1507254 (Refugee)

1507254 (Refugee) [2019] AATA 1341 (18 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507254
COUNTRY OF REFERENCE:                  Guinea
MEMBER:Sean Baker
DATE:18 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 18 January 2019 at 2:44pm

CATCHWORDS
REFUGEE – protection visa – Guinea – political opinion – member or former member of opposition party – particular social group – former medical student – witness of massacre – symptoms of PTSD – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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

[The applicant] is a citizen of Guinea. He grew up in [Village 1], Boke, but attended university in Conakry. He speaks French, Soussou and Malinke. He claims to have been a medical student in Conakry at the time of the 28 September 2009 stadium massacre. He claims that he, along with two friends, helped victims of the massacre and was searched by soldiers and police who found his opposition party card and who then beat him unconscious. His two friends were killed. He moved around the country and then fled to Australia. He fears being killed for his membership of an opposition political party, [Political Party 1], his witnessing the aftermath of the massacre and his status as a Doctor.
The delegate refused the application. The applicant did not provide a copy of the delegate’s decision.
The applicant attended a hearing and was represented in relation to the review by his registered migration agent.
The applicant requested, and was provided with, an interpreter in the French language. The applicant did not indicate that he had any difficulties understanding or speaking to the interpreter, nor did the interpreter raise any issues in comprehending the applicant.
The issues in this case are whether the applicant has a well-founded fear of persecution on return to Guinea and, if not, whether there is a real risk he will suffer significant harm if he is returned to Guinea. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.
Identity and nationality
The applicant has provided a Guinean passport in his name which he states is his genuine passport. There is no evidence to the contrary and I accept that the applicant is who he claims to be and is a national of Guinea, which is also his receiving country.
Claims
In his application for a protection visa the applicant said that he left Guinea because there is no respect for human rights and the dignity of the individual is of no account. He said he had been harmed in that country, that he was wounded on his [Body Part 1] and still has the scars and he was then wounded on his head. He claimed that if he returned he would not be safe, they are quite capable of killing him. He believes this will happen because human rights are not honoured and there is nowhere a complaint can be lodged or truth and justice can be found. The authorities will not protect him because the men are drunk with power and this means the authorities are not able to protect him. He states that he left the country through the airport [in] November 2013.
With his application he provided a copy of a document in French, with a translation which indicates that his claims were based on this document. He also provided a statutory declaration declared 27 November 2013 in which he claims to fear the torture and abuse he experienced in Guinea. He states that he is with the movement for the improvement of the current state of human protection in Guinea, that the government and its supporters are the ones mistreating citizens and will ensure he does not express what the government is doing, and for this to occur the government official mistreated him. He received serious persecution from the police officials and the government will not assist him as they do not want the officials to look bad. He was beaten including serious torture and he was beaten on the head and fell unconscious to the ground, he woke up and saw he had a cut on his [Body Part 1]. The government will not protect him from the police official as they are still killing innocent people from his village. This incident caused him mental breakdown and he still bears the scars of trauma from the tortured experiences he suffered at the hands of the authorities. He fears being returned and being unable to access appropriate food and medical facilities and social supports.
According to the submission of 6 August 2018, the claims of the applicant have been set out in his previous application and during his previous interview but the submission provides a summary:
[The applicant] was a medical student in the Medicine Department at [University 1] in Conakry when the 28 September 2009 massacre occurred and he became victim to the human rights violations that subsequently followed. In late September 2009 [the applicant] was [with] two friends, [Mr A] and [Mr B] when they saw some injured people lying by the railway lines as a result of the aftermath of a massacre.
As a medical student, he tried to assist the injured until help arrived. When help finally arrived, he was searched by the soldiers and police. During the search, the authorities found his membership for the opposing political party, [Political Party 1].
[The applicant] claims that authorities at the scene tied him up, belted him and tortured him. He was then hit hard with the rifle butt and left for dead. When [the applicant] regained consciousness, he was alone and did not know where he was or how he got there. [The applicant] informs that he has a permanent scar across his [Body Part 1] from this incident and still regularly experiences severe headaches.
[The applicant] was living with his friend, [Mr A] and [Mr A]'s mother at the time of the 2009 attack. [Mr A] was with [the applicant] when he [disappeared] after the incident. [The applicant] believes that he was killed however, there is no evidence of this. [The applicant] believes that [Mr A]'s mother made various enquiries into the disappearance of her son and in 2012, she was also killed. [The applicant] does not recall the exact period in 2012 however, informs that her body was bought to the house to be identified.
[The applicant] informs that his other friend [Mr B] was also missing after the 2009 incident and was later found dead in a water [pipe].
[The applicant] claims that he had joined [Political Party 1] in around 2008 as he believed in their values. [Political Party 1] had previously promoted their party at the University and [the applicant] joined as a member and held a membership card. [The applicant] believed in the [leader]'s vision about helping people and maintaining human rights. [The applicant] claimed that this was the reason that he wanted to become a doctor and was opposed to the coup government's views of violence and control of their citizens.
During the period after the incident occurred, [the applicant] instructs that he was traumatised and lost touch with reality for some time. He was in constant fear and every time a military officer approached, he believed they were going to kill him.
[The applicant] attempted to continue studying however, he stopped attending as he feared that his association with the medical profession would result in adverse findings to the authorities for the following reasons.
[The applicant] had encountered corruption in the government in his dealings with hospitals before during an internship as part of his studies and had first hand knowledge of their capabilities. [The applicant] claims that he saw a corrupted doctor take money from a citizen to kill a woman who was pregnant as a result of her husband having an affair. [The applicant] claims that the authorities covered this up and there were no investigation or consequences that took place. [The applicant] fears reprimand as he was witness to the crime and fears that the authorities are unable to protect him due to this ongoing corruption.
[The applicant] also believes that due to information given to national and international Nongovernment organisations about the events of 28 September 2009 and statistic information on the numbers of injuries and deaths resulting from the government's actions, there is a stigma for the government to silence their doctors and anyone that might have information about such events
[The applicant] instructs that he was moving around the country to different addresses after 2009, in fear that he would be located and subjected to further harm. He was working nights loading and unloading food into trucks to save up some money to escape Guinea. During the day he would sleep and ensure that he was always in hiding.
It was when [Mr A]'s mother was killed in 2012 that he made the decision to leave Guinea for his own safety. [The applicant] originally considered fleeing to an Economic Community of West African States (ECOWAS) country to seek protection however, did not believe they could guarantee his safety. We have discussed this further this below. [The applicant] also attempted to obtain a [Country 1] visa in April 2012 however this was refused. [The applicant] does not know the reasons for refusal of the visa.
[The applicant] claims that the authorities are unable to protect him due to his political views against the government and his association with the medical profession that he would be at risk of harm if he were to seek their protection. When obtaining a passport to travel to Australia, [The applicant] changed his occupation to [Occupation 1], although he has never worked as an [Occupation 1], to eliminate his association with the medical field in hope that he would not be identified and prevented from leaving.
He also provided a statutory declaration prior to the hearing, in which he said that:
My History
I was born in Boke, Guinea in [year] and grew up with my mother, [number] sisters and [number] brother in [Village 1].
During my early childhood I attended kindergarten however I soon developed [Medical Condition 1]. My mother ceased my schooling as I was suffering from [various symptoms]. She wanted to wait until I was 100% better before I started primary school again.
I was able to start Primary school when I was [age] years old and after my [Medical Condition 1] went away. My learning ability was as good as the other students and because I was older they allowed me to start Primary in grade [number] instead of starting from the beginning.
After Primary school I attended High school and then went straight into University to study Medicine at [University 1] in [year].
When I moved to Conakry, I stayed with my friend [Mr A] and his mother in their home.
In [year] my girlfriend at the time got pregnant and we had a son together. She stayed with me for one year however, things did not work out between us and she moved back to the village with my son in [year].
2009 Massacre
While I was studying Medicine at [University 1], I joined a political party called [Political Party 1]. [Political Party 1] had come to the University to speak to us and as a medical student, I joined them. The reason that I joined them was because they were fighting against discrimination for handicapped people (mentally and physically) and I believe this was a good cause.
As part of my membership with [Political Party 1], I often volunteered with them and was involved in various work such as providing vaccinations. In 2008 there was an outbreak of cholera and I heavily assisted with this.
In 2009 I was [close] to where the massacre occurred at the Stadium.
I remember that in the morning, our lecturer told us to [leave] and go home.
I was [walking] with my two friends ([Mr B] and [Mr A]) when I saw injured people as well as some dead people on the train tracks. I knew that something was wrong and something must have happened. I didn't know about the seriousness of the massacre until I started hearing other people around me talking about it.
As we were medical students, we started to give first aid to the injured people. I remember I was carrying bandages around in my bag that had been given out for free at the University and started to use these to stop the bleeding on some of the victims. My friends and I also checked to see who was conscious and unconscious and whether they were dead or not until help arrived.
Soon later, members of the military arrived at the scene. I was searched and the authorities found my student card and [Political Party 1] membership card. I remember they took my identity cards off me, tied me up and then started to hit me. I remember being left for dead and when I woke up there was no one around me.
After this event I was constantly in fear walking around the streets and eventually stopped studying and went into hiding. I don't know what happened to my friends who I was walking with but [Mr B] later found dead in a water [pipe].
After the massacre I never saw or heard from [Mr A] again. I believe that he was killed by military.
For a while after the incident I continued to live at [Mr A]'s mother's home. She was making a lot of inquiries into the disappearance of her son.
Unfortunately in 2012, my friend's mother was killed and her body was brought back to her home. It was then that I thought to myself I had to leave Guinea for my own safety otherwise I will be next.
I assumed that the military were trying to eliminate anyone who witnessed, or had a connection to the massacre.
I applied for a visa to [Country 1] in 2012 but this was not successful.
Leaving Guinea
I arrived in Australia in 2013 on a visitor visa and applied for a protection visa almost straight away. This application was refused and I appealed the decision. I have now been given a chance at the Tribunal to submit my claims. I don't think that my protection visa application was very well-prepared and I didn't explain properly all the things that happened to me in Guinea and why I'm afraid to go back.
During my interview with the Department of Immigration I don't believe I had the chance to say all the things I wanted to say about my fears of returning.
Since arriving in Australia, I have received some assistance for my mental health. I received free counselling from [Organisation 1].
I am still affected by what I saw and experienced in Guinea, and am now unable to be in a room or a place with large crowds.
After arriving in Australia I stayed with my [relative] for a while, however he soon kicked me out and said that in Australia. people have to look after themselves. I became homeless and started sleeping on the streets. Since then, I have received help from the Red Cross and [an asylum support organisation] who have helped me to find a job and some accommodation.
Since I arrived in Australia, I was still trying to keep in contact with my ex-girlfriend and son back in Guinea. It was earlier this year when she said to not contact them anymore as there has been people looking for me and asking about my whereabouts. She informed that I was putting her and my son in danger and ceased all communication with me. I believe that the authorities are still looking for me and I have been putting her in a lot of danger if they knew she was in contact with me.
Why I fear returning
I am fearful of returning to Guinea as I truly believe that I will be killed or tortured by the authorities or military. I don't believe that there has been justice for what occurred in 2009 and there are still people actively looking for anyone involved that could potentially speak out. I believe that because I was helping the injured and the authorities know my identity, I am specifically targeted.
I believe that the authorities and government are fearful about the world finding out about the events of 2009 that changed Guinea and created the civil unrest that is still present now.
I believe they will easily be able to track me down as they have my identity cards and know who I am. If I were forced to return to Guinea, I would constantly be in hiding until I am inevitably found and killed.
I believe that they are still actively looking for me now and that is the reason that my exgirlfriend stopped communicating with me due to fears of her safety.
I am traumatised after seeing the aftermath of 2009, two of my friends disappearing and one of them turning up dead and my friend's mother being killed after asking about her son.
I know Guinea is not a safe place for me to return and no one will be able to protect me. If I am forced to go back, I am sure that I will not be able to survive and live safely.
On 24 August 2018 the applicant’s representative provided a post hearing submission responding to concerns raised at the hearing and providing further country information. The submission and information are discussed in more detail below.
Credibility

In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 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 her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
In assessing his claims and his credibility, I have taken account of the 6 August 2018 submission which puts forward that the applicant is a psychologically vulnerable applicant and suffers symptoms of post-traumatic stress disorder, depression and anxiety. In undertaking the hearing I dealt with the applicant as a vulnerable witness, allowing for minor deficiencies in his evidence. I have not placed weight on inconsistencies in his evidence of claimed traumatic events that he claims to have experienced or witnessed. I have had regard to the letter from his counsellor advocate at [Organisation 1] dated 29 April 2014 in which he made claims consistent with his current claims, and was assessed by the counsellor advocate as suffering from Post Traumatic Stress symptoms. I do not have a more recent letter but attached is a document report of an initial assessment of the applicant from March 2017 which indicates he presented with intrusive thoughts and dreams of dead and dying people and was reminded of his experiences in crowds. The report indicates various levels of psychological functioning and under a section ‘diagnosable disorders, ‘yes’ has been selected for PTSD, depressive and anxiety. The report also notes that he has a general practitioner but no other medical specialists. I have taken this information into account but I do not accept that these documents form a diagnosis, nor that they establish the applicant’s claims. In particular I place little weight on the 2017 document because it does not detail who the author is or their qualifications, nor does it state that the applicant has been diagnosed with the ‘diagnosable disorders’, it is noted to be an initial assessment and presents as a tool to guide an assessment rather than the result or conclusions of an assessment in its form as a tick box checklist. For all of these reasons I give this document little weight. I therefore find that I accept that the applicant was assessed by the counsellor advocate as suffering from Post Traumatic Stress symptoms in 2014, and that he has presented to [Organisation 1] in March 2017 for an initial assessment, but that is all. Whilst I have taken this into account, I found that the applicant was able to give consistent and coherent evidence at the hearing. I also do not accept that the 2014 letter, or the ‘initial assessment’ document of 2017 explain, in whole or in part, the identified deficiencies in his evidence below. It has not been established that these symptoms would lead to the deficiencies identified below.
I developed doubts about the applicant’s evidence at the hearing in relation to key aspects of his claims. These led me to explain to him these concerns and the possibility that after considering his explanations for the concerns, I may doubt the credibility of these claims and possibly of his wider evidence. Whilst I am very aware that applicants for protection face unique challenges and should be given the benefit of the doubt where generally credible, my concerns here were with significant parts of his evidence and relate to multiple instances of significant difficulties with his evidence, as set out below.
The applicant claimed to the delegate that French was a second language for him. Whilst I have taken this into account in my assessment below, the applicant did not raise any difficulties with expressing himself at the hearing or after.
Evidence on his two friends
The applicant claims that his two friends, [Mr A] and [Mr B] disappeared on 28 September 2009, and that [Mr A] disappeared and the applicant never saw or spoke to him and does not know what happened to him, and that [Mr B] was later found dead in a water [pipe].
At hearing the applicant told me that he stopped classes when his friend was murdered, that his friend was murdered in 2012 and his friend was [Mr A]. He said he was shot by the military and they left him in a ditch in 2012. I asked how he knew he had been assassinated in 2012 and he said that he was asleep in the morning (he has said that he lived at this time at [Mr A]’s mother’s house) and ‘his mum came to wake me up and she told me that your friend has been murdered’. I asked if when she said this she meant her son and he said she did. I asked how she had known this and he said in the morning she saw him in the ditch and came and told the applicant. I confirmed that he was talking about [Mr A] and he said he was. He said he could not recall exactly when in 2012 this happened but he thought he was murdered in November 2012 when they had started classes.
I raised this apparent inconsistency in his evidence with him in the hearing and he said it was a mistake in his language, it was [Mr A] who was reported missing and [Mr B] who was killed by the military. He said he made a mistake. I noted that it appeared he had told me that [Mr A]’s mother had woken the applicant and told him that her son was dead. He said this was his mistake, it was [Mr B]. Later in the hearing the applicant reiterated that he had made a mistake and that [Mr A] was reported missing and [Mr B] was murdered.
The post hearing submission states:
In regards to the information relating [Mr A], [the applicant] submits that the evidence he gave which suggested that [Mr A]’s body was found in 2012 was a mistake made on his part as he was anxious about the hearing. The hearing had only been in session for around 10 minutes when this evidence was provided and [the applicant] submits he was still very nervous and stressed at this early stage of the hearing. For clarification, [the applicant] submits that [Mr A] went missing after the 2009 Massacre and [Mr B]’s body was found in a water pipe in 2012.
[The applicant] claims that when he woke up after being tortured at the 2009 Massacre he does not remember much of what occurred as he was still in and out of consciousness. He vaguely remembers being taken home and treated however, does not recall the substantial details about how this occurred. He had experienced a traumatic experience and his recollection of events are not always complete or precise.
[The applicant] confirms he is certain that [Mr A] was missing after the 2009 Massacre, [Mr B] was still alive after the 2009 Massacre and was killed in 2012 and [Mr A]’s mother was also killed in 2012.
I have carefully considered the explanations for the apparent inconsistency given by the applicant at hearing and in the post hearing submission. Taking in to account the applicant’s claimed poor mental health and the claimed trauma that he suffered, and his anxiety, stress and nervousness at the hearing, these do not appear to me to explain the evidence he gave. I don’t think that the applicant giving this evidence early in the hearing has any special relevance – having already taken into account that he was nervous and stressed during the hearing. I accept that such factors may affect the evidence that applicants give. But here, the applicant’s evidence was clear, spontaneous, and I made sure to confirm the evidence with him a number of times. The evidence was internally consistent – what I mean by that is that the applicant was able to explain that he had become aware that [Mr A] was killed because [Mr A]’s mother had seen her son’s body and had come and told the applicant this. This is a perfectly coherent claim, except that it is not the claim the applicant has earlier made. I do not accept that this evidence can be explained away by the above factors. I find that the applicant gave evidence about [Mr A] having been murdered and found by [Mr A]’s mother which differs from and cuts across his earlier claims and evidence. This in turn causes me to have doubts about whether any of his claims about [Mr A], [Mr B], and [Mr A]’s mother are true, and whether other evidence he has given is true.
Variation in claims
As indicated above, the applicant made some, undetailed, claims in his protection application. He claimed that he had been harmed in Guinea, that he was wounded on his [Body Part 1] and still has the scars and he was then wounded on his head. He claimed to fear harm but did not specify from whom. This mirrored the claims made in French in the accompanying document with translation. In his statutory declaration declared 27 November 2013 he claimed to fear the torture and abuse he experienced in Guinea. He claimed he is with the movement for the improvement of the current state of human protection in Guinea. He said the government and supporters will ensure he does not express what the government is doing, and the government official mistreated him. He said he suffered serious persecution from police officials. He said he was beaten including serious torture and he was beaten on the head and fell unconscious to the ground, he woke up and saw he had a cut on his [Body Part 1]. He said the police official(s) are still killing innocent people from his village. This incident caused him mental breakdown and he still bears the scars of trauma from the tortured experiences he suffered at the hands of the authorities. He fears being returned and being unable to access appropriate food and medical facilities and social supports.
However, these claims do not align with those he has made from his protection interview onwards, in which he has claimed that he will be harmed by the authorities because of his actions on 28 September 2009, being caught by the authorities whilst he was treating survivors, them finding his [Political Party 1] card, them beating him unconscious and abducting/killing his two friends who were with him and one of their mothers. He claims to fear harm as someone who witnessed the massacre, as a [Political Party 1] supporter and as a Doctor.
At the hearing I asked the applicant why he had not mentioned the specifics of his claims in his written claims with his protection application– neither in the answers to questions nor in his statutory declaration at that time. The applicant responded that he had had a lawyer when he came to Australia and had explained all of that to him and the lawyer had told him to write a rough outline. The lawyer told him that when he went to the interview he could tell them everything and this was the best way to do it. I noted that I had some concerns that the lack of detail in his application and statutory declaration may indicate that he had invented his claims between lodging his application and the protection interview. He said that he had not made the scar on his [Body Part 1]. When I noted that I accepted he had a scar but may have doubts that he obtained it in the manner claimed he said that the scar dates back to 28 September 2009. I note also that the report from the Counsellor advocate dated 28 April 2014, prior to the protection interview, indicates that the applicant related his claims in some detail to her. However, even taking this into account, I note that the consultations occurred in April 2014, some months after the protection application was submitted, and this does not ameliorate my concerns with why he did not provide more detail at the time of making his protection application.
In the post hearing submission the applicant submits that he did not receive adequate migration assistance, despite being represented by a registered migration agent. The submission goes on to note that the form 866 had not been adequately filled out as there were large parts of the information missing and therefore it is reasonable to conclude the applicant did not provide all his claims in his application because he was inadequately represented and not because he fabricated the claims after the form was completed.
Having weighed these explanations, I do not find them convincing. The applicant was able to prepare a statement in French, have this translated, and then inserted as his answers to the protection application. This shows a level of care and deliberateness about the preparation of the protection application in November 2013. He also provided a statutory declaration, duly declared and witnessed. Despite this level of care and thought either on his part or that of his then agent, he did not provide details of what he now says happened to him in Guinea. He did not provide, I find, a summary of what he now claims in those documents – he did not claim to have been present at the 28 September 2009 massacre, nor did he claim that it was here that he was attacked and beaten by the authorities, nor did he claim to be a [Political Party 1] member, nor that his role or profession as a doctor or someone with some training as a doctor would lead him to be harmed. Whilst it is true that in his statutory declaration he claims to be with the ‘movement for the improvement of the current state of human protection in Guinea’ I do not accept that this is a reference or logically connects with his claim now to be a member of the [Political Party 1] because he could have simply stated the name of his political party in his statutory declaration or protection application. Similarly, whilst I accept that he claims in both his protection application and his statutory declaration to have been harmed by officials, he does not describe this event as having happened at the 28 September 2009 massacre. He does not describe his medical training as being relevant either to why this event occurred, or to his fear of harm. Even if the applicant was poorly served by his previous registered migration agent, he appears to have had every opportunity to provide information about his claims in his protection application and in the statutory declaration, yet he did not do so. I do not find the explanations provided to be convincing or to explain the discrepancies in his claims. Whilst I accept that the applicant provided the substance of the claims he now relies on at the interview with the delegate, and some of detail of his claims to his counsellor advocate in April 2014, these took place some time after lodging his application and in this time he did not provide further detail about his claims.
It is the case that people may have a variety of reasons for not disclosing information earlier in the process, and I am aware of this possibility. But the applicant and his representative have not advanced any reasons for the lack of detail other than those above which I find wholly unpersuasive. Whilst I am willing to accept that the applicant has mental health issues, I do not accept on what is before me that these could explain, or assist the above explanation.
It is also not the case that the discrepancies in claims are minor or inconsequential. As I have set them out above, I find that the applicant provided a very undetailed set of claims when making his protection application, and most relevantly did not mention any of the bases on which he relies to claim he will be harmed – his presence and witnessing of the 28 September 2009 massacre, his membership of the [Political Party 1], and his status as a Doctor/trained medical professional. These are now absolutely central to his claims, yet he did not raise these in his protection application.
Having carefully considered the information before me, I find that the variation and lack of detail in his initial claims, in this case, are strongly indicative of the applicant having manufactured his claims between lodging a protection application and the protection interview. This leads me to have concerns that these later claims are true, and whether any of his claims are true.
The applicant in hiding after the massacre
The applicant claims to have been in fear that the authorities would find him and detain him and harm him again after they had beaten him unconscious on 28 September 2009. He did not depart Guinea until [November] 2013. At hearing the applicant claimed to have been in hiding for these four years. He said that for the first 13 months he was hidden by [Mr A]’s mother at her house. He said the authorities came to look for him every month and when they did she would move him to the neighbour’s house. He said he was not completely conscious but was able to be moved by [Mr A]’s mother when the authorities came looking for him. He said that after this he was moving around within Conakry and in other towns of Guinea. The applicant’s evidence was confused and contradictory about this period – for example he claimed to have been working only in a voluntary capacity in this time, and to have been volunteering ‘in hiding’. When asked to explain this he said that it was not every day and was up to him to decide. He insisted he had not been in any paid work in this time but had been given a stipend by the University. When it was pointed out that in the submission of 6 August 2018 he had instructed that he was working nights loading and unloading food into trucks to save up some money to escape Guinea, he then said that he did do this work but that this was only to leave the country so he did not think to mention this earlier, and that he did this work here and there so that he was not detected. The applicant also claimed to have done some work for the [Political Party 1] in an election during this period. When I asked him how he could have done this if he was in hiding he avoided the question.
When asked where and when he had been in hiding he said he tried to leave the country, he was moving to different places. When asked where he had moved he answered vaguely that he did not have a fixed place. When pressed he said he had moved to different houses in Conakry and outside Conakry. He said he moved in and out of Conakry, to [City 1], Boke, [Village 1] as he was scared. I asked if he could provide detail of when he had moved to where and he said he could not, maybe two months, maybe five months here, he did not have a sense of time. He just wanted to move to different places. I asked why he had not put these places in his protection application, in which he claimed to have resided in [specified location], Conakry from October 2006 until November 2013. He said that this was his official address, [Mr A]’s address, and the other places were just finding a friend’s place for the night. I noted again that his protection application did not list [City 1], Boke, or [Village 1] during this time. He said that Boke was like a region, like [a suburb] is to Melbourne. I noted that in the statutory declaration of 8 August 2018, he had said that his girlfriend got pregnant in [year], and stayed with him for one year and then moved back to the village. I asked how she had stayed with him if he had been moving to all of these places. He responded that if someone loves you they follow you in whatever you do. He said his child was born in [City 1].

I explained to him that I had some concerns that he had remained in Guinea for four years and claimed the authorities were looking for him yet had not located him in this time, and that I had concerns with his claim that this was because he was in hiding given I had difficulties with aspects of his evidence.
He responded by saying that in 2009 the President escaped an assassination attempt, on 3 December, and since then he has not been home. He said that no one was going out or coming in of Guinea, officially, there was an embargo on the country, so they decided to give power to the civilians, there was an election in 2010, Alpha Conde won that election. In 2011 there was an assassination attempt so the country was closed again. In 2012 when he tried to leave the country, he was not able to leave the country, and then they murdered the mother of his friend, all of this really scared him, that is why he took some time before leaving the country.
In the post hearing submission the applicant submits that from 2009 until 2013 he was primarily living in Conakry and was constantly moving around. Conakry is divided into five communes consisting of Kaloum, Matoto, Ratoma, Dixin and Matam. The applicant confirmed that when he said he was residing in Conakry but moving around, he was referring to the different communes. It is also noted that the protection application asks for addresses lived at for six months or more and that the applicant does not believe he lived at any of the places outside Conakry for six months or more, and further he did not receive adequate migration assistance in answering this question.
I accept that the applicant may not have listed the other addresses because they ask for addresses lived at for six months or more, and that inadequate migration advice may also have played a part here. But my concerns with the other aspects of his evidence remain. I found his evidence about whether or not he was working, the time periods which he spent within or outside Conakry and how he managed to move around as claimed whilst his girlfriend was with him unconvincing. His evidence on how he managed to conduct his life for these four years, including whether he was undertaking paid work and how he did this, where he was living and how he maintained his relationship were vague and undetailed despite him having many opportunities to describe this period. Even if it is accepted that he was not fully conscious for 13 months after he was attacked, and accepting his vulnerability and mental health diagnoses as above, I find his evidence on these matters insufficient to establish that he was living in hiding as claimed, and that despite the authorities looking for him as frequently as each month at least at the start of this period, they were unable to find him for these four years. This is in the context where the applicant claims that the soldiers took his [Political Party 1] card and National Identity card when they searched him on 28 September 2009 and so had information about the applicant. These concerns lead me to find that the applicant was not living in hiding for these four years, and that if the authorities had wished to find him they could have done so. This in turn leads me to doubt that the applicant was of interest to the authorities at this time or at any other time.
Conclusions on credibility
The above concerns are significant and go to the very heart of his claims that he will be harmed on return to Guinea. They lead me to disbelieve that the things he claims have happened to him have in fact happened. They lead me to the conclusion that the applicant has not been a witness of truth in this process and I find that the applicant’s claims are not credible.
On the basis of my credibility findings, I do not accept that:
·     when the applicant was a trainee at a hospital he witnessed a doctor intentionally killing a pregnant woman and giving her child to another woman;
·     the applicant was a witness to, and gave first aid to victims of the 28 September 2009 stadium massacre, nor do I accept that whilst he was doing this police or army soldiers attacked and beat him until he was unconscious, nor that they took his identity cards including his national identity card, [Political Party 1] membership card and university student card;
·     consequently, I do not accept that the applicant has been traumatised by these experiences;
·     his friends [Mr B] and [Mr A] were abducted and killed by the authorities - either for the reasons claimed; because of their witnessing the massacre and giving first aid to the victims – or for any other reason or basis;
·     the applicant was taken home and treated for his injuries and remained in an unconscious or semi-unconscious state after the attack;
·     the applicant was in hiding after the attack. I do not accept that the authorities came looking for him every month, or at any time, at [Mr A]’s mother’s house or anywhere else. I do not accept that he moved around to avoid detection by the authorities between different parts of Conakry or to other towns and villages in Guinea;
·     [Mr A]’s mother was killed because she was asking after her son, or for any other reason;
·     the applicant applied, to [Country 1] and then to Australia, to flee harm or perceived harm in Guinea;
·     the authorities have come looking for him since his departure, either to his mother or other family members, or to his ex-girlfriend, the mother of his son. Nor do I accept that the authorities have threatened his mother or his ex-girlfriend or anyone else for any reason connected to the applicant;
·     it follows that I do not accept that the applicant is of interest to or wanted by the authorities for these or any other reasons.
The applicant claimed that because the people who committed and ordered the 2009 massacre have not yet been brought to trial there is impunity. Whilst I accept that there is a level of impunity for those who committed and ordered the 2009 massacre, I have found above that the applicant was not a witness to, assisted the victims of or had anything to do with the 2009 massacre and I find therefore that this does not lead to any risk of harm to the applicant.
The applicant claims to have studied medicine for three years at [University 1], Conakry. Despite this his evidence on his childhood [Medical Condition 1] and remission was vague and unclear, as was his evidence on how his girlfriend treated the wound on his arm. I am, however, willing to give him the benefit of the doubt and find that, on the evidence of his student card which he has provided to the Department, that the applicant was a medical student at [University 1], Conakry for a number of years and ceased his studies in 2012-2013. On his evidence, he did not complete his studies.
Whilst I accept the physical evidence that the applicant has a large scar on his [Body Part 1], I do not accept, on the basis of my credibility findings, that he got this scar from the authorities who attacked him. I have rejected that he was attacked by the authorities and for this reason I also do not accept that he suffered a mental breakdown because of the attack or what he witnessed, nor do I accept that he regularly suffers severe headaches.
The applicant claims that he would be unable to access appropriate food and medical facilities and social supports. I do not accept this claim. The applicant worked when he was in Conakry, and despite his ambiguous evidence on this I find that he supported himself from this work, and I find he could find similar work in the future sufficient to provide food and shelter to him. I accept that in 2014 the applicant had Post Traumatic Stress symptoms. Given I have rejected the underlying claims, I do not accept on the evidence before me that these symptoms would worsen if he is returned to Guinea. I do not accept that he would suffer serious harm from anyone for reasons of his Post-Traumatic Stress symptoms. I do not accept on the evidence before me that he would be denied medical services or treatment for any reason he has claimed or for any reason apparent on the material before me. I do not accept on the evidence before me that he would not have social supports if returned to Guinea – whilst he claims to not have contact with his parents or siblings, I do not accept that this is for any reason to do with his underlying claims. I note also that the applicant indicated that he had two friends, one of whom he lived with in Conakry. I have found above that neither of these friends, nor [Mr A]’s mother, have been abducted and killed by the authorities, and I find therefore that he would continue to have their support if he returned to Guinea.
Despite the late provision of this document, I am willing to accept that the applicant worked in some capacity for [Political Party 1 in] July 2013 on the basis of the ‘mission directive’ document he has provided to the Tribunal, and on this basis I am willing to accept that the applicant was a member of [Political Party 1] at this time, and therefore I am willing to accept that he joined [Political Party 1] in 2008 and volunteered with them. However, as I discussed with the applicant, this document further undercuts his claim to have been ‘in hiding’ from the authorities at this time and I have had regard to this in my credibility findings above. The applicant also claimed to have volunteered with [Political Party 1] in various work such as providing vaccinations, including being heavily involved in 2008 during a cholera outbreak, and at the hearing to have worked with disabled people in a voluntary capacity. I do not accept these claims because when questioned about what he specifically had done he was unable to provide any details, stating vaguely that he taught people how to behave in that situation, how to quarantine and that there were tools and how to conduct and evacuation. I asked why an evacuation if there was an infectious disease outbreak, but the applicant did not respond to this saying instead that you look after them without being infected and isolate the person and use gloves. I found the applicant’s responses about his claimed work to be undetailed, evasive and vague and I do not believe that he has assisted in any disease outbreaks or assisted disabled people in any capacity, with [Political Party 1] or in any other capacity.
Does the applicant have a well-founded fear of persecution if he returns to Guinea?
The applicant fears being killed or otherwise seriously harmed by the authorities for reasons that he was a witness to the massacre, his friends were killed, because of his [Political Party 1] membership and his role as a Doctor/medical professional, which attracts suspicion from the authorities and people in general.
I have found above that I have accepted very little of the specific claims put forward by the applicant. I do not accept that the applicant has witnessed a doctor intentionally killing someone, I do not accept that the applicant witnessed the 28 September 2009 massacre or gave first aid to the victims, that he was searched and beaten unconscious by army or police who took his identification documents. I do not accept that his two friends, and [Mr A]’s mother were killed, for any reason connected with their involvement in helping the victims or for any other reason. I do not accept that the applicant was in hiding or has been wanted by the authorities, nor that the authorities have come looking for him or threatened his relatives or anyone connected to him.
I have found that the applicant was a medical student in Conakry, but did not complete his studies. I accept that he has a scar on his [Body Part 1], but I do not accept his claim of how he acquired it. I accept that the applicant was a supporter and did some work for [Political Party 1] in 2013. I find that the applicant worked loading trucks prior to his departure from Guinea. I have accepted that the applicant has Post Traumatic Stress symptoms. I accept that he has a son but that he does not live with the child or the child’s mother.
I have considered what would happen to the applicant on return as a single male returning to Guinea, who has previously supported [Political Party 1] and has some medical training. I discussed with the applicant country information which indicated that the situation in Guinea had changed considerably. Guinea is a democracy which has held presidential elections in 2010 and again in 2015 and legislative council elections in 2013. The government has made some gains in the rule of law and addressing security force violations, and reports of human rights violations by security forces declined, with authorities demonstrating an increased willingness to investigate and sanction those implicated in violations, notably those which had been widely reported in the local media.[1] A national dialogue between the ruling and opposition parties reduced ethnic and communal tensions and led to a roadmap for long-delayed local elections to be held in early 2017 and the government allowed several opposition demonstrations to take place, thereby improving its respect for the right to freedom of assembly.[2] This information is confirmed in other reputable reports.[3]
[1] Human Rights Watch World Report 2017, Guinea,
[2] Human Rights Watch World Report 2017, Guinea, See United States Department of State Bureau of Democracy, Human Rights and Labor,

In response the applicant did not dispute the above but said that the things that had happened to him before he left in 2013 made him afraid to return. He said that the country needs financing and there will not be any outside help.

I also discussed with him the current situation of [Political Party 1]. The applicant said that he did not know what was happening with [Political Party 1] and its leader back in Guinea. He said because of what happened he was not a member and had no involvement with [Political Party 1] or any political activity in Australia. He said he did not want to be associated with anything like this. I explained to him that the information I had read indicated that [a leader] of [Political Party 1], [Mr C], had been [appointed by the government in a senior role].[4] I noted that the above information might lead me to conclude that as an active member who had been involved in assisting [Political Party 1] in the past the applicant would not now be harmed or face a greater chance of harm for [Political Party 1] membership and any activity he might wish to undertake. The applicant said that if they say that he had sacrificed himself because his life is in danger, he had suffered a lot. Even when he was there he suffered a lot.

[4] [Source deleted].

The applicant claimed that as a Doctor he would be discriminated against because people may be afraid or suspicious of medical professionals, particularly at times of outbreaks of communicable diseases such as Ebola. I discussed this with the applicant and he agreed that he had not completed his medical training. I asked if there was any reason anyone would think he was a part of or connected to the medical profession. He said that the news might get around that he had been a medicine student. I noted that that had been five years ago so this seemed unlikely. He said that that was why he had been saying his life had been destroyed. I noted that I might come to the view that no one on his return would think he was a doctor or associated with the medical profession. He said that they would know, his friends might know it, as well as people in his neighbourhood and all the ones that knew his past. His enemies know his past. I find that the applicant would not be associated with or imputed with being part of the medical profession – he was a medical student but this was five years ago, and I have found above that he was not involved in any capacity in treating disease outbreaks or assisting disabled people. Whilst his friends would be aware of this history, I do not accept that anyone else would be, nor that he would be harmed even if anyone became aware that he used to be a medical student five years ago because this is such a considerable time ago and because the applicant did not work as a qualified medical professional, nor, as I have found, did he work in a voluntary capacity. There is therefore no basis for people to discriminate or be concerned about him as a medical professional because I do not accept people would think he was or impute to him the status of a medical profession given he never worked as one and only studied medicine a number of years ago.

He has also claimed that due to information given to national and international Nongovernment organisations about the events of 28 September 2009 and statistic information on the numbers of injuries and deaths resulting from the government's actions, there is a stigma for the government to silence their doctors and anyone that might have information about such events. I have found above that he is not, and would not be considered to be a Doctor or medical professional or associated with the medical profession, and I have found that he did not witness or assist the victims of the massacre and therefore I do not accept that he will be targeted for harm for any reason connected to these claims.

I find that the applicant could return to Guinea and not face a real chance of harm. As above, I have not accepted that he is of any interest to the authorities, for reasons of his witnessing the massacre, his first aid to the wounded, his status as a medical student or his membership and work in 2013 for [Political Party 1].

On the country information I find that the situation in Guinea is such that the applicant could be a member, and contribute to the work of [Political Party 1] as I find he has done in the past, and not face a real chance of harm, because the political situation has improved from that when he departed, and because [a leader] of [Political Party 1 had been appointed by the government in a senior role] and I consider that this means that members and supporters of [Political Party 1] would therefore have a level of support from the authorities and would not be or imputed to be in opposition to the government. I note that the applicant has not expressed a wish to be politically active on return but if he wishes to do so I find that there is no real chance that he would be harmed for reasons of his political opinion if he wishes to be an active member of [Political Party 1] on return. I find that the applicant can return to Conakry and find work as he did previously, and would be able to support himself. I have found above that he would have social support as he did previously. I accept that the applicant has Post Traumatic Stress symptoms. As above, I do not accept on the evidence before me that he would be denied medical services or treatment for any reason he has claimed or for any reason apparent on the material before me. I do not accept his symptoms would worsen, for the reason above. On the material before me the applicant has been provided with counselling by [Organisation 1] in Australia, but there is no indication of how frequently. I do not accept that if he is returned to Guinea and does not have access to the same standard of medical care as he could access here in Australia, that he will suffer serious or significant harm as a result. The applicant has not claimed that he would be harmed by anyone as a result of his mental health issues and on the evidence before me I do not accept he would. I do not accept, because I have rejected the underlying claims, that his return to Guinea would worsen these symptoms. On the evidence before me I do not accept that these symptoms are so debilitating that they would lead to him not having the capacity to subsist.

I have considered the claims that I accept about the applicant and his circumstances on return individually and cumulatively. I have rejected his underlying claims that he will suffer serious harm for the reasons claimed. I have accepted that he was a medical student at [University 1] for a number of years, and ceased his studies in 2012-2013, I have accepted that he has Post Traumatic Stress symptoms, but I have not accepted that he has anxiety or depression, I have accepted that he has a large scar on his [Body Part 1] but not that he gained it in the manner claimed, I have found he was a member, although did not do the voluntary work claimed, of [Political Party 1] from 2008. I have found he worked in Conakry to support himself and could do so again. Taking into account all of the accepted claims, I find that there is no real chance that the applicant will be harmed for reasons of his actual or imputed political opinion as a member or former member of [Political Party 1]/opposition to government, his membership of the particular social group of former medical students, his Post-Traumatic Stress symptoms, the claimed depression and anxiety (which I do not accept), or for any other reason by the authorities or anyone else on return to Guinea, now or in the reasonably foreseeable future.

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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to Guinea?
It is established that the ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.[5]
[5] MIAC v SZQRB [2013] FCAFC 33.
As detailed above, I have not accepted that there is a real chance that the applicant will be harmed for reasons of his actual or imputed political opinion as a member or former member of [Political Party 1]/opposition to government, his membership of the particular social group of former medical students, his Post-Traumatic Stress symptoms, or claimed anxiety and depression which I do not accept, or for any other reason by the authorities or anyone else on return to Guinea, now or in the reasonably foreseeable future.
I asked if there was any other reason he thought he may be harmed on return to Guinea. He reiterated his claims above which I have rejected that his ex-girlfriend has been threatened because of him and that those who committed and ordered the 2009 massacre have not yet been brought to trial so there is impunity. I have found above that his ex-girlfriend has not been threatened on the basis of my credibility findings. I have found above that because I have found the applicant did not witness or assist the victims and was not found at the scene by that authorities that the fact there is impunity does not lead to a real chance of harm to the applicant.
I have accepted that he is a single male with a child with whom he does not live, that he was a medical student five years ago, and that he has been a member of and done work for [Political Party 1],, and that he has Post Traumatic Stress symptoms. I find that the applicant has not made any further claims to fear significant harm other than those he made in the context of his refugee claims. As above the country information indicates that the political situation has improved in Guinea. I have found that the applicant was previously able to support himself in Guinea. I find therefore that, accepting as above his characteristics I find that there is no real risk that he will be harmed from reasons of his actual or imputed political opinion as a member or former member of [Political Party 1]/opposition to government, his membership of the particular social group of former medical students, his Post-Traumatic Stress symptoms, or for any other reason by the authorities or anyone else as a necessary and foreseeable consequence of him being removed from Australia to Guinea now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Sean Baker
Member

Country Reports on Human Rights Practices for 2017 – Guinea, United Nations High Commissioner for Human Rights, Situation of human rights in Guinea. Report of the United Nations High Commissioner for Human Rights, A/HRC/34/43, 17 January 2017,

[2019] AATA 1341

18 January 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction