talk to anyone about it.

159.   He did not think about the future because he did not have a future; day to day, hour to hour, he was just waiting and not thinking about the future.