1508333 (Refugee)

1508333 (Refugee) [2017] AATA 3071 (28 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1508333
COUNTRY OF REFERENCE:                  Cameroon
MEMBER:Rodger Shanahan
DATE:28 April 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 28 April 2017 at 11:59am

CATCHWORDS
Refugee – Protection visa – Cameroon – Social group – Homosexual – West Cameroonian prince – Married to save mother’s life – Member of an opposition political party – Victim of physical assault – Credibility concerns
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Cameroon, applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] May 2015.
The applicant appeared before the Tribunal on 16 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], and [Brother B]: The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant claimed to have been attracted to the same sex since childhood. In Cameroon gays are rejected by their families and the population. He decided to leave the country because his life was in danger because he was gay and because he was a member of an opposition political party. A warrant for his arrest had been issued.
He had his first sexual contact when he was [age] with a person called [Mr C]; the relationship lasted six years. A year later he met [Mr D] and was in love with him for six years. Three years after their relationship began the applicant began to receive threats from his family because of the relationship, and he was abandoned by his family as a result.
His family then forced him to marry a woman of their choice according to local custom. He accepted this in order to avoid the evil that could befall his entire family. He was married [in] December 2008 to [Ms E], but he continued to meet his lover [Mr D]. His wife felt abandoned and complained to the applicants’ parents about his changed behaviour to her – he had not confided in her that he was homosexual, as he had told his parents that he had stopped being gay.
One night [Ms E] discovered the applicant’s relationship with [Mr D] and told the applicant’s parents. [In] February it was [Mr D’s] birthday and the applicant went to [Mr D’s] house about 5 pm after work and headed to a nightclub. They were kissing each other but unknowingly were being followed by [Ms E]. Suddenly they heard shouting and lots of people arrived. After [Ms E’s] explanation, people began calling them names, encircled them and beat them in such a way that [Mr D] lost his life.
No person was arrested other than the applicant and taken to a police station. His body was covered in blood, he was put in a cell and insulted. [A human rights group] in Central Africa were informed, as was the association for gays and lesbians. They came to the hospital with his lawyer and gained his removal to a hospital. A police officer was posted to keep watch on him. He went to the hospital covered in blood, almost dying and with his left knee almost broken. He stayed in the hospital for two weeks in intensive care.
The policeman at his door was changed from time to time. He began to recover a little and a nurse helped him to escape through a window on the night [in] March 2014. He went to the house of a gay European friend ([Mr F]) who lived 10 km from the hospital. The arrest warrant of [a date in] March 2014 was still in force. [Mr F] helped the applicant gather the documents necessary for a visa application to Australia using his international partners. He was granted a visa [in] May 2014.
Meanwhile his house and office had been searched and he lost all his properties, but his personal documents were kept in a private box at the post office which allowed him to leave. His friend used someone he knew in the army to help him get onto the aircraft without any checks of his documents, and he left [in] June 2014.
First Tribunal Hearing
The applicant was asked about some documents in his file. A death certificate was for [Mr D] his companion who had been killed in an attack. He was asked and said they were the same death certificate – it was put to him that they appeared different. He claimed the first one was of poor quality and he provided another. It was put to him that the words were different. He claimed the registration number was the same. It was put to him that if he was providing a better quality certificate it should have been the same, just of better quality. The two had different words.
He claimed that, when it was pointed out the first was of poor quality he then asked the only friend he had in Cameroon to scan a new copy. It was put to him that the documents were actually different given they had different entries. He claimed in Cameroon they were written by hand; at the town hall there was a registry office and an officer filled out a register and then it was transferred to three different documents manually. The first officer filled in the first docket and somebody else may have filled out the other documents. Asked why they didn’t just scan the same document, he claimed that the first two dockets are given to the person who made the application and the third is kept at the town hall.
A medical document was referred to and he was asked if he was medically able to attend and he stated that he was. He claimed that if he returned to Cameroon he would be killed because of his homosexuality by the Cameroonian government, his family and the broader community. He claimed that he was a prince from the area in Cameroon in which he lived. His father was a village chief and the applicant was enrolled into the nobility. As a prince he had to accompany his father as chief when he was living with his family.
He had to wear traditional dress when accompanying his father – he was asked if there were any photos or media reports to support this. He claimed that the customs surrounding this were sacred and photo taking was forbidden when they were performing rites. He was asked if he could provide any evidence that he was a West Cameroonian prince, and said one could find such photos on line. He was asked to provide such photos post-hearing.
He was born homosexual which was completely at odds with the traditions of his society. When he was [age] he was thrown out of the household by his parents. They found out he was gay when they discovered he had been seen in the toilets with another boy. He and a boy were touching each other and kissing in the toilets; they were seen by other students. They thought they were being discrete and couldn’t be seen. It was quiet and they went to the toilets (the other person was a class friend who was also gay) at the same time after getting permission from the teacher. Asked if he couldn’t get together after school or on weekends somewhere more private, he claimed they were both [age] and his parents wouldn’t allow him out on weekends and he had to accompany his father on weekends.
They were in the toilet and coincidentally another girl came to the toilets and heard them making noises. She saw their legs under the door and went and talked to the head of the school. Asked why they didn’t think someone else would come to the toilets at the same time, he claimed that there was a corridor and the girl saw them. When his parents found out they thought he was possessed by a demon and taken out of school and some sacrifices were made at the village.
After the sacrifices they thought he was better and he went (back) to Duala to a new school when he was [age]. Asked how long he was out of school after he was discovered, he claimed it was a year and that when he was [age] he had a police record and was accused of being a risk to other children at school. He then clarified that he and the other boy were named by school authorities as being gay and could not be placed together in school. He was only barred from local schools in that district in which he lived.
He then claimed that he was out of school for one year when he was [age] and then his parents paid for a tutor for a year to study at home. He was [age] when he was discovered at the toilet and taken out of school and back to the village. There was no police record. For the next year there was a year dedicated to dispossessing him of demons in his parents’ village. The toilet incident happened in the second of three terms so he just missed the next term.
The following year he was between the village and Duala not going to school, but accompanying his father doing nothing when he was [age]. When he was [age] he was getting special preparation to further his education in order to return to school. He had a private tutor. As ked why he didn’t do this when he was [age], he claimed his parents had no time to do this and it takes a long time for4 the demonic rites. Asked if he couldn’t be tutored and be un-demonised, he claimed he followed what his parents told him to do.
He returned to school as a mature student and began a relationship with another student. Asked how he entered a school after being expelled from one for being gay, he claimed that the new school was in another district of Duala. Asked why, if the intention was to stop gay children from being educated, school districts would share this type of information he simply said that information wasn’t shared or else he couldn’t have gone to the new school.
He had his fist homosexual relationship with this friend around 1998. His parents realised that the ceremonies hadn’t worked, as a friend from their district had told his parents. They were overwhelmed and they threw him out of the house the following year when he was [age]. It was known he was gay and he had to leave Duala and went to Yaounde, but the homophobia was worse there. He left and went to another city in Cameroon. He had the same problems and went to Duala, went to school to finish and in order to survive he had to prostitute himself. He hadn’t mentioned this before because of the shame.
By this time he was [age] and looked for jobs and continued his relationship with [Mr C]. The relationship lasted until 2004 (a total of six years). He returned to Duala in 2006 and looked for jobs there. He was trying to hide that he was gay but was still frequenting European style bars where gays were tolerated. In 2006 he met [Mr D], another gay Cameroonian and began a relationship with him. He had no news from his family but three years later his mother was sick and his family looked for him so he could get married in order for her to get better. He was supposed to be chief next and his mother’s illness was mysterious so he had to get married. They chose him a wife and he was married in December 2008.
It was put to him that it must have been a large wedding giving he was the tribal prince and he was asked for any photos or media coverage. He claimed it was hard to talk about it as he was forced into it. He also said it was traditional Cameroon and it was private unlike a prince in the UK. Asked if he had any proof of his marriage, he claimed he left with nothing from Cameroon. He was asked to provide copies of his marriage certificate and photos or media coverage of the wedding. Asked if he had any photos of he and his wife, he claimed his house was ransacked when he was in hospital and he had no photos at all.
He was asked to provide a copy of his marriage certificate, given he could provide the death certificate of an unrelated person it was reasonable to believe he could get a copy of his own marriage certificate. His friend in Cameroon looking after the applicant’s daughter was in charge of organising [Ms D’s] funeral as gays weren’t allowed a proper burial. The police were looking for him in Cameroon. The applicant claimed he had adopted an orphan girl, and he was asked for copies of adoption papers, or photos of his adopted child with he and his wife. He claimed he had nothing when he left Cameroon and his friend was looking after the adopted daughter.
The day he was arrested he separated from his wife and his wife and family refused to look after the adopted daughter who was now looking after the girl. The applicant agreed he was in constant contact with his daughter in Cameroon and he was asked if there were records of emails or correspondence between them. He claimed that they corresponded through phone video and the wife of his friend often sent emails containing his daughter’s schoolwork.
He was asked to provide evidence that would support his claim to have a daughter in Cameroon looked after by his friend and with whom he corresponded; something that illustrated a link between him and a daughter in order to establish his credibility. From December 2008 when he was married to someone arranged by his parents. He had to be married to save his mother’s life. An adjournment was taken as the applicant was very emotional at this point.
Regarding his marriage he wed [Ms E] at the end of 2008 to save his mother and cover himself as a gay man. He lived with [Ms E] but still maintained a physical relationship with [Mr D]. He had no choice but to live a double life. His wife felt abandoned as he was not paying attention to her; he found it difficult as he was not used to having a relationship with a woman. One day he was away but had left his phone on which were photos of him and [Mr D]. [Ms E] found them and told the applicant’s parents.
His family called him and asked if this was true and he told them these were old photos and he was no longer gay. He didn’t know but they began following him on a daily basis. He had started a business as the head of a [company]. Asked how he started this, he claimed that he had studied [subjects] in a private school in Duala and because of the discrimination against gays in employment, he had to start his own business.
Asked for a copy of his academic transcript, he claimed he left Cameroon with nothing. He was asked if he could get copies and he said he didn’t know – he was asked to attempt to do so. He saved money and was helped financially by a French friend of long standing in Cameroon who was also in the same line of work. He had known this person for 10 years; he had business interests in Cameroon and would travel in and out. This Frenchman had been a client of the applicant’s when he was prostituting himself.
The company was registered in the applicant’s name and was asked for a copy of the registration documents. He said it was registered and this helped him getting a visa. Asked if his family followed him to work every day, he claimed that after the photos were discovered they began following him but this was unknown to him. The photos were found three or four months before he was arrested; this was around November the previous year. He knew his family followed him because he had been arrested far away from the district so he must have been followed. Asked how he knew they followed him every day for three or four months as he claimed, he repeated the arrest proved to him that he had been followed.
He met one of his uncles on the route to work three or four times and this gave him a feeling he was being followed. It was put to him that the Tribunal needed to judge his credibility and if he claimed to have been followed every day, yet it was based on a feeling then he needed to qualify his statements before he presented them. After the discovery of the photos on his phone he realised he met his uncle twice at a [location] on his way to work which was very unusual.
Second Hearing
Having run out of time, a second hearing was scheduled. Some documents were handed to the Tribunal and the applicant was asked about them, which he explained. He was asked to describe his [company] and he said it was small with five employees. Since he left it had been administratively closed by the board and the lawyer on staff who was the chief accountant. It was a long process; his visa was given in May and some of the equipment had been damaged so there wasn’t much point in continuing.
Asked if he began winding the company up once he received his visa, he claimed that after he fled the hospital the company slowed down as there was a break-in and robbery. The employees were scared. The accountant went through the administrative process of closing the company with the local tax authorities. His involvement was decentralised; the accountant was his deputy and could sign the paperwork and make decisions, which is what he did. The applicant allowed this to occur as he had left Cameroon. He gave the order to the accountant but the accountant didn’t need his signature. The applicant ordered the company closed once the visa was granted via his friend’s phone to the accountant. No written direction was required.
Asked if he had a record of the company’s de-registration he claimed that he did and these had been submitted. Asked if he had had any contact with any of his employees after the company had been wound up, he claimed that he hadn’t. There were no debts, nor had he been contacted by any of his employees. The company was closed the week before he left [in] June. Asked why he decided to close the company down after his visa was received, he claimed they were all scared and some computers and documents had been taken.
Asked if he had been in contact with any of his former employees to see how they were, he claimed that he had no contact over the past year but had contacted them by phone when he came but they decided not to speak further in case the police investigated. He spoke to them around the middle of 2015; he arrived in Australia [in] June 2014. Asked why he waited a year to contact them, he claimed he had no telephone, he had health problems that put him in and out of hospital.
He had come to Australia on a [temporary] visa. Asked how he was going to do any business if he had closed the company already, he claimed the visa had been organised between an Australian company and his French friend. He had little to do with the visa.
Asked about events [in] February, he claimed that he was arrested and beaten up until [Mr D] died. That day was his birthday and he went to [Mr D’s] house and they were going out when they were stopped by a crowd and heard the local word for homosexual used. His family was present when they were beaten up – his parents and ex-wife were there. The police didn’t come until after [Mr D] was dead. Asked if she was his ex-wife, he claimed that she took everything but left his daughter.
Asked if he was still married in Cameroon or if divorce proceedings had been initiated by either party, he claimed that his wife had. He was now divorced and was asked if he had a copy of his papers. He claimed he had nothing. He did not know when he had been divorced as he hadn’t heard from her. He heard that two weeks after he was beaten, his friend told the applicant that his wife had told his friend ([Mr G], who was looking after his child) that she had filed for divorce. He was asked how custody of his daughter was given after the divorce, he claimed that he had custody as only he had adopted her. His wife told [Mr G] to come and get the girl. The applicant claimed that he adopted the daughter after marriage. It was put to him that unless he had country information it did not make sense that a single male would be given custody of a girl, and if he was married then the adoption would be to both partners. The Tribunal as unaware of any system that allowed one person out of a couple to adopt a child.

He claimed that legislation between Australia and Cameroon is different. His wife didn’t want to adopt but he did so he went ahead. He was asked to provide a copy of the Cameroon legislation that allowed one person of a couple to adopt a child, as well as a copy of the relevant adoption papers that would bear out his claim. He claimed he couldn’t give these papers as he was not in Cameroon.
Regarding the assault, the applicant and [Mr D] were going to a [bar]. They were walking along the street and were followed without their knowledge. They opened the door to the building and people shouted – they were unable to flee. They were assaulted by many people; the numbers were impossible to count. Some were there to look, others to shout, others to beat them up. He didn’t know how many people were assaulting them but there were more than five or six. He saw his family there but didn’t know what role they played. Asked why he thought they were there, he claimed they were the ones following him.
The assault went on for around two hours although it was hard to tell. It stopped only when the police arrived. Asked how they were assaulted, he claimed that the crowd beat them using punches with fists, and he was hit in the back with something. His [was injured]. They used sticks and punches. It was put to him that two hours was an extraordinarily long time for an assault to occur and was asked why it took so long for anyone to come. He claimed that in Cameroon homosexuality was considered as a crime against mankind which is why it took so long. He has a video of an assault on homosexuals.
After the two hours the police arrested him. [Mr D] was suffering from asthma and had trouble breathing and died. The applicant was taken to the police station and arrested as a homosexual. Asked if he was charged, he claimed that an organisation that looks after Human Rights in Central Africa negotiated with the police to allow him to be taken to hospital. His lawyer was also there, and he was charged. Asked about the arrest warrants that he was given, he asked if it was dated [in] March 2014 as it was written after he had escaped from hospital. It was put to him that there was a warrant dated [in] March and he was asked what it was for. He claimed it was the same matter.
Magistrates and the police do it for extortion to get money. He was asked why there were two arrest warrants and he claimed that they were signed by different magistrates; the second was a reminder. Asked why write two if they can get money from the first warrant. There was no need to write a second if he had not been served the first. He claimed they came from two different courts to extort money. He was asked how he could be arrested twice for the same crime, so it did not allow for extortion to write a second one. He claimed they lived in different judicial contexts. It was put to the applicant that the Tribunal did not understand how the process of issuing two warrants for the same crime allowed for extortion to occur.
He was taken to a hospital and spent two weeks under police guard there. Asked what was wrong with him, he claimed that his [injuries] were the problems. He was in bad shape. His knee still hurts currently; and [a part of his body] was broken. He had no paperwork as he fled the hospital. He was taken to intensive care and x-rays were taken but he didn’t know what the diagnosis was. The nurse told him but he couldn’t remember. It was put to him that he had claimed to have been beaten by a large crowd over two hours and he only appeared to have a sore knee and a broken [body part], injuries which didn’t appear consistent with the degree and nature of the assault.
He claimed he was in intensive care and on a drip and fled so had no documents. He was asked why nobody told him what was wrong with him during his two weeks in hospital. He again claimed he was suffering all over, was bruised and inflamed all over his body. He was unconscious when he arrived and regained consciousness a little while after he was put on drips. This was during the two weeks and fled hospital after he regained consciousness. Asked how long he was unconscious for, he claimed he couldn’t remember.
He knew his life was in danger and knew one nurse in hospital who had helped him adopt his daughter. Gay people in hospital were put to one side. The nurse contacted his friend, took him out of the room as if she was taking him to the toilet. She arranged for a motor taxi to wait outside the toilet window, which was low, no more than a metre high. She waited until the police officer guarding him went to a place set aside to have a cigarette. Asked why there weren’t two police officers in case one needed to leave his post to go to the toilet. It was put to him that putting a double guard was a basic security consideration for this very reason. He claimed there was only one. He was asked whether he was able to get out the window with his fractured knee, and he claimed when he was in danger he could do anything.
The nurse helped him out the window; the toilet was separate to the ward. Asked how he got there with his fractured knee, he said that he was limping. This was [in] March 2014 and the arrest warrant was issued two days later. It was put to him that an arrest warrant was also issued five days prior to this, while he was in hospital. He claimed they were signed by different magistrates and the second was after he escaped from hospital.
He went to his European (French) friend’s house by motor taxi. The friend contacted his Australian business partner to arrange a visa. He didn’t know how long they had been business partners for. Asked why his friend chose Australia, and he claimed the idea was to go as far away as possible. If he went to France he could be arrested. He was asked why he would be arrested given homosexuality wasn’t illegal in France and the applicant spoke the language. He claimed it would be easier for Cameroonian authorities to arrest him in France. Asked how they could do this without just cause given French sovereignty and that homosexuality was legal and France accepted refugees. He was asked why he didn’t seek to go to France, particularly given his friend was French and would have had many contacts there.
He claimed Australia was chosen because it was so far away and repeated that it would be easy for Cameroonian authorities to access him in France. He was again asked how he formed this opinion given he would not have committed any crime in France. He claimed that there was a large Cameroonian population in France and it was possible that he could be assassinated after he was arrested. Again asked why he believed he would be arrested, he claimed he had examples where this had occurred and that he knew what he was talking about. He was asked to provide post-hearing some evidence to support this, including instances on Cameroonians being arrested in France for homosexuality.
The applicant was then asked, and claimed that he never spoke to the Australian business partner personally. They filled in the visa application and it was sent to Nairobi to the Australian High Commission. He knew he was filling out a visa application for Australia when he signed it and sent it by DHL to Nairobi. [In] May he received an email saying the visa had been granted. He went through closing the business, and a high-ranking officer in the Cameroonian Air Force arranged to drive the applicant to the airport for a sum of money. He never spoke to the Australian High Commission in Nairobi.
In Australia he had engaged in gay relationships. Asked approximately how many relationships of long-standing and whether he had any evidence to support this, he claimed that he had no long-term relationships but he had sex and was looking for a long-term partner. Asked if he had any evidence of relationships, he claimed that he belonged to [website] and he went to sex venues. It was put to him that the Tribunal needed to establish his credibility as a witness and being a club member or online was little evidence other than he joined groups. If he had a relationship there was often a trail of communications and other things that would reveal he was in a loving relationship. He claimed he had photos and [texts] from a relationship he had with a man. He claimed he only had sex partners currently, no long-term relationship.
Witnesses were then called. The first witness was [Mr A] a counsellor/therapist who had worked with the applicant over a period of years. [Mr A] claimed years of experiencing working with people with homosexual identity and he believed the applicant to be gay. Asked whether the witness had based his claim to be homosexual in part or in full on accepting what the applicant had claimed to be true, he claimed that he based it on his own experience with the applicant for three years, and within his own broader experience. He also didn’t know of any relationships that the applicant had in Australia other than short-term ones. Asked if the applicant’s anxiety that the witness had observed had come about through reasons other than homosexuality, he claimed he didn’t want to be too categorical but in a large number if not the majority of instances this was the case. He reiterated that he believed the applicant’s claims.
The next witness, [Brother B] claimed that the applicant went to a gay Catholic organisation and socialised with gay people and groups and people didn’t do this unless they were gay. Asked if there was an economic incentive attached to these actions whether that would change his opinion, he claimed he hadn’t come across people doing this for economic incentives. He claimed that the foreigners he knew returned home and then sometimes came back to Australia in relationships. He also claimed that the applicant hugged people rather than shook hands, which was also indicative of gay actions. He knew the applicant had a few liaisons with men but that was all. Asked if he based his opinion on what that applicant had told him about his situation in Cameroon, he claimed that he accepted the applicant at his word.
The adviser was asked about hearing from an additional witness, and she was asked whether the person would add any first-hand knowledge different than that which the witnesses had already stated. The Tribunal decided not to hear the witness but a telephone call to another witness more germane to the case was requested and attempted. As it turned out this witness was unavailable.
The applicant was advised about s 424AA and it was put to him that he had advised the Tribunal that they both filled out his visa application, he signed it and they sent it to the Australian High Commission, but that he had never spoken to the High Commission or the business partner sponsoring the visa. It was put to him that records indicate that the Australian sponsor had never met the applicant in person but that he had had several conversations over the phone with the applicant. The High Commission also said that it had contacted the applicant directly. This was inconsistent with what he had claimed at the Tribunal.
He stated that the Australian company tried to arrange the visa and sent an email to Nairobi about the applicant’s education but he never spoke to the High Commission directly. He was again asked about the conversations with [Mr H]; he claimed he never spoke to this person by phone. Asked why [Mr H] would say such a thing, the applicant replied by asking why he would say he never spoke to [Mr H]. Regarding contact with the High Commission, he agreed he had contact via email.
Also under s 424AA it was put to him that he was asked several times by DIBP and repeatedly told them that he had no idea where he was going to. It was put to him that he was surely aware of where he was going when he signed the visa application, he claimed that his French friend ([Mr F]) did everything. He had no idea where he was going to, he didn’t even ask [Mr F], he just signed the form. Yet today he claimed he knew exactly where he was going, and was in contact with the High Commission by email. The inconsistency could impact on views of his credibility. He claimed that he meant he didn’t know the place insofar as he didn’t know any people there or what was there, not that he didn’t know where he was going. It was put to him that the questions asked were very explicit on the tape and his answers were equally explicit. He had even asked whether he had filled out the visa application and he claimed he had just signed it.
Also under s 424AA it was put to him that he claimed to be in hospital for two weeks in intensive care, yet he only had [minor injuries], which didn’t appear to be consistent with being in intensive care, even within a third world hospital. He was asked how he could be in intensive care for two weeks then just walk out of hospital. He claimed he fled the hospital, wasn’t released. His child was with [Mr G].
Under s 424AA it was put to him that he had claimed to DIBP that he had five employees but had no idea what happened to them and had never had contact with them, yet he claimed that he had contacted them twice by phone but had decided to cease contact with them. It was also put to him that his social insurance document listed his employees was zero, which was inconsistent with his claim to have five workers. He claimed that he first contacted two employees in 2015; his interview with DIBP was in 2014. He claimed his employees were casual so not included in the social insurance.
It was put to him that he claimed he had a lawyer/accountant who had all the same powers as himself and who closed the company – this didn’t appear to be the work of a part-time employer. He claimed the lawyer wasn’t part of the company, the accountant was a casual appointed for three years, for example. Asked if he had ever advised anyone previously that the employees were casual, he claimed it had never come up. It was put to him that it was reasonable to think that part-time workers would be covered by the fund and he was asked to provide evidence that they weren’t. He claimed he was very debilitated when he spoke to DIBP and he couldn’t provide any evidence about labour laws in Cameroon.
Asked if he knew of any gay-tolerant country in Africa, he claimed that he didn’t know. It was put to him that South Africa allowed same-sex marriage. He was asked if he ever tried to travel to South Africa to explore his sexuality, given he claimed to be frustrated by the constraints he faced in Cameroon regarding his sexuality. He claimed that he didn’t know the views of any other African country regarding homosexuality, only that Cameroon is the worst.
The Tribunal had to determine the applicant’s credibility in order to determine whether it accepted that he was gay. To date he had claimed that he was married but couldn’t produce a marriage certificate but then produced one, was divorced but couldn’t produce a divorce certificate, had solely adopted a child even though he was married at the time. This latter claim was difficult to believe. Even though he was divorced, it didn’t appear that custody of the child had been given to anyone or had been taken under the control of the state. The girl could be the daughter of a friend, he could still be married – there were a range of relationships that she could be the product of. He needed to produce an evidentiary chain to highlight her guardianship as currently there was not.
The same held for the group assault. He only appeared to have a broken [body part] and a fractured kneecap from a two hour group beating. There was nothing linking him to [Mr D]. It was quite possible that he knew a person called [Mr D] who simply died young. There were a range of inconsistencies in what he claimed occurred to him in Cameroon that could carry over into the Tribunal’s view of his credibility, including whether he was homosexual at all. He had also raised a claim very early on that he feared harm due to political affiliation but had not mentioned it here. He was asked if it was no longer a claim.
He claimed that he had said hours after he was arrested the police found a political card at his home. The police said that they believed he was trying to turn Cameroon into a homosexual country. Asked if he had any political claims any longer, he stated that he didn’t. He repeated that he was born homosexual. The Cameroon system was very different to the Australian system and he came from a traditional family. He claimed he was in a relationship currently but the person was afraid to publicly reveal his homosexuality. The adviser was given additional time to provide a post-hearing response, including a statement from the witness who could not be spoken to.
Third Hearing
The applicant was advised of s 91R(3) and it was put to him that the Tribunal had concerns that while in Australia he had told a number of people he was gay and had attended a number of venues (including a Catholic church) used by gays, and that his actions with respect to the gay community in Australia had been done strategically with a view to creating a homosexual profile rather than as any real expression of his homosexuality. He claimed that he was born homosexual and finally met a free gay community in Australia, and particularly the gay Catholic community. In Australia he was accepted as he was.
He asked and agreed that he had a partner he had met on a dating site and they were learning about each other. He was a sexual partner. When they had free time they tried to spend it together. On weekends they would catch up together. Asked when he last went away with his sexual partner he said they saw each other last week but not the weekend. It was a well-known place, it was a hotel. They normally met in discrete places. It was a motel in [Suburb 1] where you booked a room online. He was again asked for the name of the hotel. He then said it was Air BnB online and was not really a hotel but it was a house where you could book a room.
Asked for the address he said it was not far from the train station and one could walk there. He had been there last week and several other times. He then said it was three times. The other places were public toilets or the car park in [Suburb 2]. He said he didn’t go out on weekends and they just met at places each other knew. Asked if there was any other location where they met, he claimed there wasn’t.
He did not book the room himself, it was done by a friend who organised it because he didn’t have the money and he would refund his friend. The friend was [Dr I]. He was asked to provide three Air BnB bookings for the room under the doctor’s name, including one from last week. He said the doctor was currently [overseas] at a conference. He was asked to contact the doctor and get him to print off the bookings and send them to the applicant.
Asked about [Mr H] not coming because his company had been de-registered, he said he didn’t know him so couldn’t make any comment. It was put to him that the applicant’s gay friend in Cameroon was a business partner so he could contact [Mr H] if required. He repeated the applicant didn’t know [Mr H] and was asked why he didn’t get his friend in Cameroon who had done so much for him to contact [Mr H]. He claimed most of the time his friend contacted him rather than the other way around.
[Mr A] appeared as a witness and said that the priest ion Cameroon had called the applicant a sodomite and was not welcome in the church. This was the result of French colonial Catholicism that bred fear so he wouldn’t be comfortable in Cameroon. This was relayed to him by the applicant, over many hours of counselling.
[Ms J] also appeared as a witness and said her experience with people who identified as gay was reflected in the applicant who she assessed was gay. Asked how much of her assessment was based on accepting the applicant’s accounts as true, she said that all of it was. If what he had said wasn’t true this would alter her assessment but she believed that over the time she had seen him his story was consistent and his initial account was traumatic. She had no doubt as to the veracity of the story he made. She claimed that if he returned to Cameroon he would be harmed as he was gay; this was based on his self-reporting but also based on her experience. He had also presented for an STI screening which can be quite invasive and she didn’t think someone would do this if it was the first time of presenting. Asked when this was, she said it was around October 2015 and she was asked if she knew what his visa status was at the time and she stated that she didn’t. He had previously exhibited signs of trauma and it had been hard to get him to the clinic. It was put to her that if there was an economic incentive then people may have been motivated to attend, and was asked if this would cause her to change her mind. She said she knew people did these things but she believed the applicant and his trauma was very real. She hadn’t come across economic motives for people to present to her but acknowledged that this may happen.

[A witness] appeared and he claimed that the applicant and [Mr D] were known to him and they were definitely a gay couple. They had come together as part of [a] human rights group – the witness worked in the call centre. [Mr D] was a volunteer and he had met him in 2011. Asked why the applicant wouldn’t have mentioned this connection before, he claimed that he didn’t work with them, they were just beneficiaries of their project. It was put to him that the applicant had never mentioned the bulk buying of condoms and other assistance he had written that they had provided.
He was asked why [Mr D] being killed and the applicant being hospitalised never made the news and wasn’t reported by any gay rights group anywhere, given the seriousness of the incident. He claimed that not every attack on gay people was reported. He had been arrested and it was reported because he was a gay rights activist. It was put to him that someone was killed and another was put in a coma because of their homosexuality – surely given the presence of gay rights groups there would have been some way of getting this information out.
He claimed that it reminded him of another case in 2012 where no investigation had gone further and journalists may not report. It was put to him that in this age of social media it should have been easy to get this news out directly or via some contacts elsewhere in Africa. He claimed social media in Cameroon was controlled and they may receive threats.
The applicant was also asked to send a copy of [Dr I’s] airline tickets and details of the conference he was attending [overseas].
The applicant’s alleged gay lover was called by phone. He was aware of the case and he said they were casual sexual partners. They had spent time together at a house in [Suburb 1]. They had been there twice but someone the applicant knew rented it. They went there last week and last year. They didn’t have sex anywhere else. He didn’t know the address but they walked there and took no notice of the street signs.
The applicant was then advised about s 424AA and it was put to him that the witness had said they had sex twice at the house but nowhere else, yet he had said they went to the house three times and had sex in toilet blocks and a car park in [Suburb 2]. This inconsistency may lead the Tribunal to believe that there was no sexual relationship between the two. He claimed that the witness was discrete and they took photos in the toilet and car park and it was private and he wouldn’t want it advertised.
He had photos and texts of them in [Suburb 2] and text messages to prove this. He was again reminded to provide the Air BnB bookings, and [Dr I’s] airline tickets and proof of conference. He asked if the Tribunal really needed the tickets of [Dr I], and it was put to him that the Tribunal was assessing the applicant’s credibility as there were concerns regarding his credibility. He claimed this was an intrusion on [Dr I’s] privacy – it was put to him that he had been told the request and the reason for it, and it was up to him to address it or not. He also claimed that the witness was very private and he would not admit to meeting in the toilets in [Suburb 2]. He also claimed that one homosexual a month was killed in Cameroon but it wasn’t reported in the media.
The adviser said that the witness would not come in person to the Tribunal and wasn’t sworn in and there may be many reasons why he wouldn’t admit to sex in the toilet and weight should be given to the other witnesses who attended.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant first arrived in Australia on a [temporary] visa [in] June 2014. He applied for a protection visa [in] July 2014. I have sighted his passport and accept that Cameroon is the applicant’s country of nationality.
The applicant is [age] year old, allegedly divorced male. He claimed that he feared being killed because he was gay and his life was in danger because he was a member of an opposition political party.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the medical documents provided by the applicant in support of his claim. He was asked if he was medically able to attend the hearing and he confirmed that he was. I do not accept, for the reasons set out below, that the inconsistencies apparent in his evidence can be explained by any medical reasons.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.
Political profile
Although the applicant made an initial claim to fear serious harm based on membership of an opposition political party, this was not advanced at all during the Tribunal hearing. Indeed, he was asked if there was any claim regarding a threat of serious based on political membership, and he stated that he no longer had a claim in this regard. As a consequence, I am satisfied that there is no real chance of serious harm for the applicant’s association with any political party and no further examination of this issue was made.
Homosexuality Claims
Whilst the Tribunal appreciates that there can be no single test to determine whether a person is gay or not, and the applicant has submitted a range of reports and witnesses to state that he is unequivocally gay, the Tribunal is required to look at the totality of his evidence. This reveals the applicant to have consistently fabricated claims and to have been deliberate in his actions in order to present himself to a range of people as gay. Such is his lack of credibility that I am satisfied that the applicant is not homosexual, and there is no real chance that he will face serious harm on return to Cameroon as a result of being perceived to be so.
He has submitted a range of claims and in order to demonstrate the range of his fabricated evidence it is best to address the claim chronologically as long as this makes sense. To begin with I do not accept that the applicant is a Cameroonian prince. It is reasonable to believe that there would be some photographic evidence (either private or from the media) to support this claim, particularly from a significant social event such as a royal wedding. Indeed, he claimed that one could find such photos on-line. He was asked to provide such photos post-hearing yet he failed to do so.
He did provide some photos post-hearing (folios 100-123) but I lend them little weight in making my finding regarding his royal status in Cameroon. The applicant doesn’t appear in any of them, and one is solely reliant on his written claim that they feature family relatives – given his lack of credibility as a witness I am not satisfied that this is the case. The presentation of photos of what he claims to be are special ceremonies involving one of his half-brothers, and of sacred dances and ceremonies is also inconsistent with his claim during the hearing that his inability to produce photos showing his presence during the performing of rites was because this was forbidden.
I do not accept that he had a homosexual encounter with another boy in the toilets at his school and was discovered by a girl who heard noises and saw two people in the one cubicle and reported this to the teachers. The account is an implausible one for a number of reasons. To begin with, it is unusual that a teacher would allow two students to leave the classroom at the same time to go to the toilet, rather than allow them to go sequentially. It also makes little sense that two [age] year-old boys would not have the presence of mind to at least be able to spot if someone else sought to enter the toilets given it was, according to the applicant a unisex toilet.
It also makes little sense that two [age] year-old boys, knowing the risks for being discovered partaking in homosexual behaviour, would take the extraordinarily risky step of having sexual contact in a unisex toilet in their school during school hours. I do not accept that they could not have arranged a meeting on weekends because the applicant had to accompany his father at this time, and the other boy wasn’t allowed out on weekends.
I have not accepted that the applicant was a Cameroonian prince so he would not have had to accompany his father, and the reason why the other boy was prevented from leaving his home on weekends was never explained. Country information indicates that in Cameroon, teenage boys are given the freedom to play sports, study and play video games as they are free from domestic chores that are performed by teenage girls.[1] Finally, this claim is inconsistent with his own statement (folio 43) where he claimed that he had his first sexual contact as a gay at age 18.
[1] >
I do not accept that the applicant later returned to school as a mature age student at another school when he was [age] and began a relationship with a fellow student. His account of this time was at various times inconsistent. He initially claimed that after the incident he was out of school for a year and had a police record. He later said that he had no police record. He also claimed that when he was [age] he accompanied his father and did nothing, as well as claiming that after he was expelled there was a year dedicated to dispossessing him of demons in his home village, and that when he was [age] he had a private tutor.
Not only is there an inconsistency between the fact that at age [age] he claimed that he accompanied his father and did nothing, at the same time as he was exposed to a year of demonic rites which ‘took a lot of time’. Because of the inconsistencies in his account relating to this period, as well as the applicant’s lack of credibility I am not satisfied that he began a six year relationship with another student or that he spent a period of time as a gay prostitute. Both of these rely on his own testimony only, and his claim to have been a gay prostitute had not been mentioned previously. While I accept that there may be some sense of shame attached to this on the part of the individual, I can find no reference to it in any of the supporting material that he has provided the Tribunal nor has it been raised with the Department. Given the non-disclosure provisions of the asylum-seeking process, it is reasonable to believe that he would have revealed this earlier than during his hearing if it were true.
Given that I have not accepted that the applicant is gay, it follows that he never met and carried on a long-term relationship with a gay lover by the name of [Mr D]. He has not provided any copies of emails, photos, text messages or any other indication that such a relationship existed. I do not accept that he had to leave Cameroon with nothing or that his place had been ransacked, given I do not accept his account of the circumstances that he claimed forced him to leave Cameroon in the first place.
I also do not accept that his phone with photos of [Mr D] were discovered by the applicant’s wife and that his family began following him. He based this claim variously on the fact that he was arrested far away from his home district, that he met one of his uncles three or four times on the way to work which gave him a feeling that he was being followed, and then when he was warned about p[resenting speculation as fact, that he met his uncle twice at a [location] on his way to work which was unusual. I do not accept that any of this occurred, but use it as another example of the applicant’s propensity to present assertions as facts.
The account of the assault of him and [Mr D] was implausible and I do not accept that any such incident occurred. To begin with, the applicant claimed that he and [Mr D] were subjected to an assault by a large crowd for up to two hours. Although he was unable to say exactly how many people were actually beating them, he claimed that it was more than half a dozen who were physically punching them and beating them with sticks. It is implausible that, given the intensity and duration of such a beating from so many people that the applicant’s main injuries consisted of a fractured knee and a broken [body part].
Although he claimed that he was also bruised and his body was inflamed and that he was ‘almost dying’ (folio 42) and was in intensive care for two weeks, he was still unable to remember what injuries he suffered. Whilst I understand that the Cameroonian health system is quite different to the Australian, and the applicant’s version of intensive care differs from the normal Australian version it is reasonable to believe that the applicant would have been aware of what injuries he had suffered, particularly as he knew a nurse with whom he was friends at the hospital. I do not accept that he had been told by the nurse but forgot or that he had lost his documents given that this relies on his testimony alone, which I have found lacks credibility.
Regardless, from the applicant’s claim he was very seriously injured. This makes the account of his escape from hospital all the more implausible. Not only was he coincidentally assisted by a nurse at the hospital who he knew through the assistance she gave him to adopt his daughter (although he never explained how a hospital nurse assisted the applicant to adopt a daughter, I have found below the adoption claim to have itself been fabricated), she was either equally coincidentally working in intensive care, or able to assist him to go to the toilet without being questioned by other hospital staff in intensive care.

100. At the same time, the police had coincidentally only posted one guard at the hospital room (it is reasonable to believe that two guards would have been used to allow one to take breaks when necessary, or that shifts were short enough so that breaks would not be required) and the applicant despite having been near death and in intensive care for two weeks was then able to be secreted out a metre high window into a waiting taxi. I do not accept that ‘he could do anything’ when he was in danger, as there are physiological limits to what the body can do, regardless of the danger one believes themselves to be in. I also note that the applicant didn’t require medical attention in Cameroon post-escape from intensive care, which calls into question the seriousness of injuries of someone who claimed they were ‘almost dying’ on entry to hospital.
101. Because I have found that the assault never occurred it follows that [Mr D] was never killed. I have taken into account the document that the applicant claims is a copy of the funeral ‘program’ for [Mr D] (folios 80, 81) and photos of what is claimed to be his grave (folios 62,63) but lend them little weight. The funeral ‘program’ could have been produced on any home computer and the grave appears to be a simple wooden cross in a cemetery with two bunches of flowers, without any indication of disturbed earth or any date/time stamp on the photo to indicate when it was taken. It raises questions in the mind of the Tribunal as to whether the notice and grave are genuine.
102. Even if the funeral and grave were genuine, there is nothing in either the notice or the gravesite to indicate the cause of death, nor any funeral notice in the newspaper or media report that would indicate the cause of death in order for the Tribunal to lend weight to them. I also lend little weight to [Mr D’s] death certificate(s) provided to the Tribunal (folio 1, 54). Although one (folio 1) is so poor as to be unreadable, it is still possible to see that its content is different to the other (folio 54).
103. I do not accept that his friend who had gotten the copy of the certificate had to get another one when he was advised the first had not scanned well, and that another officer may have filled out the other one. This does not explain why the friend did not just re-scan the poorly scanned certificate in the first place, and the fact that a friend in Cameroon could get a copy of the death certificate of someone to whom they are not related is inconsistent with the applicant’s inability to produce copies of his academic transcript when asked, or to provide any documentary evidence that he was divorced. I am also mindful of country information that indicates that the falsification of documents is widespread in Cameroon.[2]
[2] The manner of his departure from the country is also not indicative of someone who is fleeing gay persecution. Having fled to the home of a gay French friend ([Mr F]) who continued to travel to and from France regularly, it would appear a reasonable course of action for [Mr F] to use his contacts in France to assist the French-speaking applicant to travel there and then achieve some respite by living amongst the French-speaking gay community before seeking asylum in a country in which he knew the language.
105. Yet [Mr F] allegedly arranged for the applicant to travel to Australia. I do not accept that it was chosen because it was far away and because he could be arrested in France. He was unable to say why he would be arrested in France, nor could he say why it would be easy for the Cameroonian authorities to assassinate him after he had been arrested. He claimed that he had examples of the French authorities arresting Cameroonians for homosexuality in France, but failed to provide evidence to support such a claim post-hearing even though he was given the opportunity to do so. The Tribunal is unaware of any such occurrences.
106. The applicant also previously claimed that he had no idea where he was going to when asked by DIBP, that [Mr F] had done everything and that the applicant had just signed the form. Yet during the hearing he claimed that he knew he was going to Australia, had helped to fill out the form and had been in email contact with the Australian High Commission (AHC) in Nairobi. In addition, the applicant had also claimed that he had never spoken to the business partner ([Mr H]) in Australia who was sponsoring the visa, yet [Mr H] advised the Senior Migration Officer in the AHC that he had had several conversations with the applicant over the phone.
107. I do not accept the post-hearing proposal that [Mr H] may have spoken to some person other than the applicant or that [Mr H] was mistaken. The record indicates that several conversations were had about subject matter (Cameroonian import/export requirements) with which the applicant claims familiarity. The applicant has shown a consistent willingness to fabricate claims and while I don’t ascribe motive for the applicant denying any such contact, I place more weight on [Mr H’s] claims to the AHC than I do on the applicant’s denials.
108. I also do not accept that the applicant had two arrest warrants issued for him. In his protection visa claim he only referred to an arrest warrant issued against him [in] March 2014, and in his Tribunal hearing when asked if the warrant was issued [in] March 2014 he claimed it had been written after he escaped from hospital. When he was advised he had submitted a copy of a warrant dated [in] March 2014 he claimed that they were for the same matter. The applicant has submitted a number of what he claims are arrest warrants.
109. One is dated [in] February 2014 (folio 54) and refers to a [judgment] dated [in] March 2013, and two warrants both dated [in] March 2014 refers to a public order judgment dated [in] March 2014 (folio 2), and a homosexuality charge from 2012/13 (folio 55). There is another warrant also at folio 55 but it is unreadable. I lend little weight to these documents, given I have already outlined country information indicating the widespread falsification of documents in Cameroon. I also note that the post-hearing submission refers to a [charge] going back to 2010, yet the warrant refers to a 2013 judgment. I do not accept that two different courts issued arrest warrants for the same crime as part of an extortion bid – the claim itself made little practical sense and was inconsistent with his initial claim in which he stated that the second warrant was issued as a reminder.

110. I also do not accept that the applicant’s business was broken into and had equipment damaged, or that his house was ransacked. Neither do I accept that he had received threatening emails for three months after arriving in Australia. I have taken into account copies of what he claims are the threatening emails (folio 154-178) but lend them little weight. I have found the applicant to have fabricated his claim to be homosexual or to have been considered to have been so in Cameroon.
111. There is no way to prove who wrote the emails, and it is difficult to see why the applicant’s family’s home would be attacked given that he claimed his family were present at the assault, and in his statement (folio 42) he claimed his wife was a chief instigator of the assault. This would indicate strong family support for the homophobic assault so it is implausible that people would take out their frustrations on the applicants’ family’s home given they supported the assault. I also lend little weight to the photos (folio 239) he claims were of his house following a raid on it prior to his departure for Australia.
112. To begin with, this would also be his wife’s house who was an instigator of the alleged assault, so it is implausible that attackers would raid the house occupied by such a homophobic spouse. Regardless, there is no way of determining if this is the applicant’s house, and the photos appear to show a few photos strewn on the ground and what appears to be a part of the ceiling having collapsed. Whatever it is, the rest of the main dining room appears largely intact, including a cupboard with china untouched and a very large screen entertainment set in pristine condition. It does not appear to be evidence of a room, let alone a house having been ransacked.
113. Because the applicant was not wanted by the Cameroonian authorities, it follows that he was able to depart the country normally. Hence I am satisfied that he was never taken to the airport by a senior air force officer and bypassed normal procedures through the assistance of security force personnel.
114. As I advised the applicant at the third hearing, s 91R(3) requires me to disregard conduct in Australia in determining whether the applicant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim. I do not believe that the applicant has either genuinely explored any homosexual behaviour or sought to live a genuinely homosexual lifestyle in Australia.
115. While the Tribunal understands that it is difficult to ascribe a test to determine one’s homosexuality, the Tribunal is also required to look at the totality of an applicant’s behaviour to determine the genuineness of his actions. He has been deliberate in his actions in trying to enter Australia and in constructing a fabricated history of trauma and homosexual behaviour in Cameroon, and I am satisfied that he has continued that deliberate construction of a fabricated profile once in Australia.
116. For the same reason I have disregarded the applicant’s attendance at a service for gay Catholics at [a suburb], his attendance at a sexual health clinic where he had STI checks, courses for single gay men in Sydney, a protest for LGBTI rights held in [another city] and the mardi gras in Sydney in 2017 and in [2016]. While I accept that the applicant was introduced to the gay Catholic service by [Mr A] and [Brother B] (folios 320, 322) I find that his attendance there and the actions have been undertaken solely and strategically for the purpose of establishing a profile as a gay man and are not indicative of his sexual orientation.
117. I have taken into account the copies of what is claimed to be text messages between the applicant and a variety of partners in late 2015-16 (folios 227-232) but lend them little weight. There is no indication as to who the conversations are between, nor what communications devices were used. Such conversations can be easily staged to indicate the presence of sexual partners where none exist. I have found the applicant to have fabricated the existence of gay lovers in Cameroon, so there is no reason to believe that he would not be willing to do the same in Australia.
118. Similarly I also give little weight to the photo that he claims shows him with a former partner (folio 235). The photo has no date/time stamp to indicate when it was taken and looks quite staged. There are two men naked from the chest up on a bed with the other man kissing the applicant on the cheek while the applicant appears to be taking a ‘selfie’.
119. I do not accept that the applicant currently has a gay partner. During the hearing he claimed when asked that he only had sex partners at the time but no long-term relationship. He then claimed just before the conclusion of the hearing that he was currently in a relationship but the person was afraid to publicly reveal his identity. Post-hearing (folio 252) it was claimed that the applicant and his current partner had gone away for weekends together but that the partner is a young professional from an [ethnic] background who lives at home and is afraid to come out therefore he was not willing to provide evidence to the Tribunal.
120. During the third hearing the applicant was asked about where he had sex with his current gay lover. He claimed that he had met with his lover three times at a house in [Suburb 1] (he claimed he didn’t know the address) where one could book a room online through AirBnB. A friend ([Dr I]) would book the room and pay for it, and the applicant would then refund [Dr I]. The applicant also claimed that he and his lover had sex in public toilets and a car park in [Suburb 2]; he later also claimed that he had photos of these trysts. None of these photos were ever produced.
121. This was inconsistent with the subsequent claim from [Dr I] (folio 313) who stated that he spent weekdays in Sydney where he rented a room in a share house at [Suburb 1] that he said the applicant could stay at during the day while [Dr I] was at work. He also stated that he never asked for payment or reimbursement from the applicant. The accommodation arrangements of [Dr I] in [Suburb 1] appear to be as a long-term renter in a private house which is inconsistent with the applicant’s claim that [Dr I] booked a room through AirBnB on the applicant’s behalf on three occasions when the applicant required it to have sex.
122. The fact that [Dr I] has not provided any AirBnB receipts or booking records via AirBnB and stated that he never sought reimbursement from the applicant is also inconsistent with the applicant’s claim. I further note that, whilst the applicant claimed that [Dr I] was [overseas] at a conference at the time of the hearing he was actually attending to a business venture in Cameroon (folio 313).
123. The applicant’s claim regarding his sexual relationship with his alleged gay lover was also inconsistent with the evidence given by the gay lover himself. The alleged lover’s presence was requested at the third hearing however he again claimed in a letter (folio 300) that he was uncomfortable about revealing his sexuality and would not appear in person even though he acknowledged that the Tribunal would de-identify him. He provided a contact number and asked the Tribunal not to hesitate to contact him if it required further information.
124. The witness was called and asked about the nature of their sexual relationship. He stated that they had had sex in the house in [Suburb 1] on two occasions, which was inconsistent with the applicant’s claim that they had sex on three occasions. The witness also stated that they didn’t have sex anywhere else which was inconsistent with the applicant’s claim that they had sex in toilet blocks and a car park in [Suburb 2].
125. I place little weight on the witness’ statutory declaration he sent post-hearing (folio 321) in which he claimed he had not been expecting the call and was distressed about being asked sensitive questions such as where they had sex, and that the answer he had given during the hearing regarding this was incorrect. I also do not accept that on reflection he recalled being at the house on three occasions but they were only intimate twice.
126. I am concerned that the witness has had an opportunity to speak with the applicant post-hearing and has submitted the statutory declaration in an effort to fix any inconsistencies. I also note that the applicant had previously (folio 300) told the Tribunal not to hesitate to call him about any further information or input required. It is reasonable to expect that, given their intimate relationship the applicant had told his alleged gay lover the date and time of his hearing so that the call should not have been entirely unexpected.
127. I have taken into account the supporting documentation provided, as well as written and oral witness testimony discussed above and below. Some letters (folios 60, 61) are simply character references, others address the applicant’s situation in Australia with respect to his protection application. While I acknowledge many of the witnesses’ experience and expertise, and believe that they have given their testimony in good faith I lend more weight to the widespread inconsistencies in the applicant’s claims and what I believe to be his lack of credibility, manifest in a willingness to fabricate serious claims in order to manufacture a refugee profile.
128. [Ms J] from [a] Health Centre, and [Mr A] have spent extended periods of time with the applicant and strongly attest to his identifying as a gay man. [Mr A] has accepted (folios 69, 242) the applicant’s accounts of gay lovers in Cameroon and the death of [Mr D] which I have found to have been fabricated, and that he was a victim of torture (folio 68) which I also do not accept has occurred.
129. [Ms J] also accepted the claim regarding [Mr D’s] death, and that the applicant had to flee under difficult circumstances (folio 72), whereas I found that he left routinely on a [temporary] visa. Post-hearing she claimed that it would be inconceivable for a person to present to a sexual health clinic and undergo STI testing with the purpose of constructing a gay identity. She also believed that his traumatic history impacts on his ability to have a relationship with a man. I have indicated elsewhere that the applicant has fabricated the traumatic history that he is presenting to people in Australia.
130. She attended the third hearing and maintained her view that the applicant was a gay man who exhibited signs of trauma, but also acknowledged that her assessment was based on accepting the applicant’s account as being true. I have outlined throughout the lack of credibility exhibited by the applicant and have not accepted his account as being true, therefore am unable to lend much weight to [Ms J’s] evidence.
131. I have also taken into account a letter from [a witness] (folio 67) however he has no first-hand knowledge of the applicant’s history in Cameroon, as is the case with [Brother B] (folio 71 and attendance at hearing as a witness), and both accept his claim to be homosexual prima facie.
132. Further, I have taken into account the post-hearing statutory declaration from, and appearance at the third hearing by [a witness] who claimed to have been a human rights and gay activist in Cameroon and to have met [Mr D] and the applicant together. I also lend this little weight. He mentioned the applicant and [Mr D] being active in supporting the organisation, bulk-buying condoms and lubricants for the centre, while the applicant also used his friends [overseas] to bulk-buy the same [and] bring them to Douala.
133. The applicant never mentioned in his application, his interview with DIBP, either of his two hearings or in any of the submissions about this level of activity with a human rights group and it is reasonable to believe that this would have been mentioned well before the appearance of a person the applicant coincidentally met at the 2017 mardi gras. I also note that there are no public reports of the alleged incident in which [Mr D] and the applicant were brutally assaulted and in which [Mr D] allegedly died. In an age of social media this appears anomalous. There is country information[3] that supports the claim that the Cameroon government seeks to control social media (although this largely relates to terrorism issues), however information regarding the alleged assault could have been passed on anonymously to activists outside Cameroon for them to post on social media if it was too hard to do in Cameroon.
[3]
134. I also do not accept, as was argued post-hearing (no folio) that if reports are made about assaults against gays they are generally those that concern high profile activists such as himself who have access to external support outside Cameroon. A basic internet search reveals reports[4] of alleged assaults[5] and deaths of gays in Cameroon who don’t have a high profile. It is reasonable to believe that if these stories have been posted on social media then the account of the applicant’s alleged assault would also have been reported on.
[4] Lastly, I have taken into account medical reports that state the applicant is highly symptomatic for anxiety, depression and PTSD (folio 57) but note that this is based at least in part on the applicant telling the psychologist that he didn’t have the symptoms prior to experiencing the traumatic events in Cameroon, his account of which I have found to be fabricated. The same holds for a medical report from Professor [name] (folio 62, 137) who described the applicant as suffering signs of PTSD but also accepted the alleged history of the applicant as being homosexual, a member of the political opposition (a claim he has subsequently no longer relied upon) who had an injury inflicted to his [leg]. Another letter from a psychologist (folio 83) also appears to have accepted the events as described by the applicant (which I have found to be fabricated) in finding that he suffers from severe depression.
Other Issues
136. I do not accept that the applicant is the sole adopted parent of a girl back in Cameroon. Given I have found the applicant not to be gay, I am satisfied that the applicant was married in 2008 (folio 196). Although he claimed to now be divorced, I am not satisfied that this is the case, given he has been unable to produce any documentary evidence to this effect and I have not accepted that she sought a divorce based on his homosexuality.
137. His claim regarding the adoption is also implausible. He claimed variously that the nurse at the hospital had assisted him with the adoption without explaining what her role was in the adoption, that he adopted the daughter after his marriage because his wife didn’t want to, and that he retained custody of the daughter after the divorce but that she was being looked after by his friend [Mr G].
138. Country information[6] indicates that under Cameroon Law, adoption is possible by all people of either sex who are 45 years of age or over, or by both spouses in a legitimate marriage who have been married for at least 10 years and one of the spouses must have been more than 35 years of age and should not have born any legitimate or natural children. Given the adoption was alleged to have occurred in 2011 (folio 206) this means that the applicant would have been [age] years old (and his wife [age]) and married for only three years, making such an adoption legally impossible.
[6] He was asked to provide a copy of the adoption papers post-hearing to support his claim and, despite claiming that he could not because he was not in Cameroon he produced what he claims to be the birth certificate for his adopted daughter (folio 206). I lend this little weight given the aforementioned ease of obtaining fraudulent documents in Cameroon, as well as the fact that the applicant appears as the natural father of the child whose birth certificate it is, whilst someone other than the applicant’s wife appears as the natural mother.
140. I do not accept that this was because the applicant’s wife was against the adoption so he just used the deceased birth mother’s name. If the daughter was legally adopted it is reasonable to assume that there would be an evidentiary trail supporting this even if, as he claimed, he paid bribes and, using a lawyer and the family court he was able to expedite the process so it took weeks rather than months. While I make no finding as to the status of the child in Cameroon, this implausible account surrounding the adoption simply strengthens the concerns the Tribunal has regarding the credibility of the applicant.
Complementary Protection
141. Although I have disregarded the applicant’s attendance at mardi gras, a single gay men’s group and church service for gay Catholics, sexual health clinic for STI checks and protest against the treatment of LGBTI community in Cameroon for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). Because I do not accept that the applicant is homosexual I do not accept that these actions will be known in Cameroon and therefore he would be imputed with being gay. Because I have also not accepted that he has or will be attacked by his family, the community or the authorities for being gay I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
142. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Cameroon, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
143. 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).
144. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
145. 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
146. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Rodger Shanahan
Member

ATTACHMENT A – RELEVANT LAW
1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

2. 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).
3. 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’).
4. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.

[2017] AATA 3071

28 April 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness