1611522 (Refugee)

1611522 (Refugee) [2017] AATA 131 (23 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611522
COUNTRY OF REFERENCE:                  Cameroon
MEMBER:Tony Caravella
DATE:23 January 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 January 2017 at 11:23am

CATCHWORDS
Refugee – Protection visa – Cameroon – Particular social group – Homosexuals – Subjected to harm – Homosexuality illegal – Relocation not possible – Credibility issues – Fraudulent documents – Failed to seek protection in other countries
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2016 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] August 2015. The delegate refused to grant the visa on the basis of finding the applicant’s protection claims were not credible. The delegate found the applicant failed to meet s.36(2)(a) of the Act, and fails to meet s.36(2)(aa) of the Act. The delegate also found the applicant is not a member of the family unit of a person who holds a Protection visa.
Background and protection claims
The applicant’s written claims for protection are set out in a handwritten statement signed by the applicant and which he submitted to the Department of Immigration and Border Protection. In summary, the applicant claims to be homosexual and that he became attracted to men from the age of [age]. He claims that in January 2012, he and his partner were caught and badly tortured, insulted, and treated as outcasts. He claims his partner was killed during that incident.
The applicant writes that he fears if he returns to Cameroon he will face persecution from the authorities there or that he will be tortured or killed by the local community. He claims his family will also be at risk as they will receive threats from the authorities and the local community.
He claims, amongst other things, that news of his homosexuality has spread and that he is unable to relocate because homosexuality is unlawful in the whole country.
He claims the authorities in his country cannot protect him because it is against the law to be a homosexual and that he risks facing a prison sentence with torture and maltreatment that would lead to his death.
The delegate’s decision
The applicant attended a Protection visa interview [in] March 2016. The delegate found the applicant had provided false or misleading information or documents. The delegate concluded the applicant had provided fabricated documents which cast doubts on his evidence in relation to his claimed homosexuality. Ultimately, the delegate found the applicant’s claim regarding his homosexuality was not credible and that he does not meet the requirements for the grant of a protection visa.
Application for review
On 28 July 2016, the applicant applied for a review of the delegate’s decision by this Tribunal. A copy of the delegate’s decision record accompanied the application for review.
On 6 September 2016, the Tribunal received a three-page statement signed by the applicant and titled “Comments on the protection visa application assessment findings of fact, sexual orientation and others”. The Tribunal has considered the submissions contained in this document where he addresses his return to Cameroon, family support, his relationship with [Mr A], warrants of arrest, protection in other countries, and other matters.
On 16 September 2016, the Tribunal received from the applicant a copy of a death certificate for a [Mr B]. The Tribunal also received a copy of a Torture and Trauma Assessment Report prepared by [Agency 1].
On 17 September 2016, the Tribunal received further written submissions on the evidence the applicant had previously provided from [Newspaper 1]. This submission includes a copy of a letter dated [in] June 2014 purportedly from [Newspaper 1].This letter is titled Corrigendum. That letter states the article which the applicant had submitted relating to him showing a publication date of Monday June [date], 2013, was erroneous and that the newspaper’s “in-depth investigation” has proven the article was in fact published on Thursday June [date], 2014.
Tribunal hearings
At the time of the hearings, the applicant was held in immigration detention. He therefore participated in the hearings by way to video conference.
Hearing held 12 September 2016
The applicant began his evidence by confirming he is a national of Cameroon and he was born in [year] in [town], Cameroon. He said he arrived in Australia [in] July 2015 as a holder of a [temporary] visa. He said the Department of Immigration (the Department) told him he had provided incorrect information on his [temporary] visa and so he has been detained in immigration detention since his arrival in Australia.
The applicant told the Tribunal he departed Cameroon in April 2012 and went to [Country 1]. He said he travelled to [another country] to obtain a visa to enter [Country 1] and he also went to [Country 2].
He told the Tribunal that he had tried to get visas to enter other [countries]. He said he applied for [various] visas for these places.
The Tribunal referred the applicant to the delegate’s finding that he had provided documents indicating that he was a permanent resident of [Country 3] and asked him to explain this. He told the Tribunal that he wasn’t the one who made the application for that. He submitted that he had a friend in [Country 1] whose name is [Mr C]. He said they played [sport] together in [Country 1]. He said [Mr C] told him that for [amount] he could get him a visa to come to Australia. He told the Tribunal he was aware that there was some irregularity with [Mr C]’s activities in obtaining the visa, in other words the visa was not from an official source. He told the Tribunal that he was desperate and that he tried to do the right thing.
When asked by the Tribunal for evidence as to his claim to be homosexual, the applicant said he was always attracted to men. He said as he was growing up he was getting these feelings. He said as a child with [brothers], they all used to sleep in the same room.
The applicant told the Tribunal that he has never told anyone about his sexuality in Cameroon because he was afraid. He said that at school, he didn’t want to sit with girls. He said he completed [number] years of primary school and then [number] years of secondary school.
He went on to say that he became friends with [Mr A] at school. He said [Mr A] would sit next to him. When asked what attracted him to [Mr A], he said [Mr A] had a feminine walk. He said the relationship started as a friendship. He said [Mr A] would tell him that he looked good and then eventually asked him if he felt anything towards him. The applicant said he told [Mr A] he was afraid. He then referred to a day when they had what he called “a gala” at the school. He said they had something to drink and then they started kissing and two or three days later [Mr A] told him he was going to show how they could make love to each other.
He said they had their first sexual relationship in [Mr A’s] house. He referred to performing oral and anal sex.
He described how he was expelled from school because the teachers would always see him together with [Mr A]. He said pressure was placed on his parents and the administration which caused them to be expelled from school. He said his parents found out about it when he was expelled and his father was very angry. He said his father was a [occupation]. He said he fell out with his father but since then the relationship improved.
When asked what being homosexual means to him, the applicant said its being in love with another person. He said he feels more secure with a person of his own sex. He said there is nothing in females that attracts him. He said the build of a man attracts him.
He told the Tribunal that the relationship continued until 2012. He said in that year on a particular day he was in [Mr A’s] room and members of the community knocked on the door. They were armed with machetes. He said they pulled them out of the room and [Mr A] was killed.
The applicant told the Tribunal that this attack occurred in January 2012. He said he was also beaten and bleeding and his [siblings] took him somewhere to hide. He said he was taken to an abandoned house. He said his [siblings] helped clean his wounds and got him clean clothes and told him to go to [village] where they said he would be safe. He said he did not receive any medical treatment on that occasion.
The applicant then went on to describe how in 2005, while at the markets, a man wanted to touch him. He said the man told him they knew the applicant was gay, and then the man and others started beating him. He said on that occasion his [siblings] also came to help him.
The applicant then referred to an occasion in 2011 where he was at a birthday party of a former [classmate]. He said that someone started shouting out that the applicant was gay and they started beating and punching him. He said he was also hit with a chair.
The applicant told the Tribunal that he is a Catholic and his faith has become stronger while he has been in immigration detention. He said in Cameroon his family are Presbyterians but the applicant went to a Catholic primary school.
The Tribunal invited the applicant to comment on the delegate’s decision record. He said the delegate referred to the applicant going to [Country 4] to obtain the [Country 1] visa and once he obtained that visa he returned to Cameroon. The applicant said he wanted to clarify that he did not go to [Country 4] but an agent got the passport stamped and he was given his passport when he was boarding the flight to leave Cameroon.
In respect of the delegate’s discussion on how his family appears to have accepted him, the applicant said that most families in Cameroon will not accept a homosexual but his own immediate family had compassion. He said his extended family would not accept him as a homosexual.
In relation to returning to Cameroon, the applicant said he was accused of his father’s death. When asked to explain this, the applicant said that the community in Cameroon view homosexuals as something akin to a witch and they claimed that he was responsible for his father’s death. The applicant told the Tribunal that his father in fact died of a [medical condition] and his father was born in [year].
The applicant told the Tribunal that he is currently undergoing counselling with [Agency 1].
The Tribunal referred the applicant to the newspaper article which he submitted to the Department and asked the applicant to explain its source. It put to the applicant that it had grave doubts as to the authenticity of this document, as did the delegate. The applicant said he was told he needed supporting documents and he got his friend who lived near him in Cameroon, a [name], to obtain the article. He said he had to pay some money for it. He said he does not know if the report is genuine. The hearing was adjourned at this point as the applicant appeared to become emotional and appeared to be crying.
Hearing held 6 October 2016
The hearing resumed on 6 October 2016. This began with a discussion as to the Tribunal’s concerns over the genuineness of the documents which had been provided by the applicant. The applicant repeated that he was not present when [Newspaper 1] report was published and that he had done his best to get supporting documents.
The Tribunal invited the applicant to provide further comment on the evidence that he provided documents indicating he was a permanent resident of [Country 3]. The applicant repeated that he did not prepare these documents. He said he realised when he arrived at the airport in [country] that his application showed him to have permanent residence in [Country 3]. He said by that time he did not want to go back to Cameroon because of his circumstances there.
The Tribunal asked the applicant why he had not sought protection in [Country 1]. He said he did ask a protection and he tried to contact human rights organisations there, however he had no evidence of this. The Tribunal put it to the applicant that his evidence in this respect did not appear convincing and it may consider his failure to seek protection in [Country 1] undermined his claim of fear of serious harm in Cameroon. The applicant said that the circumstances in [Country 1] did not meet his preferences for protection.
The Tribunal again invited the applicant to speak about his claimed relationship with [Mr A]. The applicant talked of being in a relationship with him when he was killed and that the applicant had been also beaten, however he could not remember the day or date. The Tribunal put it to the applicant that it would expect that he would have remembered such a thing given that he claims it was a significant event in his life. He then talked about being rescued by his [siblings] from that incident and that he was taken to an abandoned house where he stayed for one day. He said he did not receive medical treatment. He said his [siblings] then came at midnight and took him to [village] where he stayed with his [relative] and was then taken to a house in the forest.
The Tribunal asked the applicant why he went to Cameroon in 2005. He said he went at that time for his father’s death. He said his extended family wanted to kill him at that time. He said they blamed him for his father’s death. He said he was in [Country 2] at the time and his family told him that his extended family were threatened because he was supposed to swear an oath on his father’s body. He said that ritual eventually did not proceed. The applicant told the Tribunal that on that occasion he remained in Cameroon for three or four weeks. He confirmed that his family had not been harmed. He said his [sibling] told him that the extended family were intending to kill him. He then went on to say that when he returned to Cameroon at the time of his father’s death, one of his [siblings] told him that there were people who intended to kill him on the day of the planned ritual. He said this [sibling], who continues to live in Cameroon, told him he should not show his face. He said he stayed in [a] Hotel in [town]. He said he would have left earlier but he had to wait for his return flight and did not have money to change his flight. He said that the hotel was not expensive. The Tribunal asked the applicant how his extended family would know that he had returned to Cameroon. He accepted it was his speculation but that he believed he was at risk at the hands of his extended family.
The Tribunal asked the applicant who he had discussed his sexuality with in Cameroon. He said he had discussed it with his teacher whose name is [name]. He said he taught him [subject] at his [school]. He said this teacher showed concern about him and that he was able to speak to him. The applicant said his teacher provided him with a letter in support of his claim. He said his friend obtained the letter from his teacher. He said he last spoke to his teacher before the incident in 2012.
The Tribunal asked the applicant whether he had spoken to anyone else about his sexuality. He said he had not. He then said he had spoken about it with his case manager and with the Tribunal, however he had not raised it at his counselling session with [Agency 1]. He said he is not comfortable talking about his sexuality with his counsellor.
The Tribunal asked the applicant whether he had accessed pornographic websites in Cameroon and the nature of those sites if he had accessed them. He told the Tribunal that access to the Internet is rare in Cameroon. He said, however, he had visited social media websites but that he had not visited any homosexual pornographic websites but he had heard of them. The applicant also told the Tribunal that he knows nothing about any homosexual support organisations but that he might be able to research them if he was released from immigration detention.
The Tribunal asked the applicant what it meant to him to have a homosexual identity. He replied that it doesn’t mean anything and makes no difference. He said there is no other dimension and the feeling is the feeling he has when he is with another man. He said there is no way he can hide himself from being homosexual in his country.
The Tribunal asked the applicant whether he had ever questioned his sexuality. He said he had never questioned his sexuality.
The Tribunal asked the applicant whether there were any other reasons why he feared returning to Cameroon. He said that as a deportee, he would be detained and asked for money before he would be released. He said that on top of that he is homosexual and he is afraid of persecution and death.
The Tribunal referred the applicant to paragraph 46 of the delegate’s decision record where the delegate had found that despite the claimed issue of arrest warrants for the applicant, he nonetheless returned to his home area in December 2013 and remained with his [sibling], and at a hotel on the same street, for a period of one month. The Tribunal invited the applicant to comment on this finding. He then told the Tribunal that he is from Anglophone Cameroon, not French Cameroon.
As far as the protection and competence of the police in Cameroon is concerned, the applicant submitted that they are not as competent as the police in Australia.
After the second hearing, the Tribunal decided to request further information on the authenticity of documents through the Department’s sources. In particular, it referred an article which the applicant submitted was published in [Newspaper 1] and which is headlined “[title]” for authentication. This article names the applicant as being in a gay marriage. It also referred for authentication a letter purportedly from [a] Clinic claiming the applicant was admitted [in] March 2005 for treatment as a result of an assault. The Tribunal also referred the death certificate for [Mr B] for authentication, and the Corrigendum letter dated [in] June 2014 from [Newspaper 1] for authentication.
After receiving advice from the Department’s sources that the Corrigendum letter and newspaper article purportedly published in [Newspaper 1] were counterfeit, and after also receiving advice from the Department that the letter from [the] Medical Centre was fraudulent and not issued by that centre, the Tribunal wrote to the applicant under s.424A of the Act and invited his comment on this information. The letter from the Tribunal explained to the applicant that this information is relevant because it may conclude the applicant has fabricated his evidence and that he is therefore not a credible or reliable witness, and that this may be the reason, or a reason, why the Tribunal would affirm the decision under review.

On 29 November 2016, the applicant provided a response to the Tribunal’s s.424A invitation. In summary, the applicant writes that following the hearing on 12 September 2016, he “contacted my home country and provided a letter from [Newspaper 1] dated [in] June 2014 to justify the error in the newspaper publishing supporting me claims (sic.)”. He writes that he is shocked and surprised by the information as he regards it is unfair and not true. He writes that his friend would not send him counterfeit documents to back his claims. In relation to the letter from [the] Clinic, the applicant again claims he is shocked with the outcome of the Tribunal’s inquiries into the authenticity of that document. The applicant claims, amongst other things, that he found it “hard to believe that, a document that was issued by [the] Clinic and collected from their office by a friend I trust….is considered to be counterfeit.”
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 – and relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference and third country protection
While noting the delegate’s discussion in the decision record about the applicant providing a number of false identity papers, including documents stating the applicant resided and worked in [Country 3] and a document stating the applicant was a [Country 3] resident, the Tribunal accepts the delegate’s ultimate identity finding, that is, that the applicant is a national of Cameroon. On the evidence before the Tribunal, it accepts the applicant does not have a present right to enter or reside, whether permanently or temporarily, in any other country. The applicant is therefore not excluded from Australia’s protection by the operation of s.36(3) of the Act.
Credibility concerns
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Foster J stated at 482 that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed at [25]:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”
The Tribunal carefully considered the applicant’s claims and his evidence in the light of the foregoing principles on the assessment of credibility in protection claims. Having done so, it concluded the applicant is not a truthful, or a reliable, or a credible witness. The applicant has provided a number of fabricated and counterfeit documents to the delegate and to the Tribunal. The counterfeit documents including a purported newspaper article, and a purported letter from newspaper relate directly to his claims of being a homosexual, and his claimed mistreatment in Cameroon for reasons of his claimed homosexuality. In addition to the provision of false documents, the Tribunal found the applicant’s oral evidence to be unconvincing where, for example, he spoke of his sexuality and of being a homosexual. The Tribunal has carefully considered the applicant’s circumstances and has also carefully considered the report the applicant has provided from [Agency 1]. These matters are discussed further in the following paragraphs.
Assessment of refugee protection claims
The core of the applicant’s claims is his assertion that he is homosexual and that he has been discovered to be so in Cameroon. The Tribunal accepts country information cited by the applicant, and also available to it from independent sources, indicates that homosexuality in Cameroon is not widely accepted and that sexual relations between persons of the same sex is in fact illegal in Cameroon (see for example USDOS 2016, Country Report on Human Rights Practices 2015: Cameroon, 13 April, Section 6). The Tribunal also accepts that there may be grounds to find that homosexuals in Cameroon comprise a particular social group and that they face a real chance of serious harm for reasons of their membership of that particular social group. The threshold issue in this case therefore is whether the applicant is homosexual.
The Tribunal considered the applicant’s evidence as to his claimed homosexuality, however, after considering all the evidence, it does not accept he is homosexual or that he was involved in a homosexual relationship with [Mr A], or with anyone else. Although the Tribunal made allowance for the fact that the applicant gave evidence from immigration detention where he has been for some time, and although it has also considered this in the light of the relevant legal principles guiding the assessment of credibility in such matters, the Tribunal found the applicant’s account of his claimed homosexuality to be generalised and lacking credibility. Having regard to his written and oral evidence, and to his provision of false and fabricated documentary evidence, the Tribunal does not accept the applicant became attracted to men from the age of 18, or that he had a homosexual relationship with [Mr A]. The Tribunal therefore does not accept the incident he claims occurred in January 2012 occurred as claimed, or that he was caught, tortured, insulted, and treated as an outcast as he has claimed.
The Tribunal found the applicant’s claim that he was always attracted to men and that he first had these feelings when he was growing up appeared to be rehearsed and does not accept this claim as truthful. Further, it does not consider his evidence that as a child with [brothers], they all used to sleep in the same room, suggests of itself, or combined with all the other evidence, that the applicant is homosexual.
The Tribunal considered the applicant’s claim at the first hearing that he has never told anyone about his sexuality in Cameroon because he was afraid. Subsequently, the applicant claimed that he had spoken about it with [a] teacher. The applicant also referred to a letter submitted to the Department and which he claims was written by that teacher, [name]. Having regard to its finding that the applicant has provided the Department and the Tribunal fraudulent documents as discussed in this decision, it places little weight on the claimed letter from the applicant’s teacher.
The Tribunal considered the applicant’s account of his claimed relationship with [Mr A]. Having regard to its adverse credibility findings in relation to the applicant, and after carefully considering his claims and description of his claimed sexuality, which the Tribunal does not find persuasive, the Tribunal does not accept he was in fact in a homosexual relationship with [Mr A], or with anyone else in Cameroon. Nor does it accept the applicant was expelled from school because the teachers would always see him together with [Mr A].
The Tribunal considered the applicant’s claim that he was attacked and beaten in January 2012 because of his claimed homosexual relationship with [Mr A]. As the Tribunal does not accept the applicant was in a homosexual relationship with [Mr A], or anyone in fact, it does not accept he was beaten or that he had to flee and hide or that he had to be helped by his [siblings] as claimed. Further, and for similar reasons, the Tribunal does not accept his claim that in 2005, while at the markets, a man wanted to touch him, or that the man told him they knew the applicant was gay, and that he was thereafter beaten. Further, having found it does not accept the applicant is homosexual, or perceived to be such, it does not accept his claim that in 2011, at a party for a [classmate], he was beaten or punched or hit with a chair as claimed.
Having regard to all the evidence, and to its finding that it does not accept he is homosexual, the Tribunal does not accepts that his family, or anyone else in Cameroon, have a view that he is homosexual or that he faces a real chance of serious harm for that reason now or in the reasonably foreseeable future if he returns to Cameroon. As it does not accept the applicant is homosexual, the Tribunal also does not accept that the authorities will target the applicant for prosecution on the basis of his sexuality, or that he will be tortured or killed by the local community. Nor does it accept that his family will be at risk of receiving threats from the authorities and the local community.
The applicant claimed that, amongst other things, news of his homosexuality has spread and that he is unable to relocate because homosexuality is unlawful in the whole country. Having found it does not accept his claim that he is homosexual, and having found, as was put to him, that the purported article was never published by [Newspaper 1], or in any other publication, that Tribunal rejects his claim that any adverse news of his sexuality has spread in Cameroon or that he faces a real chance of serious harm for such a reason.
The Tribunal considered the applicant’s claim that warrants for his arrest have been issued by the authorities in Cameroon. Having found the applicant is not a homosexual, and having found he has provided fabricated documentary evidence to the Tribunal, the Tribunal does not accept the applicant is of any adverse interest to the authorities in Cameroon or that there are warrants for his arrest in Cameroon.
The Tribunal considered the applicant’s evidence where he submitted a copy of a death certificate for a [Mr B]. The Tribunal acknowledges this death certificate was not found to be fraudulent and it is prepared to accept it evidences the death of the nominated deceased person. However, the Tribunal does not accept the applicant’s claim that he is homosexual, or that he is perceived to be homosexual by anyone in Cameroon, and because of this, the Tribunal rejects the applicant’s claim that he is perceived to be responsible, for reasons of homosexuality and this being associated with witchcraft or some other cult, for his father’s death. The Tribunal therefore does not accept the applicant’s close or extended family, or anyone else, will target him for harm for reasons of any association with his father’s death.
The Tribunal has also considered the copy of a Torture and Trauma Assessment Report submitted to the Tribunal by the applicant and prepared by the [Agency 1]. It has also considered the applicant’s evidence that he did not speak of his sexuality with the [Agency 1] counsellor. The Tribunal notes these reports refer to the applicant reporting symptoms of anxiety and depression. The Tribunal notes the report dated [in] September 2016 states the applicant reported there were no cultural or gender barriers that may have interfered with the assessment. Having considered all the evidence, and the [Agency 1] reports, the Tribunal does not finds they advance the applicant’s claims as to his sexuality, or support his claim that he fears serious harm for reasons of his sexuality, or for any other reason, if he returns to Cameroon. Further, the Tribunal considers the evidence that the applicant failed to disclose his claimed homosexuality to his counsellor in all the circumstances, further undermines his claim to be a homosexual.
The Tribunal considered the applicant’s evidence regarding his travels before arriving in Australia. It accepts his claim that he has previously been to [Country 1] and to [Country 2]. The Tribunal considered his evidence where he claimed that he asked for protection and he tried to contact human rights organisations in [Country 1]. As put to the applicant at the hearing, the Tribunal did not find his claim in this respect to be convincing and it does not accept his claim that he sought protection in [Country 1]. The Tribunal finds on the evidence before it, the applicant’s failure to have sought protection in [Country 1] or [Country 2] undermines his claim of fear of serious harm in Cameroon.
The Tribunal considered the applicant’s explanation of his acquisition of fraudulent documents indicating that he was a permanent resident of [Country 3]. The applicant told the Tribunal that he wasn’t the one who made the application for that and that he had paid a person called [Mr C] some [amount] to obtain these or a visa for Australia. The applicant told the Tribunal that he was desperate and that he tried to do the right thing. However, the Tribunal does not accept the evidence before it suggests the applicant was desperate as it does not accept his claims that he feared being harmed for any reason if he returned to Cameroon. In light of this, the Tribunal formed the view the applicant pursued the acquisition of the fraudulent [Country 3] documents for opportunistic reasons rather than for reasons of protection.
The Tribunal also considered the applicant’s evidence that he is Catholic and that his faith has become stronger while he has been in immigration detention. The applicant claimed that his family are Presbyterians but the applicant went to a Catholic primary school. On the evidence before it, the Tribunal finds there is not a real chance that he faces serious harm for reasons of his religion now or in the reasonably foreseeable future in Cameroon.
The Tribunal also considered the applicant’s evidence that he returned to Cameroon in 2005 at the time of his father’s death. While the Tribunal understands the applicant’s desire to return to his country at the time of his father’s death, it finds the fact that he remained there for three or four weeks inconsistent with the actions of a person who claims to have a genuine fear of serious harm. It does not find his explanation that he was unable to change his flight due to a lack of money to be convincing.

The Tribunal considered the applicant’s claim where he asserted that as an deportee he would be detained and asked for money before he would be released. The Tribunal accepts that upon return and entry to Cameroon the applicant may be questioned about his departure and absence from Cameroon. However, on the evidence before it, including its findings that he has fabricated his claims to fear harm for reasons of his sexuality, it does not accept the applicant will attract anything more than the usual inquiries by officials upon return and entry to Cameroon. It does not accept he will be targeted for extortion as he claims, or for any serious harm generally. Further, the Tribunal does not accept the applicant is the subject of the arrest warrants he claims exist in relation to him, and it is therefore satisfied that he will not come under any added scrutiny or arrest, or a real chance of serious harm associated with such attention, upon his return to Cameroon.
Having considered all of the applicant’s evidence and his claims individually, the Tribunal finds the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future for any of the individual reasons he has asserted. Further, upon considering all of his claims cumulatively, the Tribunal also finds he does not face a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future if he returns to Cameroon.
Given the Tribunal’s finding in the preceding paragraph, it is not necessary to consider whether he is able to avail himself of state protection in Cameroon, or whether he is able to relocate internally in Cameroon..
Assessment of complementary protection claims
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
The Tribunal considered all of the applicant’s claims and whether there is a real risk that he will face ‘significant harm’ as that term is defined in the Act. For similar reasons as set out in the foregoing discussion dealing with refugee protection, the Tribunal does not accept the applicant’s claims as to his homosexuality, or his fears of being mistreated for reason of his return to Cameroon as a deportee. Having regard to all of the evidence, the Tribunal does not accept the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of his being removed to Cameroon. The Tribunal finds that there is not a real risk the applicant will suffer significant harm for any of the reasons claimed or asserted, or for any other reason as a necessary and foreseeable consequence of his removal to Cameroon. Therefore applicant does not satisfy the criterion set out in s.36(2)(aa).
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tony Caravella
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 131

23 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction