1708801 (Refugee)

[2022] AATA 607

1708801 (Refugee) [2022] AATA 607 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708801

COUNTRY OF REFERENCE:                   Somalia and Kenya

MEMBER:Michael Hawkins AM

DATE:14 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 January 2022 at 12:03pm

CATCHWORDS

REFUGEE – protection visa – Somalia – Kenya –fear of harm from the Al-Shabaab – identity concerns – bogus document as evidence of identity, nationality or citizenship –Somali passport and birth certificate – reasonable explanation for providing the bogus document – conflicting explanations – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 91WA, 376, 438

Migration Regulations 1994, Schedule 2, cl 866.221

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

1. 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).

2. The applicant who claims to be a citizen of Somalia, applied for the visa on 18 November 2014. The delegate refused to grant the visa on 30 March 2017 on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal on 19 May 2021 and 1 December 2021 to give evidence and present arguments. The applicant was represented in relation to the review.

   RELEVANT LAW

4. 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

5. 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).

6. 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.

7. 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.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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.

    Circumstances preventing the grant of the visa

18. Under s.65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s.91WA. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a bogus document as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, that requirement will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2). Section 91WA and the definition of ‘bogus document’ are extracted in the attachment to this decision.

    Mandatory considerations

19. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

20. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A further issue in this case is whether the grant of the visa is prevented by s.91WA(1) because the applicant has not provided a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

    The delegate’s identity assessment

    Arrival in Australia

21. On [date] February 2014, a person arrived in Australia on a Kenyan passport number [deleted] in the identity of '[the applicant]', with a date of birth [Date 1]. He was immigration cleared as the holder of a [Student] visa.

    Protection visa application

22. On 18 November 2014, the applicant applied for a Protection visa in the identity of [Alias 1], a Somali national born in the year [year] in Somalia. In the Protection visa application, the applicant claims that he does not have a copy of his birth certificate or identification documents because he left them behind in his family home when he fled Somalia. He claims that he travelled to Australia on a passport that was not in his name. He claims that he no longer has the passport because it was taken away by the person who organised the passport.

23. On [date] December 2014, the applicant provided biometrics to the Department which included a digital photograph and a scan of his fingerprints. Through his biometrics, the Department was able to establish that the applicant applied for a [Student] visa on 28 January 2014 in the identity of '[the applicant]', a Kenyan national born on [Date 1] in Garissa, Kenya. The visa was granted on 10 February 2014.

24. An informal interview was conducted with the applicant when he attended the biometrics appointment. The applicant reiterated the information in his Protection visa application, and claims that:

    ·he is [Alias 1], a Somali national;

    ·his travel to Australia was organised by a smuggler, and the passport he used to enter Australia did not belong to him;

    ·he did not see the biodata page of the passport, and it was not his photo in the passport;

    ·he recalls seeing the name '[First name 1]' in the passport but this was the only detail he remembered on the passport; and

    ·the smuggler took the passport off him when he arrived in Australia.

25. Given the identity concerns, the lack of documents and contradictions in the applicant's evidence, this case was referred to the Department's National Identity Verification and Advice (“NIVA”) section for an identity investigation.

    Identity Investigation

26. On 18 May 2015, an identity interview was conducted with the applicant. On 5 June 2015, NIVA finalised its investigation of the applicant's identity. The identity officer found that [Alias 1] (DOB: [Date 2]) and [the applicant] (DOB: [Date 1]) represent the same person, and that he is a national of Kenya, and not of Somalia as claimed.

    Somali birth certificate and passport

27. Although the applicant repeatedly said that he did not have any identity documents in the name of [Alias 1], following a finding on his identity by NIVA, he subsequently provided the Department with a copy of a Somali birth certificate and passport, purportedly issued [in] 2010, in the name of '[Alias 1] '.

28. The applicant previously told the Department that he only had one Somali passport in the name of [Alias 1], which was issued to him when he was a baby. When he was questioned about the inconsistent information at his protection visa interview, he claimed that he paid money to some people to get the birth certificate and passport. The applicant did not provide further explanation when asked to clarify what the money was for. When questioned if the documents were genuine, he did not provide an answer except to say that in Somalia it is possible to get any document if you pay money.

29. According to a 2016 US Department of State report, few citizens in Somalia had the means to obtain passports. In view of widespread passport fraud, many foreign governments did not recognise Somali passport as valid travel documents.[1] Somalia Report, a "non-partisan website that hires Western editors to work with over 140 Somali journalists inside the country" reported in 2011 that it would be "difficult at best" to obtain a legitimate Somali passport because the government has been at war for over 20 years.[2]

    [1] OGD95BE926323: US Department of State, "Somalia - Country Report on Human Rights Practices 2015", 13 April 2016

    [2] OG4162Cl 530: Canadian !RB: Immigration and Refugee Board of Canada, "SOM104487.FE - Possibility for people outside the country without identity documents to establish their Somali nationality, in particular, those who have left Somalia since 1991; fraudulent identity documents (2012- July 2013)", 15 July 2013

30. Country information confirms that passport fraud is widespread in Somalia. Having considered the applicant's response that it is possible to get any document by paying money and his confirmation that he 'paid money' for the Somali documents, the delegate did not give any weight to the copy of the birth certificate and Somali passport in assessing the applicant's identity.

    Kenyan passport and birth certificate

31. The applicant claims that he is no longer in possession of the Kenyan passport which he used to enter Australia. A copy of the biodata page of the passport is available on the applicant's student visa application file. The photo in the biodata page of the said passport bears a strong resemblance to the applicant.

32. Information available to the Department indicates that the Kenyan passport and Kenyan birth certificate submitted by the applicant in his application for a [Student] visa are genuine.

    The delegate’s identity finding

33. The delegate found the applicant to be [the applicant], born [Date 1] and to be a national of Kenya on the basis of the NIVA investigation.

    Claims:

    Summarised from the applicant’s XA 866 protection visa application and written claims

34. The applicant claims to be a Somali citizen, born in [year] in Merca, Somalia. He claims to not recognise Merca in pictures anymore because it has changed a lot.

35. The applicant claims to be a Muslim and belongs to the Shanshi tribe. The applicant claims the Shanshi tribe do not like politics and are not part of Al-Shabaab.

36. The applicant claims he has never attended school as there was no school for him to attend. He claims he only went to a school that teaches the Quran. He claims he was taught English and mathematics by his father and a pastor who came to Merca.

37. The applicant claims his family lived in Merca for many generations and that he and his siblings were born there. The applicant claims to have [number of siblings]. He claims his father was a successful businessman and his mother worked from home in [Merca].

38. The applicant claims Al-Shabaab took advantage of businessmen in Somalia by getting money from them and forcing them to hide weapons in the goods that were being transported to Kenya. He claims his father refused to help Al-Shabaab in their smuggling business and did not donate money to the cause, so Al-Shabaab made threats against his family and labelled his father a 'kafir'.

39. The applicant claims that sometime in 2006, he witnessed his father being shot by Al-Shabaab and his mother being raped and killed by them. He claims a distant relative collected money from other women in the town and arranged for him and his siblings to be smuggled across the border to Kenya. He claims to have stayed in [a] refugee camp for two to three months.

40. The applicant claims a lady in the camp told him that he had family in Kenya. He claims she contacted his aunt, [Ms A]. He claims [Ms A] took him and his siblings to her home.

41. The applicant claims his aunt's husband had business connections with Al-Shabaab. He claims a man from Al­ Shabaab found out they were living with his aunt. He claims they told his aunt that she should not help them.

42. The applicant claims that shortly afterwards, a man tried to kidnap him. He claims that in 2010, his brother was given a poisoned sweet. He claims that in 2012, he escaped an attempted killing. He claims that in 2013, he was kicked from behind and his arm was stabbed with a knife.

43. The applicant claims he tried to restart his life in Kenya, but the problems followed him. He claims his aunt called in his father's debts and contacted a man to get a passport and student visa for him to leave Kenya. He claims the passport was not in his name and that he does not remember the details of the passport apart from [First name 1].

44. The applicant was interviewed via telephone about his student visa application from a lady in Pretoria, South Africa. The interview went for approximately thirty minutes. The applicant sat an IELTS test in Nairobi and he received certificate from this, but he claims it was kept by the man who organised his passport. The applicant claims to have called him '[Mr B],' but does not know if this is his real name.

45. On [date] February 2014, the applicant left for Australia by plane and he claims [Mr B] travelled with him on the flight. The applicant claims that when they arrived at Melbourne airport, [Mr B] handed him the false passport. The applicant claims he no longer has the passport as [Mr B] took the passport from him. He claims to have lived with [Mr B] for about five months, then [Mr B] left him at a mosque in [Suburb 1] and told him to seek help from the Somali people.

46. The applicant claims he has family in Somalia who had sworn allegiance to Al-Shabaab. He claims it is not possible for him to return to Somalia. The applicant claims that if he returns to Somalia, he will be beheaded by the AI-Shabaab. He claims he cannot relocate anywhere in Somalia as the Al­ Shabaab would find him and kill him.

47. The applicant claims he did not apply for protection earlier because he was afraid that he would be put in a detention centre.

    Summarised from the protection interview with the delegate

1. The applicant claims he studied primary school in Kenya. He claims that while in Kenya, he had always used the identity [the applicant]. He claims that when he was in about Grade [number] or Grade [number] of primary school, he needed a birth certificate to sit an exam. He claims his father gave him a Kenyan birth certificate in order for him to sit the exam. He claims he is not sure where his father got the birth certificate or whether the birth certificate was genuine.

2. The applicant claims he has a brother in Australia from the same mother and father named [Mr C]. He claims [Mr C] is also known as [Alias 2]. He claims that although he has a very good relationship with his brother and speaks to him regularly, he does not know the immigration status of his brother because they do not talk about this issue.

3. In his student visa application, the applicant declared his father as [Mr D]. [Mr D] is in fact his uncle and not his father. The applicant claims he has a very good relationship with [Mr D] who has continued to support him after he came to Australia.

4. The applicant claims he worked for his cousin as [an Occupation 1] in Kenya from 2009 to 2013.

5. The applicant claims he decided to apply for an Australia visa in around November 2013. He claims he sold his mother's jewellery and paid USD$5,000 to a person who assisted him with the passport. He applied for the student visa and was interviewed by the Department. He claims that since arriving in Australia, he has misplaced his Kenyan passport. The delegate noted this was contrary to his initial claim that the passport was not handed back to the 'smuggler'.

6. The applicant claims his [siblings] are currently living in Kenya with his aunt. He claims Al-Shabaab killed 146 Christians in Kenya not too long ago and the attack occurred very near to his home in Kenya. He claims that while he is able to live in Kenya, it is not safe for him. He claims the Kenyan government is corrupt.

   Inconsistent information about family composition

7. In his student visa application lodged on 28 January 2014, the applicant stated that his father is [Mr D]. He also declared that he has [siblings] in Kenya and another brother [Alias 2] who was living in Australia.

8. In his protection visa application lodged on 18 November 2014, the applicant claims that his parents were killed by Al-Shabaab in 2006 in Somalia. Although he declared that he has [siblings] in Kenya, the delegate noted he had made no mention of his brother [Alias 2] who was living in Australia.

9. In his identity interview on 18 May 2015, the applicant claims that he does not know [Mr D] or [Alias 2].

10. In his protection visa interview on 1 March 2017, the applicant claims that [Mr D] is his uncle. When questioned further, he claims that he has a very good relationship with [Mr D] who is like a family to him and who has been providing him with support. When the applicant was asked about his siblings, he provided the details of his [siblings] in Kenya. When specifically questioned if he has a brother living in Australia, the applicant claims that his brother [Mr C] is living in Australia. The applicant claims that he and [Mr C] have the same biological parents. When questioned further, he claimed that [Mr C] is the same person as [Alias 2]. The delegate questioned why the applicant did not provide details of his brother in Australia in his protection visa application. In reply, the applicant claims that the reason is 'private' and he did not provide any further information or explanation as to why he provided inconsistent information to the Department about his family composition.

    Inconsistent information about education

11. At his protection visa interview, the applicant was questioned about his education. He claimed that he attended primary school in Kenya and completed Grade [number] or Grade [number]. When questioned further, the applicant claimed that he failed his secondary education but was able to complete a [qualification] as a private candidate in Kenya. The delegate noted that this is inconsistent with the applicant's written statement where he claims that he never attended school because there was no school for him to attend. When questioned about the inconsistent information, the applicant did not provide an explanation of why incorrect information was provided in his written claims.

    Escape from Somalia to Kenya

12. In his written claims, the applicant claimed that he escaped from Somalia to Kenya with his [siblings] after witnessing the murder of his parents in 2006. He claims that they stayed in [a] Refugee Camp in Kenya for about three months before a lady told them they had family in Kenya and called his aunt [Ms A] who came and took them home.

13. At his protection visa interview, the applicant claimed that his brother [Alias 2] was living with his 'uncle' [Mr D] in Kenya around the time he was at [the] Refugee Camp. When questioned why he decided to stay in a refugee camp instead of contacting his family in Kenya, the applicant claimed that he could not leave the refugee camp, because there were checkpoints everywhere.

14. The applicant provided a signed consent to the Department to conduct checks with the United Nations High Commissioner for Refugees (UNHCR) in Kenya. On 29 May 2015, the Department received a response from UNHCR that their colleagues in Kenya and Dadaab could] not locate the applicant in their database. When the applicant was provided with an opportunity to comment on this information, he claimed that he is not sure why UNHCR was unable to locate his details.

    Protection claims against Kenya

15. Given that the applicant was found to be a national of Kenya, and not a national of Somalia as claimed, he was questioned at interview about his protection claims against Kenya. The applicant claimed that while he is able to return to Kenya, it is not safe for him to do so because AI-Shabaab recently killed more than 100 Christians. Country information indicates that on 2 April 2015, gunmen from the Somali Islamic group AI-Shabaab stormed Garissa University in Kenya, singled out Christian students and killed them. A total of 147 people were killed in the attack.[3]

    [3] CISEC96CFJ 1 2 13: Gatestone Institute, ""Islamic! Islamic!" Muslim Persecutions of Christians, April, 2015", 20 June 2015

16. As the applicant identifies as a Muslim, the delegate questioned how the killings of Christians relate to his own protection claims. In response, the applicant claimed that the incident occurred in Garissa University which is very close to his place of residence.

    Summarised from the applicant’s statement of claim dated 17 December 2014

    Identity

17. The applicant claims to be a Somali citizen born in [year] in Merca, Somalia.

18. The applicant claims to be a Muslim and belongs to the Shanshi tribe, who are not part of the Al-Shabaab.

19. The applicant claims he left his birth certificate and identification documents behind in his family home when he fled Somalia. He claims he could not return to retrieve these documents because members of the Al-Shabaab were looking for him.

20. The applicant claims he never attended school because there was no school for him to attend. He claims he only went to [School 1], a school which teaches the Quran, everyday except Fridays.

21. The applicant claims he has looked at pictures of Merca and he does not recognise it anymore because it has changed a lot.

    Family

22. The applicant claims his family lived in [Merca] for many generations. He claims he and his siblings were all born there.

23. The applicant claims his father was [name deleted] and his mother was [name deleted]. He claims to have [number of siblings].

24. The applicant claims his father had a [business] and then [another] business. [Details of the business deleted]. He claims his father was a successful businessman. He claims his father’s business did not have an official name, but he recalls the words ‘[deleted]’, which means ‘[deleted]’ on the side of the [business vehicle].

    Claims against Somalia

25. The applicant claims there have been attempts on his life since the murder of his father and the rape and murder of his mother in Somalia. He claims he came to Australia because he could not be safe from the Al Shabaab and their supporters in Somalia and Kenya.

26. The applicant claims the Al-Shabaab were everywhere in Somalia. He claims the Al-Shabaab wanted to penetrate Kenya via Somalia and purchase more weapons. He claims the Al-Shabaab took advantage of his father and other businessmen in the area by trying to get money from them and trying to force his father and other businessmen to hide weapons in the goods that were being transported to Kenya. He claims that if his father and the other businessmen refused to cooperate, Al-Shabaab would be harassed and sometimes killed.

27. The applicant claims that he recalls when he was about [age] years old, his father had a disagreement with members of the Al-Shabaab, because he refused to give them any money. He claims other families gave the Al-Shabaab money, because they were afraid to be killed. He claims to recall his mother begging his father to give the Al-Shabaab money, so they will leave us alone.

28. The applicant claims his father was not part of any political group against the AI-Shabaab, but he but did not want to give them money, because he knew it would not fix the problem, as the AI-Shabaab will just come back the next day and ask for more money. The applicant claims to recall that his father was always very stressed when he came home and was very worried all the time.

29. The applicant claims AI-Shabaab asked his father to smuggle their weapons inside the [products] that his father transported to Kenya from Somalia. He claims his father refused to let the AI-Shabaab use his business to smuggle their weapons. He claims his father also did not want to be the reason why other people got hurt.

30. The applicant claims that after his father refused to help the AI-Shabaab in their smuggling business and did not donate money to the cause, the AI-Shabaab did not want him to continue his [business].

31. The applicant claims AI-Shabaab made threats to his family while we were in the house and his father used to walk around with a big torch at night because he was scared they would burn the house down while we were all sleeping. He claims to recall Al-Shabaab beat up one of his father's employees, the one that rides on the roof of the truck with the back of a gun. He claims his father had to take him to the hospital.

32. The applicant claims AI-Shabaab labelled his father a "kafir" for not supporting them and the lslamist movement, because he refused to assist them with transporting weapons and other illegal items across the Kenyan and Somali border or to give them money.

33. The applicant claims that in mid to late 2006 when he was [age] years old, his mother came home and told him that the Al-Shabaab had shot a girl on the street and she was scared and paranoid they may have come for us.

34. The applicant claims that his mother gave me [his sister, Ms E] and told me to go to [Ms F]’s house, which was a short walk from our compound. He claims [Ms F] was a member of his clan, a distant relative and her husband his brother had previously worked for his father.

35. The applicant claims his mother told him she would meet him at [Ms F]’s house as soon as she found his father and then she went looking for him. He claims he saw his father on his way to [Ms F]’s house and he asked him where his mother had gone. He claims his father told him to go with [Ms E] and he ran off to look for his mother.

36. The applicant claims he reached [Ms F]’s house safely with [Ms E] and then he left [Ms E] with [Ms F]. He claims he decided to leave and look for his parents who had not yet reached [Ms F]’s house.

37. The applicant claims that when he got back near to their compound, there were many neighbours hiding behind the fences of our compound. He claims he hid with them and his neighbours said that someone was being beaten in front of our compound and someone else said that it may be his father.

38. The applicant claims that from his hiding place, he could see about ten men. He claims to have recognised these men as AI-Shabaab because they were dressed in the familiar clothing of AI-Shabaab members of face coverings to hide their faces so only their eyes were showing and wearing military uniform. He claims the men were shouting "Allah u Akbar”.

39. The applicant claims to have recognised one of the men as [Mr G] from a mark near his [body part], which he could see because he did not cover his face fully. He claims he has also known him for many years and he recognises his voice.

40. The applicant claims he witnessed his mother run towards the group of men who were beating the man. He claims she was crying and begging them for mercy. He claims one of the men approached her and slapped her face while another man tripped her and then held her by her ponytail. He claims the first man then pointed his gun at her, cocked the gun, while his mother begged them and said, "please don't kill us".

41. The applicant claims that at this time, the group of Al-Shabaab men beating the man moved aside and he could see that the man they were hitting was his father. He claims he then witnessed [Mr G] shoot his father twice; once in the [body part] and then again in [another body part]. He claims his father was bleeding but not dead.

42. The applicant claims that when the AI-Shabaab shot his father, his mother was wailing and crying. He claims the two men who were with his mother dragged her towards his father by her arms and his father begged them not to kill him and told them to take whatever they wanted and that he had children. He claims the AI­ Shabaab shot at his father again and he stopped moving.

43. The applicant claims [Mr G] told the men to bring his mother with them. He claims [Mr G] said she was "filth" and called her a whore for running towards a group of men and behaving in a way that was not modest. He claims the group dragged his mother away and threw her in the back of one of the [cars] that were parked in front of his compound.

44. The applicant claims he heard [Mr G]'s brother ask about "the children". He claims [Mr G]'s son said they would come back later to kill them. He claims he recognised [Mr G]’s brother and son because their family is well known in Merca and he recognised their voices.

45. The applicant claims he ran towards his father to try and help as the men drove off with his mother. He claims his father had already started saying the Shihada and then he died.

46. The applicant claims he was feeling very bad and he decided to follow the cars to get to his mother. He claims he followed the tyre tracks on the road, which he could clearly see in the dirt, as the road was not tarmac. He claims he followed the tyre tracks to the compound of [Mr G] and he knew it was his compound because everyone knew it was AI-Shabaab territory. He claims people who drove passed that area had to pay the AI-Shabaab to pass.

47. The applicant claims he ran around the [trees] trying to get to the compound. He claims he was able to see his mother through the fence because the fence was made of many sticks tied together and there were gaps in the fence that he could see through.

48. The applicant claims he saw his mother, who was tied to the front of one of the lorries. He claims he saw the same man who had slapped his mother walk over to her. He claims he ripped her clothing from her and she started pushing him. He claims the man's son came over to his mother and started beating her. He claims he knew he was the man's son because he had played with him when they were younger.

49. The applicant claims his mother was trying to kick the men. He claims the son was trying to force her legs apart and then more men came over. He claims two men held her hands down and two men held her legs down. He claims his mother kept trying to close her knees and one of them held a gun at her head while someone else started ripping her clothes.

50. The applicant claims the men then started to take turns raping her. He claims he does not know how many men raped her, but he thinks it was at least two of them. He claims his mother was cursing at them and crying and then she started to bang her head on the car many times.  He claims [Mr G]'s son walked over and started shooting her. He claims he cannot remember anything else, as he passed out when he heard the shots.

51. The applicant claims that when he woke up, he was at [Ms F]' s house. He claims he was told that her husband and her brother-in-law had found him and took him to her house. He claims [his brother, Mr H], [Ms E] and [his sister, Ms I] were also there. He claims to believe his father had telephoned someone when trouble started and asked the person to get [Mr H] and [Ms I] from the [School 1]. He claimed they stayed at [Ms F]'s house for three days.

52. The applicant claims he does not believe that he can move to another part of Somalia as the AI-Shabaab would still find him and try to harm or kill him.

100.   The applicant claims that AI-Shabaab claim that the killing of his parents was lawful under Sharia law, because his parents did not support the AI-Shabaab and the lslamist movement, and that their killings are what Allah likes.

101.   The applicant claims the AI-Shabaab has labelled him a "kafir" or false Muslim, because he does not support them. He claims they also say that if someone kills him, the person shall rejoice in Paradise.

102.   The applicant claims his family in Somalia have sworn allegiance to AI-Shabaab so that they could keep living their lives and running their businesses without fear of harassment or threats. He claims it is not possible for him to return to Somalia and be cared for by the rest of the family.

103.   The applicant claims that if he returns to Somalia, he fears that he will be beheaded by the AI-Shabaab, as this is what they do to the people and their families who oppose the AI-Shabaab.

104.   The applicant claims he does not know of people being helped by the police before and [Mr G] has connections with many people in powerful positions. He claims that if he went to the authorities, he would be the one to lose and [Mr G] would always win.

105.   The applicant never called the authorities about what happened to his parents, as there is no real authority and everyone was part of a group or a militia. He claims there is no real police or anyone to protect him and his siblings.

106.   The applicant claims he do not think the authorities are able to protect him from the AI-Sha baab because the AI­ Shabaab has a lot of power in Somalia and also because they can bribe people. He claims the whole system works for AI-Shabaab.

107.   The applicant claims AI-Shabaab has business relationships with members of the Somali parliament and he is afraid that these members of parliament are corrupt and that the government will not protect him.

108.   The applicant claims no steps were taken by the authorities to investigate the murder of his parents and the rape of his mother. He claims that to the best of his knowledge, no one has been arrested or charged for doing this.

Fleeing from Somalia to Kenya

109.   The applicant claims [Ms F] and her husband were scared for their own children because the AI-Shabaab were driving around in the lorries looking for us. He claims they were putting [Ms F]’s family at risk, so we could not stay at her home permanently. He claims [Ms F] started looking for a way for him and his siblings to reach the refugee camp in Kenya safely.

110.   The applicant claims it was not safe to go somewhere else in Somalia, because the AI-Shabaab was everywhere.

111.   The applicant claims [Ms F] collected money from other women in the town to help us and she used the money to arrange for someone to smuggle him and his siblings across the Somalian border to Kenya.

112.   The applicant claims that as we were leaving [Ms F]'s house, [Ms F] dressed him and his siblings as girls. He claims she carried [Ms E] on her back and he held the hands of [Mr H] and [Ms I].

113.   The applicant claims they walked like this for a long time to a part of Merca he had never seen before. He claims it was quite a long way and it was very tiring. He claims they walked for most of the morning until they reached a big lorry and he saw two men sitting close to the lorry drinking tea.

114.   The applicant claims they hid in between sacks of [products]. He claims the man told us that when we reach Kenya we should not make any sounds. He claims they were in the lorry for three or four days.

115.   The applicant claims they did not have any documents with them when they travelled, as we were running for our lives and did not think about getting documents.

116.   The applicant claims they arrived at [the] Refugee Camp. He claims that after they had lived in the refugee camp for two to three months, the lady they stayed with told them we had family in Kenya. He claims she said that because it is bad for children to be in the refugee camp, we should go to our family. He claims the lady contacted his aunt, [Ms A], who was actually his mother's [relative], to come and get them. He claims [Ms A] took him and his siblings to her home.

Claims against Kenya

117.   The applicant claims life in Kenya was very difficult as people who knew his family constantly mocked them for being the children of a mother who was raped and killed and a father who was shot.

118.   The applicant claims that about after one month at his aunt’s home in Kenya, he developed [a medical condition] and became sick. He claims he had [symptoms]. He claims he also had nightmares and would wake up with panic attacks.

119.   The applicant claims his aunt's husband was an lslamist and had many business connections with the AI-Shabaab. He claims that as he had business connections, a man from the AI­ Shabaab found out we were living with his aunt as he had seen me and my siblings in their compound. He claims this man came to his aunt and told her that she should not give them any help and not to interfere with them. He claims he told her that they would grow up in hatred and they would not be good Muslims.

120.   The applicant claims that shortly afterwards, a man tried to kidnap him while he was standing by the gate of his aunt's house. He claims he knew the kidnapper was AI-Shabaab because his face was covered in the way that all AI-Shabaab members cover their faces. He claims that when the man tried to grab him, a neighbour saw what was happening and started making a lot of noise. He claims the man's body was covered in oil to help him escape if someone tried to grab him, so he was able to slip away because of the oil.

121.   The applicant claims that in 2010, his brother, [Mr H] was given a poisoned sweet outside of his aunt’s house and he began foaming at the mouth. He claims his aunt took him to the hospital and the doctors said that he had been fed rat poison. He claims they believed the person who tried to poison [Mr H] was from AI-Shabaab, because his family do not have any other enemies and they were new to Kenya and did not know many people.

122.   The applicant claims that in 2012, he was standing in [a location] talking on the telephone to his aunt's husband when a beggar approached him and asked him for money. He claims that he suddenly heard someone yell "Allah u Akbar" and shots were fired and the beggar got shot. He claims he saw the man that was shooting and knew he was AI-Shabaab because [of physical feature] and he recognised him as one of the men who were present when his mother was killed.

123.   The applicant claims that in 2013, he lived in [Nairobi]. He claimed that as he was opening the door to his home at about [time], someone kicked him from behind and he fell down to the floor. He claims that as he stood up, the person pulled out a knife and he put his right arm up to protect himself and the person stabbed his [body part]. He claims he knew he was Al-Shabaab because the man's face was covered. He claims to have a scar from when he was stabbed on his [body part].

124.   The applicant claims that while he was living in Kenya with his siblings, he organised a passport to Somalia through a money exchange man in Kenya. He claims he flew from Nairobi to Mogadishu to see his father's [stepbrother], who lives in Mogadishu. He claims he wanted to get some money from him so that he could start a business in Kenya to help his family.

125.   The applicant claims that while he was speaking to his uncle about money to start a business, his [cousin] and a group of three other men started beating him and called him 'kafir'. He claims they told him, “don't think that Kenya is a safe place” and said bad things about his mother.

126.   The applicant claims that after he was beaten, his younger cousin, [Mr J] came and took him to a hospital. He claims that on the way to the hospital there was an explosion and he had left his passport behind. He claims that at the hospital they told him that his hip bone was broken and to get it fixed in Kenya.

127.   The applicant claims he had to use his cousin, [Mr J]'s passport to fly from Mogadishu back to Nairobi. He claims he went to a hospital in Nairobi to have his leg treated and his leg was put in a white plaster cast and he was on crutches.

128.   The applicant claims that the AI-Shabaab being able to find him when he had moved to Kenya makes him fear that no matter where he moves in Somalia, they will find and kill him.

129.   The applicant claimed he tried to escape the problems in Somalia by trying to restart his life in Kenya, but the problems followed him and his siblings in Kenya.

130.   The applicant claims that AI-Shabaab has a growing presence in Kenya and there were attacks against him when he lived there.

131.   The applicant claims his aunt [Ms A] called in his father's debts and contacted a man to get a passport and a student visa for him so that I can leave Kenya. He claims the passport was not in his name and he does not remember the details of the passport apart from one of the names, '[First name 1]'.

132.   The applicant claims that [in] February 2014, he left to Australia by plane. He claims the man who organised his passport travelled with him on the flight. He claims he called him '[Mr B]', but he does not know if this is his real name, as they did not talk a lot during the trip.

133.   The applicant claims that the man handed him the false passport at the Melbourne airport. He claims they did not fill any paperwork to go through customs but he thinks they looked at the passport he had and filled in the details for him.

134.   The applicant claims a lady took him into a room at customs at the airport in Melbourne and his photograph and fingerprints were taken. He claims he was cleared through customs and met [Mr B] outside in front of the airport.

135.   The applicant claims he no longer has the passport as [Mr B] took the passport back from him.

Delay in making protection visa application

136.   The applicant claims he did not apply for a protection visa as soon as he arrived in Australia because he was afraid that he would be arrested and put in a detention centre.

137.   The applicant claims he was scared of what would happen to [Ms I], [Mr H] and [Ms E] if he was put into detention.

Summarised from the applicant’s statement of claim dated 12 May 2021

Identity

138.   The applicant claims to be a citizen of Somalia and that he has no legal right to live in any other country. He claims he was born in Merca, Somalia, his religion is Muslim and that he is a member of the Shaanshi Tribe.

139.   The applicant claims his parents were horrifically killed in Somalia.

140.   The applicant claims that it is difficult to obtain identity documents due to the situation in Somalia, however given his tribe and the fact that he can speak Somalian, he is easily identifiable as Somalian. He claims that when he lived in Kenya, the wider community were aware that he is Somalian. He claims that in Australia, people from Africa automatically identify him as Somalian. He claims that in Kenya and Somalia, the wider community is very interested in which tribe you belong to and that lineage and tribal connection are more important than documents when identifying people in my culture.

141.   The applicant claims that identity documents are not commonly used due to the conflict and there are no formal record keeping systems. He claims he did however obtain a passport in around 2010. He claims that in order to obtain this, he also needed to obtain a birth certificate. He claims he paid a man to obtain a passport and birth certificate for him thinking that the man would apply to the Somalian authorities, however he claims to not be sure that he did. The applicant claims he had another Somali passport issued to him when he was a child, however he is no longer in possession of this document.

142.   The applicant claims that while living in Kenya, his uncle obtained a birth certificate for him and paid money to obtain this certificate. He claims his uncle’s name was listed as his father’s name. He claims his uncle is also Somalian, however he paid money to obtain identity documents in Kenya, because he feared for his life in Somalia.

143.   The applicant claims he does not feel safe in Kenya given the issues he faced there. He claims his aunt [Ms A] contacted a man who obtained a passport and visa for him and he was required to provide his photograph and fingerprints. He claims the passport was issued after bribes were paid to the officials at the Kenyan passport office. The applicant claims that given he is not Kenyan, he is not entitled to obtain a Kenyan passport. He claims that if he was forced to return to Kenya, the authorities would realise he obtained the passport from the authorities despite not being a Kenyan citizen. He claims to fear being punished for this.

Family

144.   The applicant claims his parents had [number of children], including himself. He claims his brother, [Mr C] resides in Australia and his brother, [Mr H] and two sisters, [Ms E] and [Ms I] reside in Kenya. He claims his father was married prior to his marriage with his mother and had [children] from that earlier marriage. He claims to have never had a relationship with his half siblings, as they were mean to him, his mother and his siblings. He claims he did not previously provide their details as they were not close. He claims his [half-brother] was killed in Mogadishu in January 2021 and his uncle informed him that he was shot dead. He claims to be unaware of the whereabouts of his [half-sisters].

145.   The applicant claims his brother, [Mr C] is also known as [Alias 2]. He claims [Mr C] requested that he did not disclose that we are brothers as he was worried this would cause issues for him in Australia. He claims [Mr C] has two young children who are Australian citizens. He claims that given [Mr C]’s request and his unfamiliarity with the immigration process, he did not disclose [Mr C]’s details in his application for protection. He claims he later understood the importance of providing correct information and therefore disclosed [Mr C]’s details to the Department. He claims he did not mean to mislead the Department; he was trying to not upset his brother and his family.

Education

146.   The applicant claims he never attended school in Somalia except for [School 1], a school that teaches the Quran. He claims that due to the conflict, there was no school for him to attend in Somalia and therefore he was unable to study there. In Kenya, given his uncle obtained a birth certificate for him, he attended primary school, however did not continue his schooling as he returned to Somalia to be with his family.

147.   The applicant claims he completed a Diploma later when he was back in Kenya. He claims his aunt encouraged him to study as she thought it may assist his wellbeing, given he had poor mental health after witnessing the death of his parents. He claims he attended private schooling through [a charitable organisation] to complete the [qualification] and he considered this schooling to be informal.

148.   The applicant claims that when he prepared his protection visa application, he explained that he could not attend school in Somalia and the person who assisted him must have thought he meant he also could not attend school in Kenya.

Refugee camp

149.   The applicant claims that after fleeing Somalia, he and his younger siblings stayed in [the] Refugee Camp. He claims conditions were extremely poor, and they were not provided with basic services. He claims that he was sexually assaulted while in the camp and that he finds this very difficult to speak about as it was very traumatic. He claims he was very scared in the camp. He claims that given the chaos, it is likely there was not good records kept and as he and his siblings were still young, UNHCR may not have kept their records.

150.   The applicant claims that when the primary decision maker stated it seemed unusual that he did not contact his uncle while he was in the refugee camp, she does not seem to understand that he was in a very bad way at the time. He claims he had just witnessed his father being murdered and his mother being raped and murdered. He claims he was only young and struggling to cope. He claims he was also mistreated while in the camp. He claimed he was trying to protect his younger siblings but could not even think straight. He claims there was very limited access to phones in the camp and he was unsure how to contact his uncle. He claimed there were checkpoints near the camp and he was scared that if they tried to escape, they would face issues from the Kenyan authorities.

Claims against Kenya

151.   The applicant claims that his life in Kenya was very difficult. He claims his aunt's husband was an Islamist and had business connections with Al Shabaab and that through this connection, Al Shabaab became aware that he was in Kenya. He claims that due to this, he and his siblings faced ongoing issues. He reiterated that the incidents described in paragraphs 85-90 of his statement of claim dated 17 December 2014 occurred.

152.   The applicant claims that given the issues he faced, he did not feel safe in Kenya and felt compelled to flee. He claims his aunt realised he was crippled by fear and assisted him in deciding to depart Kenya. He claimed they used an agent to assist with this process. He claims he was very fearful to remain in Kenya, therefore he was willing to trust the agent to assist him. He claims he has never recovered from the brutal death of my parents and wanted to flee to safety.

153.   The applicant claims that if he was forced to return to Kenya, he is fearful he would be seriously harmed or killed. He claims to also fear being tortured and severely physically harmed.

154.   The applicant claims Al Shabab has an ongoing presence in Kenya, therefore they can locate and harm me there. He claims he fled to Kenya in the hope the situation there would be better, however it was not. He claims that as he is not supportive of the ideology of Al Shabab, they will harm him in Kenya. He claims Al Shabab are easily able to cross from Somalia to Kenya and that they also have a presence in Kenya.

155.   The applicant claims he would further be at risk from Al Shabab in Kenya due to his time abroad in a Western country, as Al Shabab are opposed to Western ideology.

156.   The applicant claims that Kenyan authorities treat Somalians with suspicion given the ongoing presence of Al Shabab in Somalia and Kenya and the conflict. He claims he was born and raised in Somalia, so he will be treated with suspicion.

157.   The applicant claims he is fearful the Kenyan authorities would harm him given he paid money to obtain identity documents that he was not entitled to. He claims the Kenyan authorities are known to act lawlessly and torture and seriously harm people, as they know they will not be held accountable for their actions.

158.   The applicant claims Al Shabab has a presence throughout Kenya and there is no where he could live away from them. He claims that if he was forced to return to Kenya, he fears he would face issues at the airport, given he obtained his Kenyan documents through the payment of money and not because he was entitled to them. He further claims the Kenyan authorities would treat him with suspicion and harass him no matter where he resided in Kenya, given his Somali background.

159.   The applicant claims to be fearful the authorities in Kenya would harm him rather than protect him. He claims the Kenyan authorities often misuse their power and commit human rights abuses. He claims they control the entire country and would be able to harm him no matter where he lived. He claims Al Shabab would be able to harm him no matter where he resided as they have a presence throughout the country.

Claims against Somalia

160.   The applicant claims that if he is returned to Somalia, he fears he will be killed or subjected to torture and physical and mental suffering.

161.   The applicant claims to fear harm in Somalia due to his tribal affiliation and the fact that he is not supportive of Al Shabab. He claims his tribe is known to be opposed to the ideology of Al Shabab and therefore given his tribal affiliation, it is assumed by Al Shabab that he does not support them. He claims that given his area of origin, he can easily be identified as a member of the Shaanshi tribe. He claims that as his father refused to support Al Shabab, he is considered to be against them as well. He claims to fear serious harm by Al Shabab. He claims to have witnessed the brutal death of his parents and this incident makes it very evident to him that Al Shabab brutally punish anyone who is not supportive of them.

162.   The applicant claims that the fact he has now lived for a long time in Australia places him at risk of being harmed by Al Shabab upon return to Somalia. He claims Al Shabab accused his family of being "kaffir" in the past and Al Shabab are opposed to Western ideology. He claims that as he has lived in the West, this would further result in Al Shabab believing he is against their ideology and a convert to Christianity, all of which would give them more reason to consider me Kaffir. He claims that as the Kenyan authorities have been involved in the conflict in Somalia, Al Shabab are suspicious of anyone who has lived in Kenya. He claims Al Shabab are aware I lived in Kenya and therefore they will further treat me with suspicion and seek to harm me if I am returned to Somalia.

163.   The applicant claims Al Shabab has a presence throughout Somalia and there is nowhere safe he can live. He claims that in Somalia, he is required to live where people from your tribe live. He claims he cannot return to Merca as he would be at risk from Al Shabab who know my father did not support their ideology. He claims the wider community judge his family given what happened to his mother. He claims that culturally, when a woman is raped, it is considered that she may have welcomed the attention from males. He claims that if he was to live away from his tribe, he would be viewed as an imposter in the area and be at risk of inter-tribal violence.

164.   The applicant claims that in Somalia, there are no functioning authorities to provide protection. He claims the authorities are corrupt and unable to protect individuals. He claims they are unable to stop Al Shabab from committing attacks as Al Shabab are much more powerful than them. He claims state authorities regularly misuse their power to harm innocent people or anyone who they are suspicious of. He claims there is no where he would be protected by the authorities.

Health

165.   The applicant claims to suffer from [a medical condition], which is a serious [condition]. He claims this makes it difficult for him to work and he is very self-conscious about the severity of his [condition]. He claims to have sought medical assistance in Australia, however it has not assisted much.

166.   The applicant claims he continues to have nightmares and panic attacks. He claims to have attended a psychologist in Melbourne in approximately 2018, however speaking about his past experiences stressed him out even more, so he stopped attending.

Post-hearing submissions dated 17 December 2021

167.   The applicant’s representative submitted post-hearing submissions dated 17 December 2021 to the Tribunal.

168.   The representative submits the applicant obtained his Somali passport from the Somali Embassy in Kenya after presenting his Somali birth certificate to the embassy. She submits the fact he applied for and obtained the passport from an Embassy of Somalia through a formal application process led him to believe it was a genuinely issued document. She submits this is a logical conclusion for the applicant to reach.

169.   The representative submits that if the applicant believed the passport was a bogus document, it is unlikely he would have presented it to the Department as evidence of his identity. She submits the fact that he consented to the passport being sent for verification by the Department is further evidence that the applicant believed it was a genuine document.

170.   The representative reiterated the applicant’s explanation made in his hearing that other Somalis were being deported to Somalia after presenting their Somali passports at the Kenyan airport. She submits she is instructed by the applicant that this was occurring due to the attitude of the Kenyan authorities towards Somali nationals, and not due to concerns about the genuineness of the Somali passports.

171.   The representative referred to a report published by Human Rights Watch in May 2014 which reports that Kenyan authorities were undertaking mass deportations of Somalis. On the basis of country information, the representative submitted that it is plausible the applicant was fearful that he would be deported to Somalia if he presented his Somali passport to the Kenyan authorities. She submits the applicant was not concerned about the genuineness of the passport.

172.   The representative submits the fact the applicant believed the Somali passport to be a genuine document constitutes a reasonable explanation for the provision of a bogus document pursuant to s.91WA(2)(a) of the Act.

173.   The representative referred to the statement provided by witness, [Mr K] dated 22 May 2021, who attested to the fact he first met the applicant in [the] Refugee Camp and that the applicant is currently and has been historically known as [Alias 1]. She states that [Mr K] also attests to the fact the applicant is Somalian based on the applicant’s background, language and appearance. She submits that it should be found that the applicant has taken reasonable steps to provide evidence of his identity and [Mr K’s] statement should be given significant weight in the assessment.

174.   The representative submitted that weight must be given to the difficulty faced by Somali citizens to obtain identity documents while in Australia. She submits that according to DFAT, Somalia has only one Consulate in Australia, which is in Melbourne. She submits that based on attempts made by her and the applicant, it appears the Somali Consulate in Melbourne is uncontactable – their phones are never answered and the website has been under construction for a prolonged period. She submits that therefore, the applicant is unable to contact the Consulate to request further evidence of his identity.

Evidence:

175.   The Tribunal has before it a range of material, including, relevantly:

(a)The applicant’s protection visa application forms completed and lodged on 18 November 2014 (visa application);

(b)The applicant’s identity documents being a copy of his Kenyan passports, Kenyan birth certificate, Somalian passport, Somalian birth certificate, education records from Kenya and Australia, and [a] visa card.

(c)The protection visa decision record dated 30 March 2017 (delegate’s decision record);

(d)The review application form, which did include a copy of the delegate’s decision record;

(e)All documents submitted to the Department in support of the applicant’s protection visa application, including a sponsorship consent form, passport, education and employment records, personal identification number certificate issued by the Kenya Revenue Authority, and affidavit of [Mr D] sworn on 6 April 2002; medical report dated 21 January 2015; photographs of the applicant’s injuries and a statutory declaration of the applicant sworn on 17 December 2014;

(f)All documents submitted to the Department in support of the applicant’s [student] visa application, including, relevantly, his [student] visa application form which was lodged on 28 January 2014, Kenyan birth certificate and Kenyan passport;

(g)All documents submitted to the Tribunal in support of the applicant’s review application, including:

·post-hearing submissions from the applicant’s representative dated 17 December 2021;

·pre-hearing submissions from the applicant’s representative dated 12 May 2021;

·a statement of claim of the applicant dated 12 May 2021;

·a statutory declaration from the applicant, sworn on 17 December 2014; and

·a witness statement from [Mr K’s] dated 22 May 2021.

(h)Country information from the applicant’s submissions and other sources, as discussed at the hearing before the Tribunal on 27 May 2021. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (DFAT) most recent Country Information Report on Somalia dated 13 June 2017 (DFAT Report on Somalia), the United Kingdom Home Office’s (UK Home Office) most recent Country Background Note on Kenya dated May 2020 (UK Home Office Report on Kenya) and the United States Department of State’s most recent Human Rights Report on Kenya, published in 2020 (US Department of State Report on Kenya).

Country of reference / receiving country:

176.   The applicant claims to be a citizen of Somalia. Based on evidence provided to the Department by the applicant, the Tribunal, having requested verification of the integrity of his birth certificate and passport, and it having been advised that the passport is bogus and the birth certificate most likely bogus, is of the view that his identity documentation is bogus and fraudulently obtained. The Tribunal is aware of country information referenced above (US Department of State Report, 2016), that few citizens in Somalia have the means to obtain passports and that due to widespread passport fraud, many foreign governments did not recognise Somali passports as valid travel documents.

177.   The applicant claims that he is not Kenyan and that everyone identifies him as being Somali by appearance and by his name.

178.   The Tribunal noted a witness statement submitted by the applicant from a man who claims to also be Somali now living in Brisbane who also resided in [the] Refugee Camp and stated that he met the applicant there. He attests to the applicant arriving there with his siblings. He stated that he met the applicant again by chance in [Suburb 2] in Victoria and they have remained in contact since. He does not seek to attest to any of the applicant’s claims of past experiences in Somalia or Kenya, but states that he knows that the applicant is Somali. He states that the applicant speaks Somali fluently and that they communicate in Somali. He states that he can tell by the applicant’s appearance that he is Somali. He gave the applicant a positive reference, stating that he is a good person.

179.   However, the results of identity investigations undertaken by the Department’s National Identity Verification and Advice section, determined that the Kenyan passport produced by him upon entry to Australia together with a [Student] Visa, were valid and genuine.

180.   The Tribunal is prepared to accept that the applicant carries dual nationality, that he was born in Somalia but obtained citizenship in Kenya after relocating there at some time in his life.

181.   Accordingly the Tribunal finds that Somalia and Kenya are his countries of nationality and also his receiving countries for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

182.   The Tribunal is satisfied on the basis of the evidence before it that the applicant does have a right to enter and reside in either country. However, the Tribunal makes no findings as to whether the applicant is excluded from Australia’s protection obligations under s.36(3) of the Act.

Hearing:

183.   The applicant attended in-person hearings before the Tribunal on 27 May 2021 and 1 December 2021 to give evidence and make arguments in support of his case. He was accompanied and represented by his legal representative who attended by telephone.

184.   After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa, he must either be recognised as a refugee or be a person entitled to Complementary Protection.

185.   The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Kenya. This means the Tribunal must be satisfied that there is a real chance that he will suffer serious harm if he is returned to Kenya. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

186.   With regard to Complementary Protection, the Tribunal explained there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Kenya.

187.   The Tribunal confirmed with the applicant that just one witness was recorded for appearance during the hearing. The Tribunal attempted to contact that witness during the 27 May 2021 hearing, but the witness did not answer his phone.

Section 376 and 438 Certificates

188.   A preliminary issue which arose for consideration in this matter is the effect of two certificates on Department file [number] purporting to restrict the disclosure of information pursuant to s.376 of the Act.

189.   The certificate on Department file [number] states that the disclosure of the material contained in folios 20-27, 45-49 and 54-73 would be contrary to the public interest, because it contains details of the Department’s processes for investigating information and the sources of information and could prejudice future investigations

190.   The Tribunal noted that it had provided to the applicant and representative a copy of the Notice prior to the hearing and they both confirmed having received it.

191.   The Tribunal had considered the validity of the Certificate. It had determined that the Certificate may not be valid as it was issued under s.376 of the Act and related to a Part 7 protection matter.

192.   The Tribunal had written to the Department advising that the Certificate issued under s.376 of the Act may not be valid as it related to a Part 7 protection matter and requested that the Department notify the Tribunal if it intended to reissue the certificate. The Department re-issued a certificate under s.438 on 27 May 2021. The Tribunal subsequently provided the applicant and representative a copy of the s.438 Certificate at the 27 May 2021 hearing.

193.   The Tribunal considered the validity of the second Certificate. It determined that to declare the Certificate invalid would have the effect of revealing confidential investigative methods. Accordingly, it held the certificate to be valid.

194.   The Tribunal also noted that the general nature of the information contained in the folios had been disclosed to the applicant during the interview with the delegate.

195.   The Tribunal discussed its determination with the applicant and representative. The representative did not object to the Tribunal’s determination.

Assessment of claims and evidence, and findings:

Is the grant of the visa prevented by s.91WA?

196.   The Tribunal considered the potential application of s.91WA of the Act.

197.   During the 27 May 2021 hearing, the Tribunal discussed the findings of the delegate in relation to nationality. It noted the analysis undertaken by the delegate in relation to the arrival in Australia of a person called [the applicant] on [date] February 2014. The delegate also considered the applicant’s claims made in his protection visa application dated 18 November 2014 that his name was [Alias 1] and that he was a Somali national. In his protection visa application, the applicant stated that he did not have a copy of his birth certificate or identification documents as they had been left behind in his family home when he fled Somalia. He also claimed that he had travelled to Australia on a passport that was not in his name and that his passport was taken from him by the person that arranged it for him.

198.   The Tribunal had also noted that the applicant had provided biometric data to the department on 8 December 2014, which led the department to conclude that the applicant’s identity was that of [the applicant], a Kenyan national who had travelled to Australia from Kenya pursuant to a [student] visa which had been granted on 10 February 2014.

199.   The Tribunal noted the findings made by the Department’s National Identity Verification and Advice (NIVA) section on 5 June 2015, following an identity interview with the applicant on 18 May 2015, that [Alias 1] and [the applicant] were one in the same person, and that he was a national of Kenya.

200.   The Tribunal noted that following the identity finding by NIVA, the applicant subsequently provided the Department with a copy of a Somali Birth Certificate and Passport.

201.   The Tribunal noted that the delegate then considered various pieces of country information and advice and elected not to give any weight to the Somali passport and birth certificate.

202.   The Tribunal asked the applicant whether he believed the passport and birth certificate to be genuine. He replied that he had gone to the Embassy and paid to get one. Asked again, as the Tribunal did not believe the question had been answered, the applicant stated that he sought the passport from the Somali Embassy in Nairobi in Kenya.

203.   Asked a third time, the applicant then said that he thought it was genuine but that other people he knew and had used identical documents which had been obtained through the Embassy were stopped at Nairobi airport and arrested. The applicant went on to add that there was an understanding between the Kenyan Government and the UNHCR that Somali passports not be recognised.

204.   The applicant then said that as a consequence of that, he went and got a Kenyan passport.

205.   The Tribunal expressed its concerns about the fact of the possibility that such documents may not be genuine, but particularly noted that there seemed to be speculation that they weren’t genuine, but that the documents had not been actually tested or verified.

206.   The Tribunal indicated that it would adjourn the hearing to have both documents verified.

207.   After some further discussion about the possible application of s.36(3) and whether the applicant might have a right to return to South Africa or Kenya, and a brief discussion about his claims, the Tribunal adjourned the hearing on the understanding that it would seek to have the Somali documents which had been submitted to the Department as evidence of the applicant’s Somali nationality, verified as genuine documents or otherwise. The Tribunal would then communicate those findings to the applicant and reconvene the hearing.

208.   The hearing was reconvened on 1 December 2021.

209.   The Tribunal discussed with the applicant and the representative the advices of the Department in relation to the Somalian passport and birth certificate that the applicant had presented to the Department as evidence of his identity.

210.   The Tribunal noted that despite attempts by the department to have the documents sent to the Somali Immigration and Naturalization Directorate, the Department confirmed it had received no responses by telephone or email. It advised that due to a diplomatic breakdown between Kenya and Somalia, Ambassadors to both countries had been recalled and diplomatic missions closed in early 2021. Further, and as a result of COVID-19, the IOM Verification Services Agreement for Sub Saharan Africa has been suspended.

211.   However, the Department had noted in relation to the passport, that the passport number is altered. Genuine Somali passports have the passport number imprinted using letter press. The passport presented has the numbers handwritten. Further, the threads of the passport appear altered, particularly in the middle of the document provided, pages 1 and 2.

212.   In relation to the birth certificate, the Department advised that as a result of extended periods of civil war, there has been limited registration of civil events such as births and deaths from the early 1990s. Prior to then, civil registration was limited and documents were only obtained when required for a specific purpose. Civil registration processes were re-established in 2014.

213.   The advice went on to state that Somali embassies regularly issue birth certificates for Somali nationals born in the embassy’s countries of responsibility. These documents are considered highly unreliable and are often issued for births that have occurred in Somalia, and are issued on the basis of a statement made at the time of application with no support documents required to support the details of the birth.

214.   It was noted that the birth certificate is claimed to have been issued in [year]. There were no processes in place for obtaining civil documents during the period the applicant claims to have obtained the birth certificate.

215.   The Tribunal noted from his evidence that the applicant claimed to have obtained both of the documents when he decided he wanted to go to South Africa. The Tribunal will consider the applicant’s evidence as to how, when and where the documents were obtained below.

ASSESSMENT - CIRCUMSTANCES PREVENTING THE GRANT OF THE VISA

216.   The Tribunal has considered whether the applicant’s visa application is required to be refused under s.91WA of the Act on the basis that he provided, or caused to be provided, a bogus document as evidence of his identity, nationality or citizenship.

217. Section 65(1) of the Act states that the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is precluded by s.91WA of the Act (emphasis added).  Section 91WA(1) of the Act requires the Minister to refuse to grant a protection visa to an applicant who provides, or causes to be provided, a bogus document as evidence of their identity, nationality or citizenship, or if the Minister is satisfied the applicant has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship.  However, the requirement that the Minister must refuse to grant a protection visa in circumstances contemplated by s.91WA(1) of the Act will not apply if the applicant:  first, has a reasonable explanation for the provision, destruction or disposal;  and second, either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2) of the Act.  Section 91WA is extracted in the attachment to this decision.

218.   The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all applications currently before the Tribunal as at that date,[4] including this application.

Did the applicant provide, or cause to be provided, a bogus document as evidence of his identity?

[4] Section 2 of the Migration Amendment (Protection and Other Measures) Act 2015.

219.   It is not unfair for the Tribunal to state that the applicant’s claims have evolved over the course of time of dealing with his application.

220.   To recap, the applicant initially claimed to enter Australia pursuant to a passport provided by a smuggler which the smuggler took off him when he had arrived in Australia.

221.   Given the concerns the Department had in relation to his identity, NIVA conducted an identity interview and determined that the applicant had actually entered Australia pursuant to a Kenyan passport and a [student] visa.

222.   In response to that, the applicant claimed that he was not Kenyan. He claimed variously that he had been given a Kenyan birth certificate by his father, that his uncle had paid money to purchase a birth certificate, that after having concerns about using his Somali passport, he purchased a Kenyan passport, that the Kenyan passport did not contain his photo, that he gave it back to the smuggler after arriving in Australia and that he had misplaced it since arriving in Australia. He also claimed that his [aunt] contacted a man who obtained a passport and visa for him. The passport was obtained by paying bribes at the passport office.

223.   In relation to the Somali passport, he has claimed variously that he paid money to some people in Kenya to obtain it, that he paid a man to obtain a birth certificate and passport, that he can’t recall whether the man did apply to the Somali authorities, and finally, at this hearing, that he had obtained a passport and birth certificate from the Somali Embassy in Nairobi.

224.   He had also claimed that he had had a passport when he was a child, but he no longer had possession of that document.

225.   The effect of the applicant’s evidence is that he had possession of two passports. Copies of each were presented at different times to the Department and to the Tribunal.

226.   The applicant had used the Kenyan passport in the name of [the applicant] to enter Australia on [date] February 2014.

227.   He made a protection visa application on 18 November 2014 in the name of [Alias 1] and claimed to be Somalian. Subsequent to an identity determination, he produced a Somali passport purportedly issued [in] 2010 in the name of [Alias 1] as evidence of that identity.

228.   The applicant, at the time of making his protection visa application, and subsequently, and throughout this hearing, has claimed that his true identity is [Alias 1]. The Tribunal, after a consideration of all of the evidence presented, and a witness statement, is prepared to accept that one of the applicant’s identities is [Alias 1], but that he also carries a Kenyan nationality.

229.   The Tribunal has explained to the applicant that it is interested in the production of the Somali passport and birth certificate which he has presented as evidence of what he claims is his true identity.

230.   At various stages during the via process, the applicant has been asked whether he believed his Somali passport was genuine.

231.   When asked by the delegate in his protection visa interview whether the birth certificate and passport were genuine, the applicant did not provide an answer except to say that in Somalia it is possible to get any document if you pay money.

232.   In his extensive written statement of 12 May 2021, he claimed to have paid a man to obtain a passport and birth certificate for him. He also stated that he can’t be sure that the man applied to the authorities for it. But in the same paragraph[5] as making that statement, he prefaced how he obtained the documents by stating that “in Somalia, given the conflict, identity documents are not commonly used. There are no formal record keeping systems.” In the preceding paragraph he had stated that “Due to the situation in Somalia, it is difficult to obtain identity documents”.

[5] Paragraph 5 of Statement of applicant, dated 12 May 2021

233.   In her submission dated 12 May 2021, the representative states on page 4, “While we accept that document fraud is also prevalent in Somalia and the applicant has candidly claimed that he cannot be certain of the veracity of his Somalian documents…”

234.   During the first hearing on 27 May 2021, the Tribunal made it clear to the applicant that it proposed to deal only with two issues, being the circumstances that might cause the Tribunal to need to consider s.91WA and s.36(3). It explained that it needed to focus on the various identity documents that had been produced and to also consider the claimed nationality of the applicant.

235.   After an analysis of all the documents that had been used, presented or found by the Australian authorities, the Tribunal focussed on the Somali documentation presented as evidence of the applicant’s claim to be Somalian. The Tribunal asked the applicant how he had come to obtain the Somali birth certificate and passport. The applicant offered a number of explanations as to the events in Somalia and the civil war and the treatment of Somalis in Kenya. Referring again to the Somali documents, the applicant then stated that he went to the Somali Embassy in Nairobi and got this identity. He stated that he applied for it in 2009 or 2010. He stated that he paid them US$100. He stated that he was worried about using the passport to go to South Africa. The Tribunal asked the applicant whether that was because he thought the passport was dodgy. He said no, that it was because the people in the Embassy were not real government officials and that all Somali people would go through a refugee camp, so he decided to get a Kenyan passport as he already had a Kenyan birth certificate.

236.   When asked again about whether he thought the Somali passport he had acquired was genuine, he stated that he wasn’t talking about it being genuine, he was saying that the UNHCR and Kenyan Government has an understanding that no Somali should ever travel. That if you have a Somali passport, you cannot go anywhere.

237.   Asked again about whether he believed the passport to be genuine, he then said he thought it was. But he knew other people, with similar documentation, who had acquired their documentation from the Nairobi Embassy, who were arrested on their way to the airport.

238.   The Tribunal then discussed the delegate’s decision and her use of country information to conclude that it is almost impossible to get a genuine Somali passport given the political instability in Somalia. The Tribunal asked the applicant whether he agreed with that point. He said that he did, and that the Kenyan people use the Somalis as cash cows by letting them just apply for Somali passports they can’t use.

239.   At the resumed hearing, the Tribunal discussed its findings in relation to the passport and birth certificate and again asked the applicant about his views on the genuineness of the documentation.

240.   This time, the applicant took the view that because he had applied for the documents at an Embassy, he believed they would be genuine. And the fact that he would be deported if he used them had nothing to do with whether they were genuine or not, it is because the Kenyan authorities discriminate against the Somalis and deport them, even if they are trying to leave the country, as he would be in trying to go to South Africa.

241.   The Tribunal asked the representative for her view, and she agreed that it would be her submission that if the applicant went through an authority linked to the country of his nationality to obtain a document, then it would be a reasonable assumption that it was genuine.

242.   The representative’s post hearing submission dated 17 December 2021 supported her oral submission in the hearing. She contended that the applicant obtained his Somali passport from the Somali Embassy in Kenya after presenting his Somali birth certificate to the embassy. She submitted the fact he applied for and obtained the passport from an Embassy of Somalia through a formal application process led him to believe it was a genuinely issued document. She submits this is a logical conclusion for the applicant to reach. She also submitted that if the applicant believed the passport was a bogus document, it is unlikely he would have presented it to the Department as evidence of his identity. She submits the fact that he consented to the passport being sent for verification by the Department is further evidence that the applicant believed it was a genuine document.

243.   The Tribunal has considered that submission. It has an issue with it. At no time has the applicant stated that he submitted a birth certificate to the Embassy. He has maintained all along that he obtained the birth certificate and the passport from the Embassy.

244.   The first question to be determined in this regard is whether any documents provided, or caused to be provided, by the applicant are “bogus documents” within the meaning of that term in s.5(1) of the Act.

245.   The Tribunal is satisfied that the applicant had used the Kenyan passport in the name of [the applicant] to enter Australia on [date] February 2014 and used that passport as evidence of his identity at the time of entry. On his own admission, that passport was bogus, even if validly obtained. At the delegate interview, at this hearing, and on his Protection Visa Application, the applicant has stated that his name was [Alias 1].

246.   In support of his identity as [Alias 1] and as claimed in his protection visa application, the applicant presented a Somali passport and birth certificate to the Department. The Department has since determined that neither documents are genuine nor could be genuine. His various explanations as to how he obtained the documents have been conflicting.

247.   The Tribunal finds that the Somali passport in the name of [Alias 1] which was provided, or caused to be provided, to the Department by the applicant purports to have been, but was not, issued in respect of the applicant as contemplated by paragraph (a) of the definition of “bogus document”, and that such a document is a “bogus document” for the purposes of that definition in section 5(1) of the Act.

Does the applicant have a reasonable explanation for providing the bogus document?

248.   The second question to be determined in relation to the application of s.91WA to this case is whether the applicant has a reasonable explanation for providing or causing to be provided a bogus document.

249.   The applicant has provided a number of conflicting explanations as to how he came to obtain the documents.

250.   The Tribunal noted and has taken into account that the applicant made his protection visa application in his claimed true identity of [Alias 1]. He has maintained the claim of this identity before the delegate during his interview. He has been consistent in that claim during this hearing, and the Tribunal notes the representative’s pre-hearing submission to that effect.

251.   The Tribunal has had to assess the applicant’s credibility, and has done this purely on the basis of the applicant’s various evidence in relation to his identity. The Tribunal, whilst noting the various evolutions of his claims set out in this decision, has not tested his claims and therefore has put no weight on any of the various statements in relation to them.

252.   The Tribunal has considered the various explanations offered as to how he obtained the documents. The Tribunal is most concerned by his extensive, and presumably considered, statement, and the representative’s submissions, dated shortly before the hearing on 12 May 2021, wherein he stated that he paid a man to obtain a birth certificate and passport, and his claims that he cannot be certain of the veracity of the documents.

253.   Contrasted then with his oral evidence at hearing, that he stated that he obtained the documents at the Embassy and could remember what he paid for them, and that as a consequence, was entitled to believe them to be genuine, notwithstanding his doubts as to the staff who were employed in the Embassy.

254.   His explanation for presenting the bogus documents then is that he believed them to be genuine, and would not have submitted them if he knew them to be false.

255.   The Tribunal has considered and weighed up all of the evidence presented by the applicant in relation to his identity.

256.   The Tribunal advised at the hearing that its role was to review the decision de novo, and that it would be taking a “totally fresh look at his application”. The role of the Tribunal is to review the decision of the delegate, and it is entirely open to the Tribunal to make new, different, even novel findings, to those of the delegate. Accordingly, even though the delegate did not consider the issue of the enlivenment of s.91WA, it is open to the Tribunal to do so.

257.   In relation to the substance of the arguments raised by the applicant in the hearing and in his post-hearing submission, the Tribunal noted particularly in relation to the issue of the genuineness of the documents, the applicant maintained that he obtained the documents from the Embassy and could therefore assume they were genuine, notwithstanding his previous evidence that he knew that he had paid someone to obtain them, that he accepted country information that such genuine documents were almost impossible to obtain and his evidence to the delegate that money could buy anything in Somalia.

258.   In addition, the applicant has shown a preparedness to obtain, rely upon and present as evidence of his identity, and seek a visa on the basis of, a document that he maintains is knowingly bogus, his Kenyan passport.

259.   All of this adds up to the conclusion drawn by this Tribunal that the applicant’s explanations as to how he obtained the documents and of believing the documents to be genuine and that he wouldn’t have submitted them otherwise is not credible or genuinely held.

260.   Accordingly, the Tribunal finds that the applicant does not have a reasonable explanation of providing a bogus document.

CONCLUSION   

261.   The Tribunal is satisfied that the applicant has presented a bogus Somalian passport and birth certificate as evidence of his identity.  The Tribunal is not satisfied that the applicant has a reasonable explanation for providing the bogus document to the Department. 

262.   Accordingly, the Tribunal is satisfied that s.91WA(1) of the Act applies to the applicant and that, accordingly, grant of a protection visa is precluded by s.91WA of the Act.

DECISION

263.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Michael Hawkins AM
Member