1607317 (Refugee)

1607317 (Refugee) [2019] AATA 5990 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607317
COUNTRY OF REFERENCE:                   Guinea
MEMBER:Christine Cody
DATE:28 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2019 at 5:50pm

CATCHWORDS
REFUGEE – protection visa – Guinea – particular social group – homosexuality – race – ethnic minority – political opinion – party membership and activity – attacks and threats by family, colleagues, majority ethnic group and ethnic-based government party – credibility – inconsistent evidence – passport in false name, different date of birth – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 Guinea, applied for the visa on 15 December 2014 and the delegate refused to grant the visa on 6 May 2016.
MIGRATION HISTORY
The applicant arrived in Australia [in] November 2014, on a [temporary visa]. The applicant came to attend [an event] at [Venue]. The applicant lodged an application for a protection visa on 15 December 2014.
The Department
The Departmental file contains various documents, including the protection visa application form, a written statement from the applicant, a copy of the applicant’s passport in the [applicant’s name], supporting and identification documents, a copy of the interview recording, and the delegate’s decision record.
According to the application forms and written statement, the applicant’s background and claims can be summarised as follows:
·     The applicant was born in Kindia, Conakry, Guinea. The applicant lists his birth-year as [Year 1] in both Form C and Form B [at the interview the year in Form C was crossed through and replaced with [Year 2], and the applicant’s initials].
·     The applicant speaks, reads, and writes both Fula and French. The applicant is a Muslim of Fula ethnicity. The applicant lived in [Location], Kindia from [Year 1] to March 2014, and then Conakry from March to November 2014. The applicant completed secondary school in [year], and then completed studies at [name] School from 2006 to [year].
·     His father, mother [and a number of siblings] live in Guinea[1].
·     He engaged in work experience as an [Occupation 1] for [Employer] from 2012 to 2014. [at the interview it was added that the applicant also did [task] for a local business selling [products] from 2012 to 2014, and the applicant’s initials were inserted.
·     The applicant is gay. Due to this, the applicant states that he was teased at school, and was beaten and stoned in the streets. The police would not help him, because it is not considered acceptable to be gay in Guinea. The applicant states that people “knock” him at work. His family dislike him, as they consider it un-Islamic.
·     At one point, the applicant argued with a co-worker who was laughing at him for being gay. The co-worker pushed the applicant over, causing him to break his right arm. The other co-workers would not render assistance.
·     The applicant is a member of the minority Fula tribe. The majority Mandingos and the ruling party take advantage of the Fula. The applicant’s home is located on a main road where demonstrations are usually held and when there is a demonstration, Mandingos will break into the house to beat the applicant and his family, as well as loot their property. The military help the Mandingos.
·     [In] October 2013, the Mandingos broke into the applicant’s house and killed his father, as well as beating the applicant and his family. The authorities do nothing to curb the brutality of the police because the government is controlled by the Mandingos.
·     The applicant fears for his safety in Guinea, because he is Fula. The applicant fears being beaten or killed by the Mandingos, as happened to his father. The applicant also fears further persecution due to his sexual orientation, which can lead to humiliation or his death.
[1] The applicant also lists a daughter, but this is in error, as her birth-year is given as [year].
The applicant attended a protection visa interview on 18 March 2016, and the recording is found at folio 54 of the Department of Immigration and Border Protection (the Department) file [Number]. The delegate’s decision record (provided to the Tribunal by the applicant) provides a summary of the applicant’s claims at interview as follows:
·     The applicant’s real name is [Name 2]. He states that he was advised to change his name from a Fulani tribe name to a Mandingo tribe name, so that he could have a better chance at being given a passport. He states that there is much discrimination against members of the Fulani tribe by the ruling Mandingo population. He states that he was also told to increase his age. He states that his correct year of birth is [Year 2] - not [Year 1] [consequential changes were made on the application forms and initialed].
·     The passport office in Guinea did not ask for any proof of his identity and just issued the passport with the false details. A colleague of his [brother] advised him. A lawyer went to get his visa. The applicant did not attend the office when the visa was applied for. His current passport, though a valid Guinea document, contains false information deliberately provided in order to obtain a passport.
·     The applicant claims that he attended university (2009-2011) and studied [Subject 1] to begin with, but later changed subjects to study [Subject 2]. He states that he then worked for his brother by doing [task] for his business for two years (2012-2014) [this addition was made on the application forms and initialed].
·     He states that his father is deceased and his mother is supported by [one of his siblings]. He states that he has [a number of brothers]. [One] brother has his own business and [another brother] is attending school — they are both in Conakry, Guinea. He states that he also has [a number of] sisters, however, they are all married and some live in other towns.
·     He cannot return to Guinea as his life is in danger due to threats from the Mandingo tribe. They have attacked the Fulani tribe since 2010. He states that every time there was a demonstration they would attack and kill.
·     The applicant was a very active political member of UFDG (the Fulani political party) but cannot remember how many times he had attended the demonstrations. He organised many protests; he then said he personally organised eight protest demonstrations between 2010 and 2014, for UFDG.
·     He said he was not a formal supporter of the party but attended meetings and supported the party when he could.
·     The applicant claims that the police will not offer effective protection to members of the Fulani tribe, as they are controlled by the ruling Mandingo political party. He further notes that he cannot relocate as the police are the same everywhere.
·     He had no feeling of being gay before he was 20 years of age. His fiancé hurt him when his fiancé's family gave her to another man to marry and she accepted the offer from the other man. He said that he was so traumatised by his fiancé that he no longer has feelings for the opposite sex. He states that he has been gay since 2010 when he was 20 years old after his fiancé married another man. His family found out in 2012 and they have disowned him.
·     The applicant and his fiancé had spent a year engaged and there was no sex before marriage.
·     The applicant would go to meet other homosexuals at clubs for temporary liaisons. He has not had any longstanding homosexual relationships.
·     He states that he faced discrimination in that he would endure verbal abuse and people throwing stones at him.
·     The applicant states that he arrived in Australia [in] November 2014 and has been to a night club called [Venue 1] around six times. He states that he has not been going more than that as he is too busy working.
·     When asked if he was aware of any gay websites or had tried internet dating he said he was not aware of any. He was asked if he knew the major annual event that occurs for the LGBTI community in Sydney each year and he said he did not know of such event. When it was explained that the event was called “Mardi Gras” he maintained he had still not heard of this event.
The delegate referred to country information relating to homosexuality, the Fulani tribe and Mandingos, and the UFDG. Background information on the Fulani/Fula/Peul/Peulh ethnic group noted that they constitute about 40% of the population, while Mandingo (Malinke and Soussou) constitute 50%. The President is Mandingo and in Guinea, political party support is largely delineated along ethnic lines. Beyond political competition ethnic tensions do exist but violent conflict is not commonly documented by observers. The UFDG is the main political opposition party, and there are complaints of targeting members and supporters for arrest at protests. The delegate noted that while the government does target high profile UFDG activists and has been accused of arresting these influential figures, it was not satisfied that the applicant was anything more than a sympathetic member of the UFDG, having found his account of his political activity to be random and vague. While accepting that he may have encountered discrimination as a member of the Fulani tribe, the delegate was not satisfied that he was a political activist who would be of concern to the authorities or members of the Mandingo tribe.
Concerning the assault of his family and the death of his father, he has not provided any proof to support these claims.
The delegate was not prepared to accept the claims relating to homosexuality, on the basis of inconsistencies and non-credible evidence, noting that at interview he claimed he was [age] years old when he had a same-sex sexual orientation, but in his written claims he was [age] years old; the delegate was not prepared to accept that his sexual disposition changed dramatically due to his girlfriend’s refusal to marry him. Further, he claimed that he had homosexual feelings from the age of [age], he arrived in Australia aged [age] years and even if the delegate was to give him the benefit of the doubt, no serious harm was evident in Guinea. The delegate considered it implausible that although the applicant had been in Australia since November 2014 and he claims to have mixed with the gay community in Australia, he has not attempted to engage with available options for the members of the gay community. The lack of connection in Guinea could be understandable given that homosexuality is criminalised in Guinea (there are strong social, religious, and cultural taboos against homosexual conduct), but if he had engaged with the gay community in Australia he would have realised that there is relative freedom to pursue these options.
The delegate considered that the applicant had made unconvincing and inconsistent claims and the delegate did not accept his credibility or the veracity of his claims. The delegate did not accept that the applicant had been persecuted in Guinea nor that he has a genuine fear of returning to Guinea for the reasons outlined in his application. The delegate did not accept that he faces a real chance of persecution or a real risk of significant harm.
Non-disclosure certificate
At the front of the Departmental file was a Non-Disclosure Checklist indicating that a s.438(1) certificate had been placed on the file relating to certain folios of the Department file: covering a protection visa application checklist, internal emails between Departments and verification test of the applicant’s passport respectively[2]. The Certificate however was erroneously marked as a s.437 certificate instead of a s.438 certificate. Section 437 of the Act requires that the Tribunal not be provided with the documents the subject of the certificate; however in this case not only were the documents provided to the Tribunal, some of the information contained in the folios was already disclosed to the applicant by the Department in the delegate’s decision record which the applicant had provided to the Tribunal, namely the result of a forensic examination of the applicant’s passport (showing that it had been found to be a legitimately manufactured document). Both the provision of the documents to the Tribunal, the disclosure of some of the information in the delegate’s decision record, and the description of the certificate in the Checklist as a s.438 certificate lead the Tribunal to conclude that the certificate provided was in fact issued pursuant to s.438 and not s.437 of the Act. The Tribunal then considered it appropriate to address the validity of the s.438(1) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”. The reason stated in the certificate is that disclosure would prejudice the security, defence, or international relations of Australia, which is a basis for claiming public interest immunity. The Tribunal accepts that some of the folios[3] covered by the certificate refer to internal integrity processes for visas and so this knowledge could influence adversely the integrity of the system. A separate folio is an identification test checklist which is not relevant and does not contain such information. When these matters were raised with the applicant and the Tribunal indicated that it appeared the certificate was valid, and that it would put any adverse relevant information under s.424AA of the Act, the applicant did not offer any objection. The Tribunal finds that the certificate is a valid certificate and has disclosed the adverse information to the applicant for comment and/or response.
[2] folios 26, 28, and 56 to 63
[3] 56-63, 26
The Tribunal
The applicant provided a copy of the delegate’s decision record to the Tribunal. He did not provide any written submissions or documents to the Tribunal before the hearing as requested by the Tribunal in its hearing invitation.
The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The applicant had initially requested a Fula (referred to as Pulaar) interpreter; he would like an interpreter in his own language but he noted that it would be difficult to find one; he speaks French, and his English is not that good. The Tribunal noted that efforts had been made but the Tribunal had been unable to source an interpreter in the requested language, although it had organised a French interpreter. It transpired that the applicant’s French was very good and that he was able to communicate using the interpreter organised. The Tribunal said to him that if he had any difficulties in communicating he should let the Tribunal know. The Tribunal was satisfied that the applicant was able to communicate and to understand the proceedings and present arguments and evidence.
Prior to the hearing the applicant had indicated that he had had some soccer injuries on the Sunday; by the time he appeared at the Tribunal however he did not indicate that he could not proceed and he confirmed that he had come to the Tribunal ready to give evidence.
The applicant’s evidence included the following:
·     The applicant told the Tribunal that he had assistance with his application form and statement; he told his cousin’s husband what to write, it was written down and there is no reason that the information would not be true and correct.
·     The Tribunal discussed its concerns in relation to his identity and ethnicity. He claimed that he was informed that he would not get a passport in his real name because it showed his ethnicity ([Surname 2]) so he changed his name to [Surname 1] (the majority ethnicity). The Tribunal put to the applicant that it did not have information before it suggesting that ethnic Fula would have been unable to obtain a passport. The applicant said words to the effect of that’s what he was told; he also said that his age in the passport was made four years older.
·     When the Tribunal asked the applicant what he feared would happen if he returned, he said that he would be arrested or killed for political reasons because he is a member of the party. When asked if there was any other reason, he said he needed time to think; he then said that the water and lack of electricity makes you sick. The Tribunal asked if there was any other reason and he said that his family has nothing and he wants to work and help them to survive. He then said after being given a number of opportunities to explain any other concerns or worries, that there were no other reasons not to return to Guinea.
·     At the end of the hearing the Tribunal put to the applicant that it had concerns that it did not know who he was and it asked him if he wanted to say anything. He said, “I am me” and while the Tribunal acknowledged that, it said it was not sure who he was and if he has been telling the truth about his situation at home and his sexuality. It said that it may not find that he faces a real chance of serious harm or a real risk of significant harm.
Further relevant evidence and information is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence, which when considered as a whole, led to doubts as to his credibility. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned with a number of omissions in the applicant’s claims at hearing, including:
·     When the Tribunal asked him what he feared, or what worried him about returning to Guinea, he made no mention of being harmed because of his homosexuality nor did he mention any concern related to homosexuality. This was put to the applicant as a concern, noting that he had been given a number of opportunities to say what worried him about going back. In response he said that he panicked and he didn’t mention this, but it is part of it. The Tribunal considers that if the applicant was a homosexual, and having regard to the attitudes in Guinea associated with homosexuality, he would have mentioned this as a reason why he did not wish to return to Guinea when asked.
·     That the applicant claimed he forgot to mention that his father was killed and that all of his family was assaulted. In this regard, the Tribunal had asked the applicant about the adverse events that had occurred in Guinea and he said he had been arrested twice, the rallies overflow, the police can come to your suburb and come to your house and hit your family. When the Tribunal asked whether that happened to him, he said yes, there was a demonstration and they came to his home, beat up his sister and she was hurt. The Tribunal asked if anything else happened and he said that his mother is ill, she had cancer and her foot was amputated by a doctor but nothing else bad had happened in Guinea. The Tribunal put to the applicant that according to his statement, when the people came to his home on 15 October 2013, his father had been killed and all the family members were beaten and assaulted at the same time. The applicant said that he forgot. The Tribunal put to the applicant that if it were true it would think that he would not have forgotten; in response he said it that is true about his father. The Tribunal isn’t persuaded that on the evidence before it that there is a credible reason for the applicant to forget that his father was killed and that all his family members were beaten up on a specific date.
·     When the Tribunal had asked the applicant to explain all the problems he had experienced in Guinea, the only problems relating to homosexuality was that some family members refused to talk to him and people threatened him. The Tribunal sought confirmation of this and he agreed; he said that there were no other problems. However, in his statement he had claimed that in his workplace he had been laughed at and pushed over for being gay; his arm was broken. When this was put to the applicant he said that he forgot all that because there were too many questions and he panicked.
·     In addition, the Tribunal put to the applicant that he had omitted to mention at hearing the claim in his statement that when he was at school he was beaten up and stoned in the street. The applicant again said that he panicked and forgot to mention this.
The Tribunal has considered the applicant’s claims and explanations but is not satisfied that the applicant would forget these significant matters, and tell the Tribunal that there were no other problems if these events had occurred. The Tribunal considers that this undermines his claims and credibility.
Secondly, the applicant gave changing evidence as to whether or not he had had sexual encounters in Guinea. When asked by the Tribunal, he said he had had no sexual encounters in Guinea. He said this was because it is forbidden. By this time the applicant had told the Tribunal that he had only had three sexual encounters (with the same person) in Australia, and so the Tribunal sought his confirmation that, therefore, in his entire life he had only had three sexual encounters (with the same person in Australia) and he agreed. It was only when the Tribunal asked about whether he had gone to any locations where he could meet gay people in Guinea that he changed his evidence and said that he did have homosexual encounters in Guinea but he had to hide. He then said that he had eight encounters with the same person, [name deleted]. The Tribunal put to the applicant that he had just said no, that he had had no other sexual encounters other than three encounters with one person in Australia. He said yes. The Tribunal asked why he said that if he was now saying that he had sexual encounters in Guinea. He then said he did not recall the question. The Tribunal does not find this persuasive given that the question had been asked and answered a few minutes earlier.
The Tribunal’s concerns in this regard were heightened because the applicant had told the delegate a different version, namely, as set out in the delegate’s decision record), that he would go to meet other homosexuals at clubs for temporary liaisons and he did not have any longstanding homosexual relationships in Guinea. The Tribunal is concerned that the changing number of people with whom he had encounters in Guinea adds to the concern about his changing evidence from having no encounters, to having eight encounters with the same person.
Thirdly, the Tribunal was concerned with the applicant’s changing evidence as to his first sexual encounter. When the Tribunal asked him when he had his first sexual encounter, he said that it was in 2013. However, when the Tribunal asked how old he was at that time, he did not appear to know and he started to write notes. The Tribunal asked why he needed to make notes in order to tell the Tribunal how old he was when he had his first sexual encounter, and he said it is because he has two IDs and the year of birth is different. The Tribunal said it was just asking for the truth, not anything different. He was then silent. He then responded he thinks that he was [age] years old. The Tribunal said that if he was [age] years old in 2013, then this would mean that he was born in [Year 3]. The Tribunal noted that this was a different year of birth to the two other years he had given; initially in his application form he claimed to be born in [Year 1]; he then corrected this and said that his real birth year was [Year 2][4]. Now however he was claiming that he was born in [Year 3]. The Tribunal asked if he could explain and he only said that the passport was dated [Year 1] but he was born in [Year 2]. He did not offer a reasonable explanation as to why he gave a third year of birth ([Year 3]). He then said that he didn’t say he was born in [Year 3]. The Tribunal noted that his evidence was that he had been 20 years old in 2013, which would mean that he was born in [Year 3]. The applicant then said that he was “around” 20 years old. The Tribunal suggested that this was three years out. It would mean that if he was born in [Year 2] and had his first sexual encounter in 2013, then he would have been [age] when he had his first sexual encounter. He agreed and said yes, that’s what he meant, in his 20’s.
[4] As set out in the delegate’s decision record.
The applicant’s evidence relating to his homosexual feelings also changed. He told the Tribunal that it was also in 2013 that he realised he was gay, and he had no homosexual feelings before that. As he had told the Tribunal that he was [age] years old in 2013, the Tribunal was concerned with this evidence because in his statement he was 18 years old when he realised he was gay (the Tribunal showed him his statement). The Tribunal noted that there was a five year difference as to when he knew he was gay, which seemed a significant difference. He said he doesn’t recall saying that in his statement.
The Tribunal then asked if it is correct that he knew that he was gay and first had sexual feelings for men at the age of [number] years, and he said yes. The Tribunal noted that this was also different however to what he said in the delegate’s interview, and it asked whether he recalled what he had said then; he said he did not recall. The Tribunal noted that he had said that he was 20 years old when he knew he was gay/had same-sex feelings. The Tribunal asked how his evidence could be so different and he was silent. The Tribunal asked if he could explain and he said he doesn’t recall saying this. The Tribunal does not find his explanations to be satisfactory and is concerned that on each of the three occasions that he has given evidence as to when he knew he was gay, it has been different (and the range is five years, a significant difference).
The Tribunal considered that the above evidence undermined his claims and credibility.
Fourthly, the Tribunal was concerned with the applicant’s evidence as to his political involvement. As put to him at the hearing, he did not claim in his statement that he was part of any political party (he had only claimed to have problems/fears based on his homosexuality and ethnicity). Then, at the delegate’s interview, he said firstly that he was an active member of the UFDG, then he said he was not a member, instead he was just an informal supporter[5]. He told the Tribunal, however, that he was a member of the UFDG, and he received a membership card (and had been arrested when attending political rallies, discussed further below).
[5] As set out in the delegate’s decision record
The applicant said that maybe there was a misunderstanding at interview. Concerning his failure to mention political involvement in his statement, he initially said that he did write this; but it was not however in his statement.
The Tribunal considers that if he had been a member of a political party he would have mentioned this in his statement, and he would not have changed his evidence at interview to say that he was not a member, he was a supporter. The Tribunal had further concerns with his evidence in this regard, as it asked him when he joined the party and he said he could not recall. The Tribunal asked him to give an approximate date and he said could not even say approximately when he joined. The Tribunal considered this difficult to accept.
Further, when the Tribunal asked the applicant what he did as a member of the party, he said that he was part of the group who organised the demonstrations/rallies. When asked if he did anything else, he said no. When asked how many demonstrations/rallies he organised he said lots, he can’t count how many. The Tribunal said it just wanted to have an idea of how many and he continued to not respond. He then said if he said two or three, it would not be correct. He then said he organised between 10 to 20 rallies from 2007 to 2014. The Tribunal noted however that he had told the delegate[6] that between 2010 and 2014 he had personally organised eight demonstrations, and it did not understand why his evidence was so different now. He then said that maybe the translator at interview did not understand him.
[6] See delegate’s decision record
The Tribunal has considered whether it should give the applicant the benefit of the doubt concerning the issue of translation at interview. However, the Tribunal notes that even at hearing his evidence was initially very evasive as to how many demonstrations he was involved in organising; the Tribunal would think that he would have been able, when asked initially, to give some idea if he had organised demonstrations/rallies. He also gave changing evidence as to what he did as a member, initially telling the Tribunal all he did was organise and attend rallies and demonstrations, but later saying that he also attended meetings every weekend.
The applicant gave further changing evidence about his political involvement. As noted above, when asked what the applicant feared upon return he said he would be arrested or killed for political reasons because he is a member of the party. The Tribunal put to him that according to country information, the authorities are not killing/arresting all members of the party. He agreed they don’t kill everyone but said that some people are targeted. The Tribunal put to the applicant that it would appear that he was not targeted by the authorities because if he was a person of interest who was arrested in 2012 and 2013, he no longer appeared to be, noting that he remained in Guinea until November 2014 and he was not arrested again. The applicant said he was not arrested because there were no rallies. The Tribunal noted however that this was inconsistent with his previous evidence to the Tribunal which was) that he had been organising demonstrations in 2014 and it reminded him of that evidence. In response he said that he didn’t say 2014; then he said that there were no demonstrations in 2014. The Tribunal notes that this was contrary to his earlier evidence which was that he organised between 10 to 20 rallies from 2007 to 2014. The Tribunal considers that the applicant’s evidence appears to change to respond to the Tribunal’s questions, which undermines his credibility.
Fifthly, the Tribunal had concerns about the applicant’s passport, which he told the Tribunal he was able to obtain in a different name and with a different date of birth through corruption (but without paying a bribe). The Tribunal asked whether, after obtaining his passport, he then obtained a visa and left, and he said yes. He said it took about six months and then he was able to leave. The Tribunal put to the applicant that this did not make sense given that the passport was issued [in] 2011, which was three years before the applicant came to Australia. The applicant said that he did not understand; the Tribunal then showed him the typed identity page of his passport[7] and he said “they” wrote that down but it is not correct. The Tribunal asked who is “they” and he said words to the effect that “you pay and they wrote the date as [2011]”. The Tribunal asked why the authorities would do that; if the passport was issued six months before leaving, then it would have been issued in mid-2014. The Tribunal asked why the passport would have a date of three years earlier. The applicant said he didn’t know. The Tribunal noted that according to the delegate’s decision record, the Department had the passport forensically examined and it was found to be a legitimately manufactured document[8]. The Tribunal noted that the passport had a name different to that which he now claimed to be his and a date of birth different to that which he now claimed to be his (and it contained his photo) and it has been examined and found to be legitimate. The applicant said that he can’t explain. The Tribunal considers that if the applicant received a fraudulently obtained passport as claimed, and as a Fula he was at risk in trying to leave the country without a false passport, and if he had already come to the adverse attention of the authorities, it would be reasonable to expect that he would have examined the passport when he received it in 2014 and that he would have seen that it was issued in 2011 and not 2014. This is in particular because at another stage of the hearing, the applicant volunteered another detail from that passport to the Tribunal (namely that his occupation recorded on the passport was [Occupation 1]). The Tribunal was not satisfied that the applicant was being truthful in his evidence about his passport.
[7] Folio 27 DIAC file
[8] Delegate’s decision record page 5
Sixthly, the Tribunal had a number of concerns about inconsistencies with his name, identity, background, date of birth and details of his family members.
It is noted that the applicant arrived in Australia holding a passport in the name of [Name 1], born [Date 1]. He completed an application form seeking protection one month after his arrival in Australia; in that form he maintained the name and date of birth which was recorded in his passport; he also gave his father and siblings the surname [Surname 1] in his application form. When he attended at interview however he claimed that his real name was [Name 2] born [Date 2].
Maintenance of false details in his protection visa application which he swore to be true: The Tribunal noted that he had completed his application form about one month after he arrived. Instead of completing his form with his real name, he maintained that his name, and his parents’ name and siblings’ names were [Surname 1], not [Surname 2]. He said that is because this was the name on his passport. The applicant said he thought that he should tell his real name at the interview. The Tribunal noted that he had one month from his arrival until completing those forms; it asked why he didn’t go and get migration advice. He said he was not familiar with immigration and neither was his cousin’s husband but he knew he had to lodge an application to stay here. The Tribunal notes his evidence that his cousin had been living in Australia for seven years, and that after one month they had sent him to an asylum seekers organisation to assist him with accommodation. The Tribunal is not prepared to accept that the applicant did not think that he should have obtained immigration advice (noting he had previously obtained assistance with matters relating to immigration when he was in Guinea and that a lawyer had been involved, and that his cousin and her husband had been living in Australia for a significant period of time and that his cousin had already lodged an application with the Department on the basis of her marriage) and instead he was prepared to maintain these untruths in his application form.
These concerns were heightened because the applicant told the Tribunal that the names of his family members, although claimed to be [Surname 1] in the protection visa application form, were really [Surname 2]. There were however inconsistencies in the details of the two family members discussed with him. He said that his brother [Given name 1 Surname 1] was actually [Given name 1 Surname 2]. When asked for his brother’s birthdate, he said [year] (this however was inconsistent with the applicant’s protection visa application form where he provided a specific date of birth for his brother of [date]) Further, he said his sister [Given name 2 Surname 1] ([her name in the application form) was actually [Given name 2 Surname 2], he said she was [age] years old, but according to the application form she was born on a specific date of [date] (and thus is [older]).
Inconsistent evidence as to [his work] in Guinea: When the Tribunal asked the applicant for the last work he had in Guinea, he said administration. When the Tribunal asked for more details, he then said [Occupation 1]. When the Tribunal asked him whether that was in the government, he then changed his evidence and said he didn’t work in [Occupation 1], he only studied it. His only job was to work with his brother in [another occupation]. He did not do anything before that; when asked he said he did not do work experience. The Tribunal put to him that according to his protection visa application form, between 2012 and 2014, he did work experience as [Occupation 1] in [Employer]. He said he didn’t do it, maybe it was incorrectly translated. The Tribunal put to the applicant that this was something very specific and difficult to accept that it was just incorrectly translated. The applicant said that maybe he saw his passport (which stated that he was [Occupation 1]). The Tribunal is not prepared to accept that this is an error, especially as he told the Tribunal earlier that there would be no reason for his application form to be incorrect.
Further, the Tribunal put to the applicant adverse information from the folios covered by the s.438 certificate, namely that the visa the applicant had received to come to Australia was a Guinean-government sponsored visa indicating that that he had been working for the government. Given there had been suggestions by the applicant in his written material (referred to in the above paragraph) that he had been working (albeit work experience) in [Employer], this appeared to corroborate the information that he had been working for the government and had been in receipt of a government sponsored visa. It was put to the applicant that this would undermine his claim that if one is not a Mandingo one cannot be employed in government. The Tribunal put to the applicant that this could mean that he is a Mandingo and thus could return home and get employment; or he is not a Mandingo but was able in any event to work in the government. The applicant said in response that the man who helped him to come here works for [Employer] and supplied documents stating that the applicant was working there. While it is possible that such documents were falsified (as set out in the delegate’s decision record), the Tribunal does not find the applicant’s evidence or claims about his involvement with the government in [Occupation 1] to be satisfactory. The Tribunal considers that the applicant has not been forthcoming about his past and background in Guinea and that the evidence about his work/work experience further undermines his credibility.

On the basis of the above the Tribunal did not consider that the applicant was a witness of truth.
Other matters
Homosexuality: The applicant gave some other evidence that the Tribunal did not consider particularly convincing but it was prepared to not draw an adverse inference from it. For example, when the Tribunal asked the applicant what he had done in Australia apart from work in a factory and [another workplace] he said, nothing, he had just worked. He did not suggest that he had been going out or having relationships or engaging in any homosexual activities. It was only when the Tribunal suggested that he must have done more than work, he said he plays soccer. He only then said that he no longer goes out; when the Tribunal asked why, he said he works six days a week and plays soccer on the other day so he has no time to go out. The Tribunal noted that he made no mention of homosexuality (one of his reasons for leaving Guinea). Although the Tribunal was concerned that the applicant did not mention any homosexual activities when asked what he did in Australia (as noted above his homosexuality was a reason to leave his home country) it decided to not draw an adverse inference from this omission.
He said he thought the last time he went out was about one year ago. When asked where he went when he did go out he said [Venue 1], he attended two times. The only other locations he has been to were dancing at [Venue 2] in [Suburb] and he has not gone out anywhere else since he was here. When asked if he had had any relationships or encounters here he initially said no. When asked why, he said that he didn’t speak English well enough and he doesn’t drink or smoke. The Tribunal noted that people may still go out even in such circumstances. When asked if he did anything of a sexual nature he replied “not much” and then said he had three sexual encounters with one person; he can’t recall the person’s name, that is the only person he has had an encounter with. The Tribunal put to the applicant that he had already said he had had no encounters in Australia; he then said that he may not have understood what that meant. When the Tribunal suggested it was difficult to accept that he could not recall that one person’s name given he was the only person with whom he had a sexual encounter in Australia, he then gave a name, [deleted]. Although the Tribunal did not consider this evidence to be satisfactory, it decided not to draw an adverse inference from it.
The Tribunal noted that he had been in Australia for four and a half years, and asked why he thought he had not had more encounters than that. In response he said that because he doesn’t go out it is not easy to meet people who speak French. The Tribunal noted that one does not need to fluently speak a language in order to meet someone. He had been successful in getting and maintaining jobs, he had joined a soccer team, and found accommodation in a foreign country. In response he said he is naturally quiet.
Although it has not drawn any adverse interest from the above, equally the Tribunal does not consider this evidence to be assist in overcoming the Tribunal’s concerns.
Political awareness: The Tribunal notes that the applicant had some political awareness, including the names of the President, the Vice-President and another leader of the UFDG party. This does not however mean that his claims of involvement in that party are true.
Further, when he told the Tribunal that he had attended meetings every weekend, the Tribunal considered his evidence in this regard to ascertain the weight to be placed on this evidence. However, when the Tribunal asked the applicant what happened at meetings, his responses were very general, even when the Tribunal put to him that it did not sound like he attended meetings but was just giving generalities, and gave him an opportunity to tell it details of what had happened at any specific meeting that he could recall. He repeated generally that the president of the party discussed the organisation of the party, how the party would function and how to organise rallies and what we would do when come to power and if some members are not being active enough they can be replaced. The Tribunal was not satisfied that this general evidence could overcome the Tribunal’s concerns with his evidence in relation to political involvement ; further, as noted above, when he had been asked what he did for the party, he did not even initially mention his claimed participation at weekly meetings.
The applicant’s varying identity documents: The applicant has produced a number of documents many of which he claims are falsified. This includes his passport in the name of [Name 1] (which he said that the Department had retained). The Tribunal accepts that this was legitimately manufactured as set out in the delegate’s decision record; the applicant agrees this is the case but claims that it contains false details which were provided on his behalf. The Tribunal is not prepared to place weight on the applicant’s evidence about his passport.
He later produced to the Department a photocopy of a birth certificate in the name of [Name 2] born [Date 2]. He brought a Guinean driver’s licence to the Tribunal which was a folded book (in the name of [Name 2] (born [Date 2]), as well as his Australian driver’s licence (in the name of [Name 1]).
He also claimed that his cousin’s maiden name was [Surname 2] but that he didn’t know her husband’s name (she arrived on the basis of marriage). The Tribunal put to him that he lived with them when he arrived and he agreed that he lived with them for one month, but he maintained he did to know the husband’s surname.
The applicant said that his user name on [Social media] is [Username], which could stand for [Name 2] (or anything else) so the Tribunal is not prepared to place any weight on this.
The Tribunal noted that his signatures on the protection visa application form, the passport, the letter, as [Name 1], all appear the same, which could indicate that he is [Name 1]. In response the applicant said that he signed them all the same way, but his name is [Surname 2].
The Tribunal noted that the applicant had produced a letter in the name of [Name 1][9] which was provided in support of the grant of his [temporary] visa application which stated that he was [Occupation 1], he wanted to come to Australia for the conference, share his experience, and then return home and use the knowledge gained for the benefit of his country[10].
[9] DF19
[10] The applicant told the Tribunal that he also produced this letter with his protection visa application to the Department.
The Tribunal said to the applicant that it is hard to be satisfied as to who he is. It noted that he was aware (and had given evidence) that false documents are available from Guinea. The Tribunal is not prepared to place any weight on the applicant’s documents, given his unsatisfactory evidence and their inconsistencies.
Nerves: The Tribunal has considered that the applicant could have been nervous in providing his evidence; it does not accept however that this can explain the difficulties with his evidence.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth when claiming to hold fears upon which he has based his protection claims.
Findings on the applicant’s claims
The applicant’s nationality
The Tribunal does not accept that the applicant is a witness of truth in relation to the majority of the matters relevant to his claims and background. The Tribunal is prepared to accept that the applicant is from Guinea and that that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Guinea. It is prepared to accept that his first name is [Given name], and that he was born in Guinea somewhere between [Year 1] and [Year 2].
Past harm
On the basis of the adverse credibility finding the Tribunal is not prepared to accept that any of the applicant’s claims of past harm, targeting, adverse treatment or attention, discrimination or arrests or political membership or involvement are true. The Tribunal does not accept that the applicant obtained a passport in the circumstances claimed.
Homosexuality
The Tribunal carefully considered the applicant’s assertion that he became homosexual in Guinea when he was aged somewhere between [age] and [age] years, and that he is homosexual now, however as put to the applicant at hearing, it had a number of concerns with his evidence in this regard, and with his credibility generally. The Tribunal does not accept that the applicant is or was homosexual, nor that he faces any chance or risk of harm for such reason. The Tribunal does not accept he has ever been imputed as homosexual in Guinea nor that he faces a real chance or real risk of being so imputed in the reasonably foreseeable future in Guinea.
Ethnicity/politics/work/protests/general violence
The applicant claimed that he was Fulani. The Tribunal notes that at the delegate’s interview they used a Fulani interpreter, and that interpreter had said to the delegate that [Surname 2] is a Fulani name, and [Surname 1] is a Mandingo name. The Tribunal said to the applicant at hearing that it was not sure if he was Fulani or Mandingo; this arose from credibility concerns as well as considering for example his assertion that Fulani could not get government jobs but that he appeared to have worked for the government (or at the very least to have had work experience in the government). It also put to the applicant that perhaps he spoke both languages (such that a request to use a Fula interpreter does not mean that he is necessarily Fulani).
The Tribunal noted at the hearing that even if it accepted that he is Fulani, although the head of the government is Mandingo and politics often follows ethnic lines, if it did not accept that the applicant had the claimed involvement with the opposition party, then on the country information before it, it would not appear that the level of chance or risk of harm was a real one. The Tribunal asked if he wished to comment and he said no. The Tribunal is not satisfied on the evidence before it that the applicant has suffered past harm on the basis of his ethnicity. The Tribunal is not satisfied as to his ethnicity, but it has considered the circumstances if he is Mandingo, and if he is Fulani. The evidence does not suggest that if the applicant was Mandingo he would face a real chance of serious harm or a real risk of significant harm in the future on that basis. If he is a Fulani, while the country evidence referred to in Annexure B indicates that there can be some discrimination, adverse treatment and violence towards Fulani, the Tribunal is not prepared to accept that this applicant (who it finds has not suffered discrimination or harm based on his ethnicity in the past) faces a real chance of serious harm or a real risk of significant harm in the future on that basis. It finds that he is educated, and has worked for government in some capacity, and it finds it reasonable to consider that the same conditions will apply for this applicant upon return.
The Tribunal does not accept that the applicant has had any political involvement in the past nor that he has ever been imputed or targeted as an opposition supporter or member. It does not accept that he has any motivation to be politically involved nor does it accept that he faces a real chance or a real risk of suffering serious or significant harm by being imputed as an opposition party member or supporter upon return or in the reasonably foreseeable future.
At the hearing the Tribunal noted that there had been protests and general violence[11] and said that it would consider if he faced a real chance of serious harm or a real risk of significant harm for these reasons. The Tribunal noted that another consideration in this regard would be an element of systematic and discriminatory conduct (refugee) and whether risks were faced by the population generally and not the applicant personally. The applicant did not wish to comment. The Tribunal is not satisfied on the evidence before it that the protests and the response of the authorities or general violence are at such a level amounting to the applicant facing a real chance of serious harm or a real risk of significant harm as a result in the reasonably foreseeable future.
Electricity/safe water
[11] See Annexure B
The Tribunal also noted that the applicant had referred to electricity shortages and unclean water at hearing. It explained that it would consider whether he faced a real chance of serious harm or a real risk of significant harm for those reasons; it noted that he had previously lived there and he was healthy and it did not appear that [there was evidence before it to show] he would face a real chance of serious harm or a real risk of significant harm for those reasons. It asked if he wished to comment and he said no. The Tribunal considers that if the applicant had genuine concerns in this regard that he would face a real chance of serious harm or a real risk of significant harm, he would have said that he did. The Tribunal is not satisfied that on the evidence before it, the applicant faces a real chance of serious harm or a real risk of significant harm for these reasons.
Entering the country
The Tribunal does not accept on the evidence before it that the authorities stopped Fulani from leaving the country (nor that are they stopped from entering); similarly it does not accept that this is the case for Mandingo. The Tribunal finds that the applicant did not have any difficulties in leaving Guinea. He has not made a specific claim to the Tribunal that he would have difficulties returning to Guinea due to any passport or other immigration issue, and the Tribunal considers that he would have done so if he considered that he would face harm for this reason, also noting that he was given numerous opportunities to tell the Tribunal his concerns upon return. In the event that there is any implied claim in this regard, the Tribunal is not satisfied that the applicant (who has not been truthful about his passport or background) has a profile that would cause him harm at the airport on return (or in obtaining a passport if need be); the Tribunal considers it most likely that he has official connections and that he was sponsored by the government to come to Australia.
Conclusion relating to refugee claims
The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Guinea nor does it accept that there is a real chance of serious harm upon return and in the reasonably foreseeable future.
The Tribunal is not satisfied on the findings above that the applicant will have any need to access state protection (noting also that it considers that he has never sought to do so in the past).
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any adverse interest as claimed or that he has the political/homosexual profile or opinion as claimed. It finds that he made up his protection claims and much of his background. The Tribunal does not accept that there is any reason for him to face a real risk of adverse attention or harm amounting to significant harm (as discussed in the Annexure). It has considered that his ethnicity is either Mandingo or Fula, but is still not satisfied that he faces a real risk of significant harm as set out in Annexure A for reasons of ethnicity, noting that it has found that he has never before suffered such harm and it is not satisfied that the conditions for a person of his profile have changed such that he will now face a real risk of significant harm for any reason. It considers that he will return, pass through immigration, and continue to live in Guinea and, as before, he will work, and not face a real risk of significant harm for any reason including protests, general violence, or the responses of the authorities or imputed political opinion or imputed homosexuality or a lack of electricity or safe water. Having considered his claims and circumstances on a cumulative basis it is not satisfied that he faces a real risk of significant harm for any reason.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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).
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
ANNEXURE B
Although the formation of political parties along representation of a single ethnicity is outlawed,[12] Freedom House reported that most of the registered political parties in Guinea have ethnic bases, and new parties tacitly pledge allegiance to an ethnic group.[13] This has resulted in Guinean political disputes being exacerbated by ethnic divisions.[14] Human Rights Watch noted that the long-delayed local elections held in February 2018 were marred by allegations of electoral fraud, and “ethnic and communal tensions led to deadly clashes between protesters and security forces.”[15]
[12] US Department of State, above n 1, p. 14.
[13] Freedom House, above n 5.
[14] Ibid.
[15] Human Rights Watch, World Report 2019 – Guinea, 2019, (accessed 10 May 2019).
The Political Handbook of the World noted that the ruling government used its power to ensure the primacy of the Malinké (Mandingo) ethnicity.[16] Although the Mandingo people make up only 20 percent of the population, 47 percent of the cabinet was Mandingo, leading to accusations of ethnic bias.[17]
[16] ‘Guinea,’ in Tom Lansford, ed., Political Handbook of the World 2016-2017, (CQ Press, 2017), vol 1, 597, 603 – 604 (accessed 10 May 2019).
[17] Ibid.
Human Rights Watch reported that the security forces’ conduct has improved, and that a 2015 law on public order had given some civilian oversight in relation to the security forces.[18] Nevertheless, there were numerous reports of excessive force by the security forces, including:
[18] Ibid.
…12 people were shot dead in Conakry in 2018 by security forces during the often-violent protests that followed the disputed local elections and teachers’ strikes. In several cases, deaths were a result of police or gendarmes firing deliberately at protesters, while others were killed by stray bullets, according to witness accounts. Two members of the security forces were killed by protesters.[19]
[19] Ibid.
8 November 2018: Guinean soldiers shot dead two men Wednesday night in a suburb of the capital city Conakry, where protesters and security forces clashed earlier in the day, sources told AFP:

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Citations

1607317 (Refugee) [2019] AATA 5990

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2019] AATA 5990

28 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction