1507348 (Refugee)

1507348 (Refugee) [2019] AATA 1340 (18 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507348
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 applicants Protection visas.
Statement made on 18 January 2019 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – Guinea – particular social group – witness of massacre – health professional assisting and revealing details of patients – single mother of non-citizen child – imputed political opinion – human rights defender – 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 first applicant] is a [age] year old woman from Conakry, Guinea. She speaks French and is of the Muslim religion. She claims to fear harm because, as [an intern], she told the media about the 28 September 2009 stadium massacre in Conakry. [The second applicant] is the son of [the first applicant]. He was born in Australia and is [age] years old.
The delegate refused the application for protection, finding that the applicant was not credible in her claims and that she did not have a well-founded fear of persecution, nor that there was a real risk she would suffer significant harm if returned to Guinea. The delegate refused [the second applicant]’s visa as a member of her family unit. The applicant provided a copy of the delegate’s decision to the Tribunal.
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.
The issue in this case is whether either of the applicants has a well-founded fear of being persecuted if they return to their country of nationality, or if there is a real risk of either of them suffering significant harm if returned to their receiving country. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
[The first applicant]’s claims are that:
·When she was a [trainee] she was among a group of [health professionals assisting] the wounded following the stadium massacre of 28 September 2009. They recorded the number of victims. She was asked by the journalists how many were killed and injured and she told the media the number of dead and injured citizens;
·Government officials came and intimidated and pressured the staff to reveal who had spoken to the media. She was pushed against the wall. The authorities pressured other hospital employees and relatives and many lost their jobs as they did not reveal who told the truth;
·She fled to another town because she feared what would happen if the authorities found out she was the source;
·The government does not want the world to know the true scale of its crimes against humanity, or else it would be held accountable in the International Criminal Court. Those responsible are still alongside the present government;
·She has been traumatised by witnessing the crimes committed. She cannot practice as a [Occupation 1] in any reasonable way, she has no profession other than as a [Occupation 1];
·The authorities will not protect her. She fears being raped or killed.
According to the delegate’s decision, the applicant reiterated her claims and responded to specific questions with the assistance of a French interpreter at an interview held on 6 March 2015 and provided the following additional evidence at interview:
·She has one [relative] in Australia. The rest of her family is in Guinea.
·She has had no contact with her family in Guinea since she left. Her family was not aware that she left or that she had intended to travel to Australia.
·The authorities knew that she had disclosed the casualty figures to the media. They found this out on the day of the massacre (28 September 2009). They came and threatened her at work and at home, and pushed her against the wall.
·From that day onwards, she stopped working for over three years. She was very frightened. Every day she heard reports of things happening to friends and relatives.
·On 10 February 2013 she started working in another hospital in a regional area ([City 1], [number] kilometres away from Conakry). She worked 'undercover'. Sometimes government representatives came to the hospital and asked her colleagues where she was. She had told her colleagues not to give away any information.
·She was constantly receiving threats. This was having an impact on her mental wellbeing.
·She did not leave Guinea sooner, despite obtaining her passport in [2008], because she did not have the means. She was living in hiding. If she had exposed herself she would have been killed.
·She knew that she could go anywhere in West Africa without a visa but at the time it was not an easy thing to do. It was too dangerous because 'they' were looking for people.
·While she was in hiding, she met a man named [Mr A] who worked with [disabled] people. [Mr A] knew about her situation because she had been [providing medical assistance to] him. [Mr A] told her the borders were very closely watched and controlled by the military. He told her it was too dangerous to leave immediately but if she remained in hiding he would let her know when the time is right and would help her to leave Guinea.
·Her brother also had a problem with the Guinean authorities. He was a [student in a health related discipline] and was on his way home from university on 28 September 2009 when he came across victims of the massacre. He stopped to assist the victims. Some soldiers saw him and asked him for ID. The soldiers then frisked him and found a membership card for a political party. They beat him with their rifle butts and threatened him. Because of that, he decided to leave Guinea too.
·She and her brother each paid [Mr A] GNF [amount] to arrange their travel to Australia. She had made money from giving people [medical assistance]. She had continued doing this even when she was in hiding and not working at a hospital.
·They travelled to the airport under the cover of night. Their flight departed at 3pm.
·She was not asked any questions at the airport and did not have to pay any bribes. There was a list [of wanted people] but the man who had the list was running late. When the man with the list arrived the plane was already waiting. As soon as the plane arrived she went straight to it.
·She has not been involved in any political activities in Australia.
·She met her husband at a shopping centre when she first arrived here. They do not have a common language but are able to communicate via gestures and sign language.
·Her profession is recorded on her passport as [Occupation 2] because if she had declared that she was a [Occupation 1] the authorities would not have let her go. When it was pointed out to her that her passport was issued before the events which she claims prompted her to leave Guinea occurred, she clarified that generally speaking [Occupation 1] receive threats all the time.
·When asked why the authorities would renew her passport ([in] 2013) if they were trying to capture her, she stated that there is no computerised list of wanted persons in Guinea. Not everyone has a good education; you can renew your passport. She did not personally renew it because she was in hiding. [Mr A] went to get it for her.
·She met [Mr A] through her brother; they were colleagues.
·When asked to clarify why she had said earlier that [she met Mr A through her work], she stated that her brother had told [Mr A] she is a [Occupation 1] and that is why [Mr A] approached her.
·When asked why she thought [Mr A] did not just [approach her brother], she stated that she does not know, she speculated it may be because her brother was only a [student] whereas she was [more qualified].
·She added that [Mr A] contacted her to assist 'their' organisation, and she helped 'them'.
·Notes on departmental systems indicate the applicant applied for a Visitor visa so that she could attend an [international conference]. She clarified that she only used this as a pretext to get this visa; she did not attend the conference.
The applicant provided to the Department three photographs, a newspaper and several articles about the massacre.
The applicant was sent a list of concerns by the delegate to which she responded. Where relevant these have been set out below.
No individual claims have been made on behalf of her son, applicant two.
To the Tribunal the applicant provided further detail about her claims in a statutory declaration, in which she claims:
·She married her husband in October 2014. He is a [Country 1] citizen and they have a son, the second named applicant;
·She did not have a proper interpreter when completing her visa application and statutory declaration, and describing herself as a [Occupation 3] was a translation error. Her native language is Sou Sou and French is her second language, and inconsistencies may be due to this;
·She explains that the faculty in Conakry requires you to nominate which specialty you will study, she chose [Discipline 2] as this was the best way to ensure a career if you did not get into [Discipline 1]. Because of this, when applying for her passport in 2005 she put her profession as [Occupation 2]. Then the issuing of her passport was delayed, first by her agent travelling and then because the government was not issuing passports and her passport was finally issued in [2008];
·She became [an intern] at [Hospital 1] and in her university holidays she worked as an intern. She remained an intern and did not get her full [qualification];
·She finished her coursework in [date] and was then required to spend [number] months in a [rural village] at [Town 1];
·She then returned to Conakry in July 2009 and commenced a further internship at [Hospital 1], and because of this did not complete her report for her placement at [Town 1];
·She describes what occurred on the day of the massacre, 28 September 2009 when she was working at the hospital. She said bodies started to arrive at about 1pm. Journalists arrived and asked what happened at the stadium and about the rape of women. The applicant told them what she knew at the time which was the number of dead and wounded and gave them her name. her name was mentioned [in the media] by a journalist;
·Two hours after her name was reported a group of army men came to the hospital demanding where she was. She was pushed back into the room and her colleagues were grabbed and demanded where was [the first applicant]. The applicant said ‘I do not know her’. After this she fled from the hospital. She did not go home but to a relative’s in [Town 2], a small town. She spoke to friends from the hospital who said the army locked down the hospital from 4 – 6pm and searched it thoroughly. Several times after this the authorities came to the hospital to look for her and threatened that they would kill her;
·She did not go straight to the village but to a place called [Town 2], then to [City 1] where she stayed in hiding for several years;
·When she was in hiding she did not try to work because of the risk but also because she felt traumatised;
·When Alpha Conde was elected in 2010 she decided to start working, she worked first at [Hospital 2 in City 1] but as she needed a [more senior person] to supervise her, she decided to return to work at [Hospital 1] in the middle of 2013. After about two weeks military officers came to the hospital and asked after her. A few days later gendarmes came and asked about her;
·She then fled Guinea with the help of [Mr A]. [Mr A] renewed her passport;
·She fears those who undertook and were behind the stadium massacre, many of whom have not been held to account. She fears she will be identified by authorities given the part she played during the massacre and detained, tortured, beaten or killed. She would be too afraid to work and would live in constant fear;
·She cannot go to any ECOWAS countries;
·Her husband has a [Country 1] passport only. He is originally from [Country 2]. She cannot go to [Country 2];
·She suffers from mental health issues. She has not sought professional help but her [training] allows her to recognise symptoms of anxiety and depression.
The attached submission outlined her claims, addressed the issues in the delegate’s decision, and provided legal submissions, in particular that the applicant formed a member of a particular social group of [Occupation 1] assisting and revealing details of [the casualty] following the 2009 massacre and human rights advocates/defenders in Guinea as well as her actual or imputed political opinion.
Also included was a [certificate] issued from [Hospital 1] and certificates regarding the applicant’s attendance at [University].
At hearing, two news reports which discussed the Guinean passport shortage in 2013 were provided.
After the hearing a submission was provided which responded to the concerns raised at hearing. The applicant provided a statutory declaration (the subsequent statutory declaration) and her schooling certificates. The applicant’s husband provided a statutory declaration, his passport and educational certificate.
Identity and nationality
[The first applicant]
[The first applicant] has provided a copy of her Guinean passport. On the basis of this evidence I accept that she is who she claims to be and is a citizen of Guinea. [The first applicant] is married to [Mr B], a [Country 1] citizen. At the hearing [the first applicant] said she had not explored whether she could seek a [Country 1] visa on the basis of her marriage to a [Country 1] citizen.
[The second applicant]
I have had regard to the Australian birth certificate of [the second applicant] on the Department file, who I find was born to [the first applicant] and her husband, [Mr B], who is a [Country 1] citizen. [The second applicant] is therefore a citizen of [Country 1], as found by the delegate. [1]
[1] [Source deleted]
I find on this basis that [the second applicant] is a national of [Country 1], which is also his receiving country.
No claims have been raised by [the second applicant] against [Country 1] as his country of nationality.
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 undertaking the hearing I dealt with the applicant as a vulnerable witness, allowing for minor deficiencies in her evidence. In assessing her claims and credibility, I have taken account of the claimed trauma that she has suffered in [providing assistance to] those killed or injured in the massacre and in being pursued by the authorities. However, I place no weight on her self-diagnosis of having symptoms consistent with anxiety and depression, these serious illnesses require a trained professional to make a diagnosis or to indicate that symptoms are consistent with such diagnoses – the applicant, on her evidence, has [specified qualifications]. I do not accept that she has the training or experience to diagnose herself with these symptoms of serious mental illness. The applicant at hearing was able to respond appropriately to questions and I find that she was able to participate meaningfully in the hearing.
Having addressed her claims as sensitively as possible at the hearing, and given the applicant the benefit of the doubt wherever possible, I developed doubts about the applicant’s evidence at the hearing in relation to key aspects of her claims. I discussed these concerns with her at the hearing and have had regard to her responses as well as the post hearing submission, statutory declaration and documents. 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 her evidence and relate to multiple instances of significant difficulties with that evidence, as set out below.
The applicant claimed to the delegate that French was a second language for her. Whilst I have taken this into account in my assessment below, the applicant did not raise any difficulties with expressing herself at the hearing or after. At hearing the applicant was able to respond to questions and her responses engaged with the questions, and I consider that this is indicative that she was able to understand what was asked of her and respond in an appropriate manner.
Inconsistencies in her schooling and claimed profession
The applicant claims to have been [employed in a specified role] at the time of the massacre. There are several difficulties with this claim that her evidence presents.
Firstly, the applicant has been inconsistent in her years of schooling. In her protection application it states that she attended primary school from [date] until October [date], and then secondary school from [date] to [date]. It states she then attended [university] but there is no date.
When I asked the applicant at the hearing how many years of education she had undertaken she said 4 years at high school. She then said that she had done [a specified] year twice. She said she had done six years of primary school and four years of high school. She said after high school she went to University in [year]. I then discussed with her the information in her protection application as set out in the above paragraph. She then said that she had done the [number] year and the [number] year twice. I asked what year she had finished high school and she said [year]. I asked why her protection application said [a different year]. She said that this was not the case. I noted that the information in the protection application appeared to match with what she had first told me at the hearing. She said that was an error.
After the hearing the applicant supplied documents, and an explanation in her further statutory declaration. She provided a school certificate from [Primary School], which certifies that the applicant attended school from her 1^st year in [year] until her 6^th year in [year]. The second document is her school certificate from [High School 1], which indicates she started school in [year] and finished in [year], a total span of nine years. The document indicates that the applicant undertook grade [number] twice, and grade [number] twice, and that [year] was a ‘final year’.
The applicant explains in her statutory declaration that she now realises that the information in her protection application was inaccurate, and her previous agent left off her final years of schooling because she had misinterpreted what was meant by secondary school. She said that in Guinea they made a distinction between middle school and high school. When asked how much higher school she had completed she said she had completed four years because she understood this to be the senior years, and not also her middle school years. In a table she sets out that she attended primary school from [year] – [year], middle school from [year] to [year] and high school from [year] to [year]. According to the table, she did her middle and high school at different institutions – [High School 1] and [High School 2].
There are several difficulties with this explanation. Having reviewed the hearing I have some doubts that the applicant did not understand what she was being asked, which was how many years of education she had undertaken. Even if she had been confused, I consider that there was sufficient scope given for her to explain the discrepancies, which she did not do. The explanation is also not internally consistent – she says that she thought she was speaking only about high school, i.e. years 11- 12, yet in discussing the discrepancy she said she had undertaken year [year] twice, part of middle school. The other concern is that the table does not appear to match with the school certificate from [High School 1], which states that the applicant has attended his school from [year] to [year]. According to the table in her statutory declaration, she attended [High School 1] from [year] to [year] and [High School 2] from [year] – [year].
Having carefully considered the applicant’s explanations and the documents, I continue to have concerns with her schooling history and the years she was at school. This leads me to have concerns with whether she attended and graduated university when claimed, and was an intern when claimed, it also leads me to have doubts about her general credibility and the credibility of the documents supplied.
Secondly, the applicant has provided voluble and lengthy but, I find, unconvincing explanations for why her passport lists her profession as [Occupation 2] rather than [Occupation 1] as she has claimed her profession to be.
First raised by the delegate, the applicant responded at interview with the delegate that her profession is recorded on her passport as [Occupation 2] because if she had declared that she was a [Occupation 1] the authorities would not have let her go- when it was pointed out to her that her passport was issued before the events which she claims prompted her to leave Guinea occurred, she clarified that generally speaking [Occupation 1] receive threats all the time, according to the delegate’s decision. Having reviewed the interview recording, this is an accurate indication of her evidence at that time. At this time she did not provide any explanation that she was a student and had put [Occupation 2] because this was the course she had enrolled in at that time when she was hoping to get into [Discipline 1, which would qualify her as an Occupation 1].
When the concern was raised with her after the interview in a letter from the delegate the applicant then provided a different explanation. She said that she had recorded her profession as [Occupation 2] because she enrolled in [Discipline 2] at the end of her second year in the hope she could get into [Discipline 1]. She did not know if she would get into [Discipline 1].
In the statutory declaration sent prior to the hearing, the applicant said that the [faculty] requires you to nominate which specialty you will study, she chose [Discipline 2] as this was the best way to ensure a career if you did not get into [Discipline 1]. Because of this, when applying for her passport in 2005 she put her profession as ‘[Occupation 2]’. Then the issuing of her passport was delayed, first by her agent travelling and then because the government was not issuing passports and her passport was finally issued in December 2008.
At the Tribunal I asked her about the apparent inconsistency in her explanation to the Department at interview and her subsequent explanation. She said that when she explained it to the department, she did not understand the question. She thought he had asked her why she travelled on a passport that said [Occupation 2]. I asked why she had not put her occupation as ‘student’ if this was true when she applied for her passport. She said she did not put student because if she had put student then it would not be accurate if she had gone to [Discipline 2] and already put down student, she would have to redo her passport. The reason she had put [Discipline 2] was it was her first choice.
In her further statutory declaration, provided after the hearing she says in relation to this issue that it was true that she was not a [Occupation 2] when she obtained her passport, but she anticipated she would be, as it was her first choice of specialisation at the time. She was only a student at the time but she knew she would not be renewing her passport for some time as it is difficult to renew and she did not want to have her passport inaccurately indicate she was a student at a later time, she therefore put [Occupation 2]. Her husband also did the same.
I have also had regard to her husband’s statutory declaration and supporting documents in which he explains that he placed his profession on his passport even though he obtained his passport when he was a student.
I have considered the applicant’s explanations and the evidence from her husband. In relation to the question of why she did not record her occupation as student, I have some concerns with the explanation – whilst her husband put a profession whilst studying his masters, it is not clear from his statutory declaration or the information he has provided whether he was previously employed or was studying undergraduate immediately before starting his masters. Therefore it is unclear whether the applicant’s situation is completely analogous to his. However, putting these doubts aside, I am willing to accept this as an explanation for why she did not place ‘student’ on her passport application. However, I remain concerned about why she provided differing explanations at the Department interview and subsequently. I do not accept the explanation she gave to me that she did not understand the question and thought the delegate had asked her why she travelled on a passport that said [Occupation 2], because the question and her response appear to indicate that she understood the question to be why her passport contained the profession of [Occupation 2] when she had claimed this was not her profession. I do not accept that the applicant has given different answers to what she believed were different questions - I find she has given different answers to the same or similar questions, which go to why the profession recorded on her passport does not match her claimed profession, and find that I cannot rely on her explanations as to why her profession is recorded as a [Occupation 2] on her passport. I find that both explanations she has given are also implausible – the first, that she placed [Occupation 2] so as to avoid detection by the authorities suffers from the issue identified to her by the delegate - that she got her passport before she claims to have been of interest to the authorities, nor is it plausible that she did not put [Occupation 1] as they are generally discriminated against, or that they receive threats all the time – the applicant has not provided any independent evidence to support this claim and I therefore do not accept it. The second explanation is elaborate, involving strategies of becoming a [Occupation 1] by putting [Discipline 2] down, but appears in its complexity to be contrived – if the nomination in her passport application in 2005 was an indication of her intended profession rather than her actual status as a student they why did she not put down [Occupation 1] if this was her intention at that time? But more significantly, her explanations of the timing and the claimed delay of the application and issuing of the passport are also complex and strongly indicate that she has provided a further detailed and complex explanation to fit this into her claim. I find this explanation implausible in the sense that it appears to me to be an explanation constructed to fit the identified problem rather than one based in reality. I do not accept that she would apply for a passport and be granted it three years after application, that her agent would travel for an extended period in 2005/2006 and she would not make a further application in his absence. I note the articles in relation to passport shortages in 2013 in Guinea but this does not establish that such shortages were present in 2008. I consider that the most likely and plausible explanation is that the applicant placed [Occupation 2] on her passport as this is what her profession actually was at that time, taking into account the implausibility of both of her explanations and my finding that she has been inconsistent in these explanations. Having considered her explanations I continue to have concerns with why she placed ‘[Occupation 2]’ on her passport when she has claimed her profession was [Occupation 1]. This leads me to have doubts about whether she attended university and graduated when claimed, and along with my concerns below, with whether she was present at the hospital on 28 September 2009 as [an intern]. It also leads me to have doubts about her general credibility.
Concerns with the “Attestation de Stage” document
The above concerns are further deepened by the difficulties with the document the applicant provided prior to the hearing. The Attestation de Stage, translated as ‘training certificate’, is signed by [Mr C] and dated 28 September 2009 and indicates that the applicant completed her internship from [August] to 28 September 2009.
At the hearing the applicant said that [Mr C] was not there on 28 September, it was not his work day and he was not there, she only spoke to [Supervisor D], who had left before the wounded arrived at around 1pm. She said [Mr C] came in on Mondays. I asked was not 28 September 2009 a Monday and she then said he did not do rounds that day. She said she did not see [Mr C] that day but he might have come into his office early. I asked if she had finished her internship and she said it was [supposed] to start [in] August and finish on 30 September 2009. She confirmed she was supposed to stop on the 30^th. She said that the training certificate had been obtained by a friend of hers. I showed her the certificate and noted that it was signed and dated 28 September 2009 rather than the date she claimed she was supposed to finish, the 30^th, and asked why this was. She said this was because she had stopped working on the 28^th. She talked at length about the process for picking up the training certificates. I noted that if this was the case how was [Mr C] aware that she had stopped working on the 28^th and put this as the end date of her training on the certificate if she had not seen him that day. She said that [Supervisor D] helps [Mr C] and he would tell [Mr C] the actual date because there is a register you write down your attendance. I noted she had said that [Supervisor D] had left and had left her in charge before the wounded started coming in and she had had to flee the hospital. She said [Mr C] might have been in his office early and, anticipating she would finish, had signed the certificate. I said that I might accept this but if this was the case why had [Mr C] not put her expected completion date of 30 September rather than 28^th. She said she had told her friend she was supposed to finish on the 30^th, and her friend said that “[Supervisor D] has just given it to me”. And the applicant said she asked her friend why he had signed on the same day, and [Mr C] may do that so he can free the students, he needs to do that quickly in order not to prevent ones that can come. She said he may have had other certificates, and he may group them all at once and may finish before you do.
The post hearing submission noted that this matter was explained in the applicant’s further statutory declaration.
In her further statutory declaration the applicant claims that she spoke to [Supervisor D] who said [Mr C] had signed the certificates on the morning of 28 September and had given them to [Supervisor D] to give to the interns on 30 September as [Mr C] was away for a seminar until [date]. The certificates were then locked in a safe and the applicant was only able to obtain hers recently with the help of her friend getting them from [Supervisor D]. Attached is a confirmation certificate from [Supervisor D] which in translation confirms the applicant did a practical training course from [August] to 28 September 2009 and that [Mr C] had to attend a training seminar from [date] to [date] so he signed the documents early on 28 September.
The difficulty with this explanation is that it might explain why [Mr C] signed the document on 28 September, but as I explained to the applicant, this explanation does not appear to explain why the training certificate signed by [Mr C] before he could have been aware that the applicant would cease work that day, two days before she was due to, indicates that her internship finished on 28 September. According to the claim made by the applicant and the letter from [Supervisor D], [Mr C] signed this certificate on the morning of 28 September, before the massacre and the events that the applicant claims led her to flee the hospital and cease working there.
I therefore reject this explanation of the inconsistencies between this document and her claimed completion date and I find that the training certificate is a fraudulent document. This leads me to doubt that the applicant did undertake an internship in [Hospital 1] as claimed, on these dates or any others. It also leads me to have grave concerns for her general credibility and the accuracy and reliability of other documents she has provided, including the recent letter from [Supervisor D].
Difficulties with her description of what happened to her on the day of the massacre
Deepening my concerns about her claimed time as [an intern] at [Hospital 1] in September 2009, I developed my concerns with her claims when we discussed her claims to have been present on the day of the 28 September 2009 massacre and to have provided information to journalists that was then broadcast, leading to her being searched for by government forces.
The applicant provided copious, voluble evidence on her functions at the hospital and her actions on the day. Many of her responses were not addressed to the question but appeared to be extraneous information. I hold concerns that she provided such information to occlude the issues with her responses to the actual questions. I have had regard to the post hearing submission that such responses may be due to nerves, seeking to provide context, cultural differences and communication style via an interpreter but I am not persuaded. Whilst I accept that if the applicant had in fact been at the hospital on that day it would have been a busy, anxious and traumatic time, and for that reason her recollection may not be accurate, her responses on questions such as why she had not sought the number of casualties from the emergency department, and why the journalists asked her for the number of wounded and dead rather than someone in emergency were, I find, not plausible.
In relation to the number of beds in her department, I asked her how many beds and she explained the number of rooms and the beds in each. I then asked her how many beds there were and she said 50. I noted that the answer she had earlier given added up to 35, and asked why the discrepancy. She said that beds could be brought in and that there was usually 35 but on the day of the massacre there were 50. She has repeated this explanation in her post hearing submission. I do not believe that the applicant was answering two separate questions or thought that she was at the hearing, but I am willing to accept her explanation.

However, in relation to the other concerns raised I do not accept her explanations. I noted to her at the hearing that it would appear to be more plausible that journalists would ask someone in emergency how many dead and wounded there were from the massacre. She said that the journalists might have just been walking by, what she knows is that she saw the journalists come, she was at the intern’s office completing forms and they asked her and she told them there were [number] wounded. She then said that she went to the morgue to determine the number of dead and told the journalists there were [number] at that time. I asked, if she had gone to the morgue why had she not gone to the emergency department to determine how many people were there. She gave a variety of answers including that the morgue was closer and that she had spoken with a friend from the emergency area but her friend had not told her the number of people there. I noted to her that it seemed strange that she had not said to the journalists that they should check the emergency department rather than give them numbers of wounded and dead herself. She said she hadn’t thought that it would get her in trouble, otherwise she would have. In her post hearing statutory declaration the applicant claims that it was easiest for the journalists to have come into the hospital through the University which led past [her Department].
I note here that, as I expressed to the applicant, her claims of what happened on the day appear at odds with the country information. In the detailed and comprehensive Human Rights Watch report on the tragedy they [note that the hospital staff claimed that there was a much larger number of wounded]:
[Information deleted].[2]
[2] [Source deleted].
The applicant said that the wounded arrived at 1pm and the journalists after 40 – 45 minutes. According to the above country information however, this indicates that there were [approximate number] of wounded at the hospital within the first hours. This appears to me to create additional problems with the applicant’s evidence that she provided a response to the journalists that there were [number] wounded and [number] dead because this appears to be a small fraction of those having arrived by that time at the hospital. When I discussed the country information with the applicant she said that the [large numbers] that have been stated did not come before her, the [number] she registered, that was what she knew, the [large numbers] might have come in, maybe after she left. She said after she left she doesn’t know how many came in.
It does not seem to me plausible that the applicant would not have been aware that there were many more wounded than the figure she gave the journalists. Nor do I accept that it would not have occurred to her to direct them to the emergency department if they wished to know the numbers of wounded. It seems bizarre in this context that she took the trouble to go to the morgue but did not go to emergency. Again, the applicant has provided lengthy explanations for the identified concerns but I do not find these plausible.
These concerns add to the difficulties with her evidence identified above. Whilst these concerns alone would not lead me to disbelieve her claims, taken together with the concerns above, I find that the applicant was not [an intern] at [Hospital 1] in September 2009 or at any other time, and that she was not present at the hospital on 28 September 2009. It also leads me to doubt her general credibility and to place little or no weight on her other claims and the documents which she has supplied.
Difficulties with her claims to have been in hiding and sought by authorities and her passport
A further concern that arises on the evidence is the period of time which the applicant spent in Guinea after 28 September 2009 until her departure [in] November 2013 without any harm coming to her. She claims that she was in hiding for a period, started working at [Hospital 2] some time after the election of Alpha Conde, and then resumed working at [Hospital 1] in mid-2013. Weeks later, the authorities came to the hospital seeking her.
I find these claims internally inconsistent. The applicant claims to have lived for most of this time in [City 1], where her family live and where she grew up. Yet the authorities did not locate her, but only when she resumed working again. She claims she was threatened by the authorities in June 2013 but clarified that they came and made inquiries when she was not there, that they had come twice. I do not accept that if the authorities had been wanting to find the applicant they were unable to find her in her family village where she grew up, yet were able to find out and come looking for her within weeks when she started working at the hospital. I consider that the period of four years between September 2009 and her departure from Guinea in which she says she was not located or detained or harmed by the authorities leads me to have further concerns with her claims to have been, and to still be, of interest to the authorities for the reasons she has claimed or any other reasons.
The applicant has also claimed that she was able to have her passport renewed, in Conakry. She claims that this was done by a friend/associate, [Mr A]. However, as raised by the delegate, I have concerns with whether it is plausible that this could have occurred – even if, as claimed, [Mr A] was able to renew another person’s passport, if the applicant was of interest to the authorities I do not accept that they would have renewed her passport.
Conclusions on credibility
I have considered the above, individually and cumulatively. I have found that the applicant has been untruthful about key aspects of her claims. Looking fairly at all of the evidence before me, taking account of my findings above I find that the applicant has deliberately and systematically lied in order to manufacture and strengthen her claims for protection. When defects in her story are raised with her, the applicant has provided a great deal of detail, but this does not in fact, as demonstrated above, address the concern identified to her. I have carefully thought about whether the detail itself may indicate that the applicant is telling the truth but having difficulty addressing identified concerns, but I do not believe she is – these concerns have been raised with her multiple times and have been addressed by her orally and in writing and the significant deficiencies remain. Having spoken with her at length I have formed the strong view that the detail she provides is pure invention. I find, given the significance of the issues identified above and their centrality to her claims, that the applicant is not a witness of truth and is not credible in her evidence.
Given this significant credibility finding, as well as my findings about the Attestation de Stage document this also leads me to place less weight on the other documents she has provided.
On the basis of my credibility findings I find that:
·The applicant was not ever a [Occupation 1], trainee [Occupation 1] or [intern]; consequently I do not accept that this is her profession and I do not accept that she is unable to practice this profession;
·The applicant was not involved in treating the wounded following the stadium massacre of 28 September 2009, either as [Occupation 1], [Occupation 3], or in any other capacity;
·I do accept, largely on the photographs provided, that at least in 2013 the applicant was working as a health professional or allied profession – most likely as [Occupation 2] given her passport. However, given my credibility findings above, I do not accept that, in this role, she had any involvement in the events of 28 September 2009 in any capacity; I find therefore that she is not a witness, nor does she have any specific knowledge of this event;
·Consequently, I do not accept that she gave the number of dead and wounded to journalists and that this was then reported. I do not accept that her name was reported or broadcast;
·I do not accept that the army, police, or anyone else came to the hospital seeking her out after this; I do not accept she was pushed against a wall or that the authorities pressured hospital employees or anyone lost their job for the reason that the authorities were looking for her; I do not accept that she has been threatened by the authorities at work or at home for this reason;
·I do not accept that she fled the hospital and went to [Town 2] and then [City 1] in hiding or fleeing the authorities; I do not accept that she stopped work for the claimed reasons; I do not accept that she was living in hiding at any time;
·I do not accept that she worked as [Occupation 1] in [City 1] in 2013 or at any other time, or that she returned to work as a [Occupation 1] in Conakry – as above, I find that she was not ever a [Occupation 1, or trainee Occupation 1]. I do not accept that authorities came looking for her at [Hospital 2] or at [Hospital 1] in 2013 or at any other time;
·I do not accept that she has been traumatised by these events;
·I do not accept that she has been threatened in any way, at any time;
·I do not accept that she required the assistance of [Mr A] or anyone else to renew her passport or to depart Guinea; I do not accept the authorities were looking for her and that she had to take any special steps to avoid detection at the airport;
·I do not accept her claims about what happened to her brother are true and therefore I do not accept that any of these claims would have an impact on the applicant;
·I do not accept that she has had no contact with her family in Guinea or that they are not aware that she has left or of her current circumstances;
·I accept that the applicant has not been involved in any political activities in Australia;
·I accept that the applicant married her husband, a [Country 1] citizen, in 2014 and that they have a child, the second applicant, who is a [Country 1] national;
·I do not accept that she has been of interest to the authorities in Guinea at any time, for the reasons claimed or any other reason;
·I do not accept the applicant has any mental health issues –self-diagnosed or not.
I have had regard to the photographs the applicant provided to the Department, from two dates in June 2013. As above, these lead me to accept that the applicant worked as a health professional or allied profession at this time, but it does not lead me to accept that the applicant was a health professional at the time of the stadium massacre in 2009, nor does it lead me to accept that the applicant was ever [working or training as an Occupation 1].
I have had regard to the certificates provided at the same time as the Attestation de stage discussed above. Given my finding that the Attestation de stage document is fraudulent, I can have no confidence that the certificates provided at the same time, said to be from people at the [specified] University, are genuine and I place no weight on these documents and I find that they do not establish or assist in establishing the applicant’s claims.
I have had regard to the school certificates, but as above, I also have concerns with the genuineness of these documents, as discussed above, and I place no weight on them as establishing or assisting in establishing the applicant’s claims.
I have carefully considered the attestation de confirmation, said to be from [Supervisor D] at [Hospital 1]. This document does not address the concern raised with the applicant. Further, given my concerns with the attestation de stage said to also have been provided from the hospital, I can have no confidence that this document said to be from [Supervisor D] is genuine and I give this document no weight in establishing or assisting in establishing the applicant’s claims.
I have had regard to the articles the applicant provided to the Department and the Tribunal. I have considered country information in my assessment below.
I accept the statutory declaration and the documents supplied by the applicant’s husband, but for the reasons above these do not assist the applicant’s case.
Does the applicant have a well-founded fear of persecution if she returns to Guinea?
The applicant fears she will be identified and detained, beaten, tortured, raped or killed or otherwise seriously harmed by the authorities given the part she played during the massacre and would be too afraid to work and would live in constant fear for reasons of her status as a witness of massacre/[health professional] assisting and revealing details of patients following the 2009 massacre. She also fears harm due to her actual/imputed political opinion, as a human rights defender, as a health worker, and as a woman. She also fears harm as the mother of a non-citizen child. No specific claims have been made on behalf of applicant two.
Above I have rejected most of the claims made by the applicant. I do not accept that she witnessed or played any part in the 2009 massacre or aftermath as a [Occupation 1 or intern] and revealing details of patients or on any other basis. I have not accepted that she has been sought by the authorities or that she is of any interest to them for any reason. She has not claimed any actual or imputed political opinion in Guinea or Australia on any other basis and therefore I do not accept that she will have an actual or imputed political opinion against the government or authorities on return to Guinea. I do not accept that she has been threatened by the authorities or anyone else and consequently I do not accept that she would be too afraid to work and would live in constant fear for any reason. As I have rejected her claims to have been a witness or to have played any part in the aftermath of the massacre, I do not accept that she holds or would be imputed to hold the status of a human rights defender.
I have found that the applicant was in 2013 working as a health professional or in an allied profession – most likely as a [Occupation 2] given her passport. I do not accept on the evidence before me that health professionals are harmed for this reason alone. There is some suggestion that health professionals who assist in outbreaks of infectious diseases such as ebola may face a risk of harm during outbreaks – the applicant has not claimed to have assisted in any outbreaks nor to have been a medical professional who would assist with outbreaks and I do not accept that the applicant, were she to return and work in the health profession or allied profession she was working in in 2013, has any real chance of being harmed for this reason.
I accept that the applicant is a woman, and would be returning to Guinea as the mother of a young non-citizen child. She claims that her husband cannot return with her. I do not believe that this is true, but even if it is, and the applicant would return as a single mother to Guinea, I do not accept that she would face a real chance of harm for reasons of her gender as a woman or her status as a single mother. She has not claimed to have been harmed in the past as a woman. I have found above that she does have contact with her family. The applicant has not provided any independent evidence that she or her son would be harmed as a result of her returning as the mother of a non-citizen child. I find that she could return to Guinea with her son, and rely on her family for assistance with child care. I find that she could once again work as a health professional or allied profession as she did in 2013 and would be able to support herself and her son. I do not accept therefore that there is any real chance the applicant, given what I have found of her circumstances on return, would be harmed for any reason as a woman and as a single mother on return.
I have considered what would happen to the applicant on return as a woman and as a single mother returning to Guinea, who has previously worked as a health professional or allied profession. 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.[3] 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.[4] This information is confirmed in other reputable reports.[5]
[3] Human Rights Watch World Report 2017, Guinea,
[4] 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 this but said that everything she had said about the situation prior to her departure was correct, and that since then things have changed in the country. She said the country needed financing. She said she did not want to return because of what happened to her which makes her feel sick. She said the people responsible for the massacre have still not been tried.

I find that the applicant could return to Guinea and not face a real chance of harm for any of the reasons identified or any reasons discernible on what I have accepted. As above, I have not accepted that she is of any interest to the authorities, for any reason claimed.

On the country information I find that the situation in Guinea is such that the applicant could return and live and work as a health professional or allied professional safely and not face a real chance of harm for this or any other reason.

I have considered the claims that I accept about the applicant and her circumstances on return, individually and cumulatively. I have rejected her underlying claims that she will suffer serious harm for the reasons claimed. I have accepted that she worked as a health professional or allied professional in 2013, and would return as a woman and single mother. 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 her actual or imputed political opinion as a witness of massacre/[Occupation 1] assisting and revealing details of patients following the 2009 massacre, a human rights defender, a health worker or for any other reason, nor for reasons of her membership of the particular social groups of woman or single mother, or for any other reason by the authorities or anyone else on return to Guinea, now or in the reasonably foreseeable future.

Applicant two

I find that [the second applicant]’s country of nationality is [Country 1]. No claims have been advanced that he would be harmed if returned to [Country 1]. I find on the evidence before me that there is no real chance of [the second applicant] suffering serious harm for a Convention reason in [Country 1] if he returns there now or in the reasonably foreseeable future. I find that [the second applicant] will not suffer harm if returned to his country of nationality, [Country 1].

No claims have been made specifically for applicant two if he returns to Guinea with his mother. I do not accept on the material before me that there is any basis to conclude that he will be seriously harmed by anyone for any reason if he returns to Guinea. I accept that the best interests of the child and the principle of family unity suggest that he not be separated from his father, but (even if his father does not return with the family, which I am doubtful of) I do not accept that this leads to applicant two suffering serious harm for a Convention reason.

For the reasons given above, the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicants do 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 she 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.[6]
[6] 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 her actual or imputed political opinion as a witness of massacre/[Occupation 1] assisting and revealing details of patients following the 2009 massacre, a human rights defender, a health worker or for any other reason, nor for reasons of her membership of the particular social groups of woman or single mother, or mother with a non-citizen child, 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 she believed she may be harmed on return to Guinea. She reiterated her claims above and did not identify any new basis. I have rejected the main claims made by the applicant above.
I have accepted that she was working as a health professional or allied professional in 2013, and that she would return as a woman and a single mother of a non-citizen child. I find that the applicant has not made any further claims to fear significant harm other than those made in the context of her refugee claims. As above the country information indicates that the political situation has improved in Guinea. I find that the applicant could support herself and applicant two on return. I find therefore that, accepting as above her characteristics I find that there is no real risk that she will be harmed for reasons of her actual or imputed political opinion as a witness of massacre/[Occupation 1] assisting and revealing details of patients following the 2009 massacre, a human rights defender, a health worker or for any other reason, nor for reasons of her membership of the particular social groups of woman or single mother or mother of a non-citizen child, or for any other reason by the authorities or anyone else as a necessary and foreseeable consequence of her being removed from Australia to Guinea now or in the reasonably foreseeable future.
Applicant two
The Tribunal has carefully considered the situation of applicant two. As above, the Tribunal finds that applicant two can return to Guinea as a citizen of [Country 1]. I find that applicant two is a national of [Country 1], which is also his receiving country. No claim has been advanced or is one discernible that he will suffer significant harm if he is returned to [Country 1]. I find that there is no real risk that applicant two will suffer significant harm if returned to [Country 1], now or in the reasonably foreseeable future.
However, as above, I find that he will return to Guinea with his mother. But I do not accept on the material before me that there is any basis to conclude that he will be significantly harmed by anyone for any reason on being returned to Guinea. I accept as above that the best interests of the child and the principle of family unity would suggest that he not be separated from his father, but I do not accept that this leads to applicant two suffering the significant harm as defined because I do not accept that this would be intentionally inflicted, that is that it would be an intended consequence of his removal.
The Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that either 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, neither applicant satisfies the criterion in s.36(2).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
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 1340

18 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction