1731667 (Refugee)
[2021] AATA 2894
•2 June 2021
1731667 (Refugee) [2021] AATA 2894 (2 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1731667
COUNTRY OF REFERENCE: Kenya
MEMBER:Michael Hawkins AM
DATE2 June 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 02 June 2021 at 4:58pm
CATCHWORDS
REFUGEE – protection visa – Kenya – religion – Sufi Islam – race – Hawiye tribe – particular social group – Silcis Gorgaate clan – fear of harm from extremist militias – attacks and threats, family members killed – fabricated identity, false or misleading information and bogus documents – no reasonable explanation – born in one country, citizen of another, permanent resident of third – concession of some information and some parts of claims – denial of identity established by document check and continued assertion of fabricated identity – right of return to permanent residence country – refoulement to birth or citizenship countries – COVID-19 travel restrictions – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (3), 65(1), 91WA(1), 438, 487ZI
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211CASES
MIAC v SZRHU [2013] FCAFC 91
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
V856/00A v MIMA (2001) 114 FCR 408Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (“the Act”).
The applicant who claims to be a citizen of Somalia, applied for the visa on 17 February 2014. The delegate refused to grant the visa 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 866.211 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The delegate also refused to grant the visa under subsection 91WA(1) of the Act on the basis that the applicant has fabricated his claimed identity and failed to acknowledge his real identity, and that he has failed to provide a reasonable explanation for providing a bogus document as evidence of his identity, nationality or citizenship.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
Circumstances preventing the grant of the visa
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
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
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Another 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. A further issue the Tribunal had to consider is whether or not the applicant had a presently existing right to enter and reside in another country, being either Kenya or [Country 1], and that if he did, then he may be excluded from Australia’s protection obligations and that he would be unable to obtain a Protection Visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND:
(as summarised in the delegate’s decision)
Identity Assessment:
Claimed identity
The applicant claims to be [applicant name], born [date].
The applicant claims he is a citizen of Somalia only.
The applicant claims to be a Sufi Muslim.
On 17 February 2014, the applicant applied for a Class XA, Subclass 866 (Protection) visa in his claimed identity [applicant name] with assistance from [Legal Service 1]. The applicant provided a certified copy of a Somali birth certificate with an English translation as evidence of his claimed identity. The applicant later submitted the original document for examination along with a laminated card purporting to be an international driver’s licence issued by the Somali Ministry of Transport.
Claimed method of arrival in Australia
The applicant claimed that he left Somalia on [Date 1] December 2013, travelling by plane to [Country 2] on a Somali passport. The applicant claimed he found a people smuggler in [Country 2], who accompanied him by plane to Brisbane. The applicant claimed that he arrived in Australia on [Date 2] December 2013 as an imposter using a passport in the name ‘[Alias 1]’. The applicant claimed he could not recall the country that issued this passport.
Actual method of arrival in Australia
Departmental investigations revealed that the applicant in fact arrived in Australia on [Date 3] December 2013 and was immigration cleared as the holder of a [Visitor] visa issued against a Kenyan passport in the name '[Alias 2]'. The Department further discovered that [Alias 2] had previously visited Australia on a [Tourist] visa from [August] 2012 to [September] 2012, and that he held a [Country 1] permanent residence permit.
First protection visa interview with the delegate conducted on 3 February 2015
The applicant was twice interviewed by the Department in relation to this protection visa application. At the first interview on 3 February 2015, the applicant claimed that he was a citizen of Somalia only and did not have permanent residency in another country.
When it was put to the applicant that the Department had discovered his true method of arrival, as well as his apparent prior travel to Australia and his [Country 1] permanent residency, the applicant did not immediately respond. The Departmental officer gave a natural justice break, during which his agent from [Legal Service 1] withdrew his appointment and left.
Following the natural justice break, the applicant conceded that he had arrived in Australia on a Kenyan passport in another identity as discovered by the Department. The applicant also conceded that aspects of his protection claims against Somalia were fabricated, and that he had left Somalia in 2006 rather than in December 2013 as previously claimed. The applicant also acknowledged that he had visited Australia previously. However, the applicant maintained that his real identity is as claimed, and claimed that the Kenyan passport was issued to him fraudulently.
The applicant claimed that he has held two Kenyan passports. He claimed that he gave his photograph, fingerprints and USD$200 to a broker in Mogadishu to obtain the first passport in 2006. He claimed that the passport came with visas for [Country 1] and [Country 3]. He claimed that he used the passport to migrate to [Country 1], where he subsequently acquired permanent residency.
The applicant claimed that his life was in danger in [Country 1], so he found another broker who assisted him to obtain Australian visas. He claimed that he was not aware of the contents of his Australian visa applications.
The applicant claims that he travelled to Australia the first time with the intention of settling here ‘the correct way’, but he did not have any help and was scared he would lose his return ticket, so he left. The applicant claimed that since his most recent arrival he has thrown away his Kenyan passport, as he is scared of being removed to [Country 1] where he fears for his life.
Second protection visa interview with the delegate conducted on 18 February 2015
At the second interview on 18 February 2015, the applicant was asked again about how he fraudulently acquired a Kenyan passport. The applicant claimed that he had obtained his first Kenyan passport via a broker in Mogadishu in 2006. He claimed that he had actually requested a passport in the name of '[Alias 2]' because [Alias 2’s first given name] is his nickname.
The applicant claimed that while the broker had taken his photograph, the passport he was given actually contained his older brother's photograph. He claimed that he was given a choice between two passports and selected the one with the photograph that most closely resembled him. The applicant claimed that he first saw the passport at the airport in Nairobi and that it contained visas for [Country 1] and [Country 3]. He claimed that he chose to travel to [Country 1] rather than [Country 3] as some of his brothers had travelled to [Country 3] and had been sent back.
The Departmental officer put to the applicant that, at the first interview, he had stated that the passport contained his photograph and he did not get to choose the name in the passport. The applicant responded claiming that he was young and his travel was arranged by his parents. The Departmental officer put to the applicant that he would have been [age] years old in 2006 (assuming his claimed age is correct), and he had presented multiple versions of how he obtained the passport. The applicant did not provide any further response.
The applicant was asked about his second Kenyan passport. The applicant claimed that he obtained it via a different broker while he was in [Country 1]. The applicant was asked how a digital photograph of him came to be in the second passport. The applicant claimed that he does not know but the second broker had taken his photograph.
The applicant was asked if he had ever had any difficulty travelling to Kenya on fraudulent Kenyan passports. He claimed that he had not and that since his initial journey in 2006, he had visited Kenya three times, including on the second passport and did not have any problems.
It was put to the applicant that a preliminary analysis of his Somali birth certificate indicated that it may be counterfeit as it was produced on an inkjet printer, which is an unlikely production method for a document that was apparently issued prior to 1995. The applicant did not respond.
It was further put to the applicant that it appeared unlikely that the Kenyan passport he used to travel to Australia had been photo-substituted, as it contains a digital photograph with a security laminate over it. The applicant was informed that the passport details would be checked with the Kenyan authorities, and he would be given an opportunity to comment if the outcome of that check is adverse to his application.
Identity documents examination
On 27 February 2015, the Department received a response from the Kenyan authorities confirming that Kenyan passport number [number] was genuinely issued to [Alias 2] [in] 2007, and that the person who appears on the document copy provided to the Kenyan authorities matches their records regarding who was issued the passport.
On 10 April 2015, a Departmental forensic document examiner reported that the Somali birth certificate provided by the applicant is counterfeit. The birth certificate had been compared against Departmental reference systems which contain information about this model of birth certificate, and that information indicated the birth certificate is counterfeit. It was also observed that there are no manufacture, issuing or security features present in the birth certificate. The certificate is damaged. The certificate has been printed using an inkjet process, which is an uncommon and expensive method to create a mass-produced government document. The signatures and wet stamp impressions on both sides of the document have been printed using an inkjet process. The wet stamps misalign with the stamp image. There is open source information on the internet from the United Kingdom Revenue Stamp Society that provides images of specimen revenue stamps. The Somalia Revenue Stamp samples on this website indicate they are high quality, commercially printed, and contain watermarks and perforated edges unlike the low quality, inkjet printed, straight cut edged stamps on the certificate the applicant provided.
The Departmental forensic document examiner also examined the international driver’s licence provided by the applicant and returned an inconclusive result. The examiner noted there are no manufacture, issuing or security features present in the document. Again, it has been printed using an inkjet process which is an uncommon and expensive method to create a mass-produced government document.
Identity documents seized
On 16 May 2016, the Departmental officer who had interviewed the applicant notified him that she reasonably suspected his Somali birth certificate and international driver’s licence were bogus documents as defined in s.5(1) of the Act, and were therefore deemed to be forfeited to the Commonwealth under s487ZI(2) of the Act. The applicant was informed that he could institute court proceedings within 90 days to either recover the documents or seek a declaration that the documents are not forfeited.
At the time of the delegate’s decision, the applicant had not taken any legal action regarding his seized identity documents.
Procedural fairness letters
On 22 August 2017, the delegate wrote to the applicant and invited him to comment on the information received from the Kenyan authorities that the Kenyan passport he used to travel to Australia was genuinely issued and that the person who appears on the passport (the applicant) matches Kenyan government records regarding who was issued the passport. The delegate put to him that this information, combined with the numerous adverse credibility issues discussed with him during his protection visa interviews, indicates that his real identity is as recorded in the Kenyan passport.
Further, the delegate invited him to raise any protection claims he may have against Kenya.
Finally, the delegate invited him to comment on the information that he has permanent residency in [Country 1], and to raise any protection claims he may have against [Country 1]. The delegate provided the applicant with digital recordings of his protection visa interviews to assist him in preparing his response.
On 7 September 2017, the delegate wrote to the applicant again and informed him that the delegate reasonably suspected that the Somali birth certificate and international driver's licence, along with several other identity documents he has since provided to the Department were bogus documents. The delegate set out for him the reasons why a Departmental forensic document examiner had found his birth certificate to be counterfeit.
The delegate also noted the forensic document examiner’s concerns about the international driver’s licence and informed the applicant that, in light of all the available countervailing identity information, the delegate reasonably suspected the international driver's licence is also counterfeit.
Finally, having formed a reasonable suspicion that his birth certificate and international driver's licence are counterfeit, the delegate informed the applicant that it was reasonably suspected his intermediate school certificate is counterfeit and his other documents issued in Australia were obtained because of false or misleading statements he made to the issuing authorities about his identity. The delegate explained to him that if it is assessed that he produced a bogus document as evidence of his identity, nationality or citizenship, then his application may be refused under s91WA(1) of the Act. The applicant was invited to comment on this information.
On 18 September 2017, the Department received a response from the applicant. In summary, the applicant claimed again that the Kenyan passport he used to travel to Australia is 'not a legitimate Kenyan passport' and that he is a citizen of Somalia only. Contrary to his previous statements, the applicant claimed that his father obtained the first Kenyan passport for him in Mogadishu. The applicant claimed that his father gave the broker the name [Alias 2, first given name] and the broker had made up the rest of the name (Alias 2, rest of name) and changed his date of birth. The applicant claimed that the broker made him a birth certificate, identification card and a death certificate for his mother, which were used to obtain Kenyan identification. The applicant submitted copies of the following additional documents in support of his claimed Somali identity:
·A document from the Somali Consulate General in Australia, issued [September] 2017, certifying that he is a Somali national;
·The bio-data pages of Somali passports issued to his mother, father, sister and [brothers];
·A letter from the District Court of Mogadishu verifying his identity and that of his family;
·Identification for two elders from his tribe who witnessed the District Court document;
·A letter from [an] Islamic Society 'certifying' that he is a Somali citizen; and
·A letter from a Somali social worker ' declaring ' that the applicant is from Somalia.
On 19 October 2017, the delegate wrote to the applicant and informed him that, after considering his comments and supporting information provided in response to previous letters , the delegate reasonably suspects that the documents he had previously provided as evidence of his identity, nationality or citizenship are bogus documents. The delegate explained to him that the grant of his protection visa will be prevented by s.91WA(l) of the Act unless the delegate is satisfied that he has a reasonable explanation for providing bogus documents and either provides documentary evidence of his identity, nationality or citizenship, or takes reasonable steps to provide such evidence. The applicant was given an opportunity to do this.
On 14 November 2017, the delegate received a response from the applicant. In summary, the applicant claimed he is aware that the documents issued by Somali authorities are not considered verifiable or legitimate by other governments. The applicant claimed that he has done everything in his power to obtain proof of his identity and nationality. He claims that his mother obtained his birth certificate for him in 2010, and he had no reason to believe it was a bogus document. He claimed that he flew to Melbourne to meet the Somali Consul General [in] September 2017. He claimed that the Consul General was satisfied he is a Somali and issued him with a birth certificate as well as the previously provided certificate of citizenship. He claimed that he obtained his intermediate school certificate in 2000 and he had no reason to believe that it was a bogus document. He claimed that when he obtained his international driver's licence in 2005 there was no functioning government, so he obtained it 'the same way that everyone obtains this document in Somalia at that time'. He claims he has tried to obtain further identity documents to assist the Department, and referred to the documents provided with his previous response. He submitted evidence of his travel to Melbourne, communication with the Consulate General and three family photographs.
Claims:
Summarised from the applicant’s XA 866 protection visa application and written claims
The applicant claims that al-Shabaab targeted the [Surname (identical to the applicant’s family name)] family, the descendants of [Ancestors], who were strong followers of Sufism.
The applicant claims that in early November 2009, al-Shabaab militia attacked his father and uncles, and killed two of his uncles. The applicant claims that many Sufi followers and four of his cousins were seriously injured. The applicant claims his father and brother, [Mr A] fled to Mogadishu.
The applicant claims that in January or February 2010, there was another declaration from al-Shabaab broadcast on the radio stations that the [Surname] descendants were infidels and would be prosecuted. The applicant claims al-Shabaab released a list of names, which included his father, uncle, cousins and himself.
The applicant claims that in May 2010, al-Shabaab militia attacked his home in Mogadishu with machine guns and grenades and killed his father, his father’s third wife and his sister-in-law. The applicant claims his uncle, mother and wife were injured in the attack. The applicant claims he was there and had panicked.
The applicant claims that the next day the District Commissioner came and said that the government could not protect his family now that al-Shabaab knew where we lived and he told us to move to another place.
The applicant claims that he, his mother, wife, two children and two of the orphaned children from his father’s third wife fled to a displacement camp at Alasha Biyaha in Mogadishu.
The applicant claims he and his brother drove a [vehicle] in Mogadishu to make a living. The applicant claims that on 21 September 2010, his brother was stopped by al-Shabaab while driving their [vehicle] in Mogadishu and was killed. The applicant claims al-Shabaab left a note on his brother’s body with a list of names of some of the descendants of [Ancestors], including his name. The applicant claims the note said that they would find us and kill us no matter where we ran to.
The applicant claims that after his brother’s death, they fled to Somalia. The applicant claims his elder brothers and their families fled to Somalia in November 2010, while he, as the youngest sibling, was told to stay with their injured mother. The applicant claims his wife was also injured.
The applicant claims that he changed his identity and told others that he was from a majority tribe.
The applicant claims that in January 2013, his brother-in-law asked if he could drive the [vehicle] to get funds for our families. The applicant claims that in July 2013, al-Shabaab killed his brother-in-law at Bakarah in Mogadishu. The applicant claims they also kidnapped the assistant driver and forced him to tell them where I was hiding. The applicant claims that he was not home and they left a message with my wife and mother saying they would come back. The applicant claims that when they got the message they moved to his mother’s brother’s home in [Location 1] in Mogadishu.
The applicant claims that he was attacked at his home by his wife’s tribe, who accused him of causing the death of their son. The applicant claims they believed that he had knowingly given their son the [vehicle] even though I knew that al-Shabaab was looking for the [vehicle]. The applicant claims he jumped through the back window and fled to a friend’s home in [Location 2] in Mogadishu, where he hid until he left Mogadishu on [date] December 2013.
Summarised from written submissions made by the applicant’s previous representative dated 21 January 2015
The applicant claims to be an ethnic Hawiye of the Silcis Gorgaate clan, who fears persecution on the basis of his ethnicity, membership of a particular social group, namely the Silcis Gorgaate clan, a sub-clan of the Hawiye tribe, and his Sufi religion.
The applicant claims to have been targeted by terrorist organisation, al-Shabaab.
The applicant fears he will be killed if he returned to Somalia, and faces a real risk of suffering serious and significant harm. The applicant claims the Somali government is unwilling or unable to protect him from attacks perpetrated by al-Shabaab.
The applicant claims he was raised a Sufi and believes in Sufism. The applicant claims al-Shabaab have targeted the [Surname] family, who were strong followers of Sufism. The applicant claims his grandfather, [Ancestor] was a tribal and community leader, and religious leader in Sufism. The applicant claims that when he died, his religious position was passed to the applicant’s uncle, [Mr B], and then to the applicant’s father and other uncle, [Mr A].
The applicant claims that in 2009, the applicant’s grandfather and uncle’s remains were exhumed by al-Shabaab. The applicant claims that two of the applicant’s uncles were killed in 2009 and the applicant believes they were killed by al-Shabaab.
The applicant claims that his name was identified by al-Shabaab as a target, along with other family members.
The applicant claims that in 2010, al-Shabaab attacked the applicant’s home in Mogadishu, killing his father, his father’s third wife and sister-in-law. The applicant also claims that in 2010, al-Shabaab killed his brother and left a note on his body identifying the applicant as a target.
The applicant claims that in 2013, al-Shabaab killed his brother-in-law who was driving the applicant’s [vehicle] and kidnapped the assistant driver to force him to take them to the applicant’s location.
The applicant claims that his brother-in-law’s death was perpetrated by al-Shabaab in pursuit of the applicant also led to retaliation against the applicant by the Abgaal tribe. The applicant claims his wife’s family, who are from the Abgaal tribe, accused the applicant of causing the death of his brother-in-law. The applicant claims the tribe then attacked the applicant’s home and killed the applicant’s uncle.
The applicant claims that he was hiding from unknown persons – believed to be from al-Shabaab and/or the Abgaal tribe – immediately prior to leaving Somalia as they were searching for him.
The applicant fears that his life will be in danger even if he is returned to another area in Somalia, as al-Shabaab will find him wherever he relocates.
The applicant fears significant economic hardship that threatens his capacity to subsist, should he be returned to Somalia. The applicant claims that the deaths of his brother and brother-in-law, whilst undertaking the applicant’s work activities indicates his inability to engage in his usual economic activity, which would threaten his capacity to subsist. The applicant claims he is limited to engage in other economic pursuits in public as he fears people may report him to al-Shabaab.
Summarised from the applicant’s protection visa interviews conducted on 3 February 2015 and 18 February 2015
The applicant was asked by the delegate at both of his protection visa interviews if he feared any harm in Kenya. The applicant responded claiming that the Kenyan authorities will imprison him or remove him to Somalia, because his Kenyan passport was not genuinely obtained and he is not a Kenyan citizen.
The applicant was invited in the delegate’s letter dated 22 August 2017 to raise any protection claims he may have against Kenya. The applicant did not raise any further reasons why he fears returning to Kenya as at the time of the delegate’s decision.
The applicant claimed that his life would be in danger if he returns to [Country 1].
Summarised from written submissions made by the applicant’s representative dated 23 March 2018
The representative submitted that the applicant maintains his true identity is [applicant name] and that he is a Somali national and does not hold citizenship of any other country. The representative further submitted that the applicant admits to having entered Australia on [Date 3] December 2013 using a false passport that was in the name of [Alias 2].
The representative submitted that the information provided by the applicant to the delegate in his second protection visa interview is correct. The representative further submitted that the written responses provided by the applicant to the delegate following this interview was also correct.
The representative submitted that the applicant provided false documents and incorrect information to the delegate because of bad advice he had received from other Somalis.
The representative submitted that if the applicant was a Kenyan citizen as suggested by the delegate then he would speak a different language and dialect. The representative submitted based on country information that the national language in Kenya is Swahili and even Kenyans who are illiterate speak Swahili. The representative submitted that the applicant speaks Somali and a little bit of Arabic, and he does not and cannot speak Swahili.
The representative submitted that the applicant is from the coastal region known as Benadir and that he is part of the Hawiye clan known as Silcis.
Kenyan passports
The representative submitted that the applicant paid a [Country 4] agent, [Mr C] R$[amount] to obtain the second false Kenyan passport in [City 1, Country 1]. The representative submitted that this agent has since been arrested and jailed for providing false documents to many people in similar situations to the applicant’s. The representative further submitted that the applicant was given the false passport and false [Country 1] Temporary Business Permit together. The representative submitted that the applicant did not apply for these documents himself and that the agent did using false documentation. The representative submitted that the applicant later received a permanent residency permit from [Country 1]’s Department of Home Affairs.
The representative submitted that the agent accompanied the applicant to a police station in [City 1] to verify his identity and provide his fingerprints. The representative submitted the applicant used his previous false Kenyan passport, which had a visa attached and was obtained at a market in Kenya as the applicant was planning to travel to [Country 1]. The representative submitted that the applicant had previously obtained Kenyan identity documents with the assistance of a broker. The representative submitted the broker made the applicant’s mother appear to be deceased and his father was given a new name. The representative submitted the reason for this was at the time, the government offered Kenyan identity documents if a person had at least one parent who was deceased, and this was prior to computerisation.
The representative submitted that the name [Alias 2, first given name] was used because the applicant told the broker that this was his nickname that he has been known by since he was a small child. The representative submitted based on country information that Somalis are vetted extensively in order to obtain a Kenyan passport and that many Somalis do and can obtain fraudulent passports. The representative further submitted based on country information that the Kenyan government is aware of these issues and are concerned about how this affects the Kenyan government’s credibility worldwide. The representative submitted that based on this, when the Kenyan authorities were contacted by the delegate in relation to the validity of the applicant’s passport, it is quite reasonable that the Kenyan passport office would not readily confirm the passport to be fraudulent. The representative submitted that the finding by the delegate cannot hold a lot of weight, as the agent who provided the false passport has since been arrested.
Somali birth certificate
The representative submitted that they accept that the verification letter from the Consulate in Melbourne alone does not establish that the applicant is not also a Kenyan national and that he is not the person who used the name [Alias 2, first given name] on arrival in Australia. The representative further submitted that there is however when we look further into other documentary evidence provided by the applicant, a lot of doubt as to the existence of [Alias 2, first given name] and his Kenyan citizenship so claimed by the Department.
Support letters
The representative submitted that the delegate’s findings that the applicant’s identity of [applicant name] is non-existent, that he and his relatives are of different names, and live and hold citizenship of Kenya are unreasonable. The representative submitted that the applicant provided support letters from elders in his village in Mogadishu and that these elders are unlikely to confirm the applicant’s identity if the elders know that the applicant’s family are not Somali nationals and that the mother remains in Mogadishu.
Family relatives
The representative submitted DNA testing reports along with her written submissions. The representative submitted that this evidence clearly states that the applicant is related to the relatives who are Somali nationals and who hold the same name as the applicant.
The representative further submitted that the applicant’s false passport indicates that his mother is deceased, whereas the DNA testing reports establish that she is alive and her passport evidences her Somali citizenship. The representative further submitted that her name is not the name outlined for her on the applicant’s false passports.
The representative submitted copies of passports for his mother and brothers, a photo of the applicant with his mother, documents for the applicant’s brother in [Country 5] and documents for the applicant’s sister in Mogadishu. The representative submitted that the applicant’s two brothers were not declared in his protection visa applicant, as the applicant received incorrect advice that he did not need to include them.
The representative also submitted a court document attesting to the death of the applicant’s father on 22 May 2010.
Somali passport
The representative submitted that the applicant obtained a Somali passport through genuine means.
Marriage certificate
The representative submitted that the applicant was married [in] May 2005 in Mogadishu. The representative submitted a copy of the applicant’s marriage certificate, wedding photographs, the applicant’s wife’s passport and the transcript of a money exchange to his wife.
Claims against Somalia
The representative submitted that the applicant faces persecution in Somalia by the Al-Shabaab. The representative submitted based on country information that ethnic Somalis who have fled Somalia to Kenya are dying at the hands of militant forces. The representative further submitted based on country information that the ethnic Somalis who have fled to Eastleigh in Kenya have become victim to enforced disappearances by military personnel who accuse them of being Al-Shabaab members.
The representative submitted that the applicant has spent several years living in a Western country and that his return would easily be discovered by Al-Shabaab and their spies, which would result in his murder.
The representative further submitted that the applicant cannot return to Somalia as he will be forcibly recruited by the Al-Shabaab or killed because he has had contact with a western country and had foreign infidel influence.
Claims against Kenya
The representative submitted that the applicant cannot live in Kenya, because he has no family there and the Kenyan authorities will be suspicious of his identity. The representative further submitted that the applicant holds a Somali passport and that the Kenyan authorities will soon recognise him as being a Somali citizen and consider him to be a risk in light of the attacks in Kenya by the Al-Shabaab. The representative submitted that the Kenyan authorities may link him with Al-Shabaab.
The representative submitted that if the Kenyan authorities do not accept his Somali passport, but accept his false Kenyan passport, then he will be considered a risk because he has used a Somali passport. The representative further submitted that the Kenyan authorities will interview the applicant and discover he is a Somali national who obtained Kenyan identity documents fraudulently. The representative submitted that upon such a discovery, the applicant will be at risk of a forced disappearance or being killed in detention.
The representative submitted that all scenarios and factors place the applicant at grave risk by either Al-Shabaab in Somalia or militant groups in Kenya.
Claims against [Country 1]
The representative submitted that the applicant cannot live in [Country 1] as his life will be at risk. The representative submitted based on country information that refugees, asylum seekers and migrants are targeted in [Country 1] and the government is not doing anything to stop xenophobic violence.
The Tribunal had invited the Representative to present a post-hearing submission addressing the issues raised during the hearing.
Summarised from the applicant’s representative’s post-hearing submissions dated 21 March 2021
The representative provided post-hearing submissions on the following matters:
· The current situation of people of Somali ethnicity living in [Country 1];
· Whether the applicant has a right of return and residence in [Country 1] as a Somali citizen or Kenyan permanent resident despite being absent from the country for over eight years;
· Whether [Country 1] might accept and then return (refoule) the applicant to Somalia or Kenya; and
· COVID-19 pandemic travel restrictions.
Current situation of people of Somali ethnicity living in [Country 1]
The representative submitted based on a variety of sources of country information that people of Somali ethnicity in [Country 1] face discrimination and abuse and there is a long history of xenophobic and racial violence. The representative also submitted based on country information that this violence occurs without warning or with slight provocation. The representative further submitted based on country information that rioting has been targeted at foreigner-owned businesses. The representative submitted that the applicant will be at a particular risk and more visible compared to the rest of the Somali community due to his occupational experience.
The representative submitted based on country information that over 80 percent of [Country 1] nationals are Christians and approximately 1.6 percent are Muslims, and that in contrast, around 99.9 percent of people of Somali ethnicity are Muslim. The representative further submitted based on country information that there is an anti-Muslim sentiment in [Country 1] which leads to discrimination, violence and attacks on mosques by pro-Christians.
The applicant’s right of return and residence in [Country 1]
The applicant’s representative submits that the applicant is a [Country 1] permanent resident under the name [Alias 2] only and that he only has the right to return and reside in [Country 1] under this identity. The applicant’s representative further submits that the applicant does not have the right to return and reside in [Country 1] as [applicant name], which he purports is his true identity. The applicant’s representative further submits that this means that any right to return and reside in [Country 1] would be those conferred on a Somali national or Kenyan permanent resident.
The applicant’s representative submits that entrants to [Country 1] must have a valid visa prior to arrival and that airline officials have been advised by the [Country 1] government to prevent passengers who do not hold valid visas from boarding. The applicant’s representative submits that this applies to Kenyan permanent residents.
The applicant’s representative submitted based on country information that even if [Country 1] recognises the applicant as a [Country 1] permanent resident under the name [Alias 2], permanent residents who have been outside the country for over three years may be subject to the revocation of their status by the [Country 1] Department of Home Affairs. The applicant’s representative submitted that the applicant has been outside [Country 1] for over eight years and has not informed the [Country 1] Department of Home Affairs of his absence or the reasons for it, and on that basis, it is plausible that the applicant’s permanent residency status has been revoked.
Risk of refoulement by [Country 1] to Somalia or Kenya
100. The applicant’s representative submitted that due to the applicant’s dubious migration status in [Country 1], there is a significant risk that he will be refouled to a third country. The applicant’s representative submitted based on country information that in late 2019 to early 2020, the [Country 1] government moved to revise laws affecting the rights of refugees and asylum seekers in the country. In this respect, the applicant’s representative cited country information from the Freedom House.
101. The applicant’s representative further submitted based on an article published by [a law firm] in [Country 1] that there are abuses of strict regulations affecting asylum seekers, including refoulement if they fail to apply for asylum within 14 days of arrival in [Country 1].
COVID-19 Pandemic
102. The applicant’s representative submitted that there is currently a ban on overseas travel in Australia due to the COVID-19 pandemic. The applicant’s representative further submitted that the nature of the COVID-19 pandemic in [Country 1] is particularly serious, noting that the rates of infections and deaths are very high and that the country has seen the emergence of a different variant, which experts believe to be more contagious and existing vaccines are ineffective against.
Evidence:
103. The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application forms completed and lodged on 17 February 2014 (“visa application”);
·The applicant’s identity documents being a copy of his Somali birth certificate, Somali certificate of identity, Somali certificate of nationality, Somali national identity card, Somali driver licence, Somali intermediate school certificate, Kenyan passport, passport photographs, adult proof of age card, Australian driver licence and Medicare card;
·The protection visa decision record dated 4 December 2017 (“delegate’s decision record”);
·The review application form, which included a copy of the delegate’s decision record;
·All documents submitted to the Department of Immigration and Border Protection (“the Department”) in support of the applicant’s protection visa application, including a statutory declaration of the applicant sworn on 12 February 2014; a statement of the applicant dated 2 May 2014; written submissions from the representative dated 21 January 2015; a statutory declaration of the applicant sworn on 14 November 2017; family photographs; passports of his family members; support letters; a medical letter from [a] Clinic; letters from an employer and accountant; and a company registration certificate;
·All documents submitted to the Tribunal in support of the applicant’s application for review, including his marriage certificate; the passport and statutory declaration of [Mr D] sworn on 1 May 2021; the passport and statutory declaration of [Mr E] sworn on 28 April 2021; the applicant’s Somali passport; written submissions made by the representative dated 23 March 2018; and post-hearing submissions made by the representative dated 21 March 2021; and
·Country information from the United Kingdom Home Office’s most recent Country Background Note on Kenya, published in May 2020 (“the United Kingdom Home Office’s Report on Kenya”).
Country of reference / receiving country:
104. The applicant claims to be a citizen of Somalia. Based on evidence provided to the Department by the applicant, the Tribunal finds Somalia may be the country in which the applicant was born, but that Kenya is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
105. The applicant is also a permanent resident of [Country 1].
Hearing:
106. The applicant appeared before the Tribunal on 13 May 2021 to give evidence and present arguments at a hearing, which was conducted in-person. The Tribunal also received oral evidence from [Mr E]. The Tribunal was to receive oral evidence from [Mr D] but he did not respond to telephone calls during the hearing. He was accompanied and represented by his representative, who also appeared in-person. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.
107. 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.
108. 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 face serious harm if he 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.
109. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Kenya.
Section 438 Certificate
110. A preliminary issue which arose for consideration in this matter is the effect of two certificates on Department files [Number 1] and [Number 2] purporting to restrict the disclosure of information pursuant to s.438 of the Act.
111. The certificate on Department file [Number 1] states that the disclosure of the material contained in folios 40, 50, 64-65, 143-145, 188-193 and 203-204 would be contrary to the public interest, because it contains information concerning how the Department identifies and responds to visa and identity fraud.
112. The certificate on Department file [Number 2] states that the disclosure of the material contained in folios 71-74 and 76-78 would be contrary to the public interest, because it concerns how the Department identifies and responds to visa and identity fraud.
113. 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.
114. The Tribunal considered the validity of the Certificate. It determined that to declare the Certificate invalid would have the effect to deter people coming forward to the Department with confidential information. It would also have the effect of revealing confidential investigative methods. Accordingly, it held the certificate to be valid.
115. The Tribunal also discussed with the applicant and the representative that the information contained in the folios referenced above had been discussed with the applicant during departmental interviews and written notifications requesting responses.
116. 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:
117. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
118. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
119. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
120. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
121. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
123. At the commencement of the hearing, the Tribunal noted that the applicant had listed two witnesses to be heard. Upon enquiry, it was advised that the applicant and the Representative had been unable to make contact with one of the witnesses.
124. Accordingly, the Tribunal took evidence from the witness, [Mr E].
125. [Mr E] stated that he knew the applicant when they lived in Somalia. He stated that he believed that the applicant was born in Somalia. [Mr E] also stated that he attended school with the applicant’s older brother. He also stated that his father and the applicant’s father were friends.
126. He attested to the applicant’s ethnicity. He also stated that the claimed name of the applicant was correct. He also stated that the applicant’s older brother told him that the applicant is not a Kenyan citizen. Upon enquiry, the witness claims he was told that in 2013.
127. [Mr E] had also provided a witness statement which was consistent with his oral evidence. His statement added that he had seen the applicant grow up. He also stated that he ([Mr E]) had fled Somalia after the civil war and had come to Australia in 1996.
128. [Mr E] also stated that when he had heard that the applicant had come to Australia, he made contact with him in Brisbane and offered for the applicant to stay with him in Darwin where he was living. He also stated that the applicant could not remember him, only his family and siblings, as the applicant was much younger than him when they lived in Somalia.
129. The other intended witness had provided a witness statement prior to the hearing.
130. He too claimed that his family were neighbours and good friends of the applicant’s family.
131. In his statement, he states that he remembers the applicant as a child of 10 years old. He stated that the applicant’s family had fled their village after the civil war and moved to, and lived near, the witness’ family. The witness also stated that his cousin married the applicant’s brother and that they were now living in [Country 6].
132. The witness stated in his statement that he had caught up with the applicant in Melbourne in 2017.
133. The Tribunal noted that the Interpreter was speaking to the applicant in Somali.
134. The Tribunal also noted the Delegate’s findings as to the applicant’s ethnicity.
135. The Tribunal advised the applicant and the Representative that it accepted that the applicant was born in Somalia and had lived there for a time prior to relocating to Kenya.
136. The Tribunal also advised that for the purposes of the hearing, it was prepared to accept the applicant’s identity as claimed on his Protection Visa Application.
137. Further, the Tribunal advised that it understood that many people upon relocation might assume a new identity and could obtain new identity documentation and citizenship with that new and assumed identity.
138. The Tribunal then went on to explain to the applicant and the Representative how it proposed to proceed with the hearing.
139. It advised the applicant and the Representative that it had identified two important issues, being what it called the section 91WA issue and a second issue, being what it called the section 36(3) issue.
140. In relation to the former issue, the Tribunal advised that upon the evidence before it, there appeared to have been use by the applicant of bogus documents as evidence of his identity, nationality or citizenship.
141. The Tribunal advised that it was incumbent upon it to explore that evidence and to examine whether the applicant may have a reasonable explanation for him having provided such bogus documentation.
142. In relation to the second issue, the Tribunal explained to the applicant and the Representative that it had to consider whether or not the applicant had a presently existing right to enter and reside in another country, being either Kenya or [Country 1], and that if he did, then he may be excluded from Australia’s protection obligations and that he would be unable to obtain a Protection Visa.
143. The Tribunal explained to the applicant and the Representative that there were many steps involved in the consideration of the application of section 36(3), including considerations such as whether, subject to the Tribunal’s findings, [Country 1] would return the applicant to Kenya or whether Kenya would return the applicant to Somalia.
144. The Tribunal discussed with the applicant and the Representative that it was likely to consider the section 91WA issue and the section 36(3) issue and would then adjourn the hearing to deliberate on those two issues. It advised that if the Tribunal was then able to find that neither section 91WA nor section 36(3) applied, then it would reconvene the hearing to consider the applicant’s substantive claims.
145. In relation to the applicant’s claims, the Tribunal noted the multiple sources of those claims, including claims made in his Protection Visa Application, claims made in his former Representative’s written submissions dated 21 January 2015, claims made during the applicant’s Protection Visa interviews with the Department which were conducted on 3 February 2015 and 18 February 2015 and the claims as summarised in the Representative’s submission dated 23 March 2018.
146. The Representative stated that the claims made in her submission dated 23 March 2018 had been prepared upon the instructions of the applicant, had been read to the applicant and signed by the applicant.
147. The applicant agreed that the claims set out in his Representative’s submission dated 23 March 2018 were accurate and complete.
148. The Tribunal discussed generally the documents in evidence relating to the applicant’s identity. It noted the claims made in relation to his identity in the Protection Visa application, the applicant’s claims as to how he arrived in Australia, the outcome of the Department’s investigations as to how he actually arrived in Australia, the Kenyan passports that the applicant claimed to have and was subsequently found to have, and the identity document examinations and their outcomes which found that the Kenyan passport under which the applicant travelled to Australia had been found to be genuinely issued and the Somali Birth Certificate which the applicant had produced as evidence of his Somalian identity was found to be fabricated and that a Somali international driver’s licence also produced by the applicant was also likely to have been fabricated.
149. The Tribunal explored with the applicant and the Representative the possibility that there may be facts upon which there might be agreement. The first such issue was whether the applicant accepted that the Birth Certificate and driver’s licence he had presented were bogus documents as determined by the Department’s Forensic Document Examiner. The Tribunal asked the applicant whether he was maintaining that the Birth Certificate and driver’s licence were in fact genuine.
150. The applicant replied that he does not have the knowledge of the government and therefore does not really know whether the documents are genuine.
151. The Tribunal asked the applicant why he had presented a Birth Certificate and driver’s licence which were found to be bogus as evidence of his identity, especially in circumstances where he had knowingly, and would later claim, that he had travelled to Australia on a passport that was not genuinely issued.
152. The applicant responded that he believed the Birth Certificate was genuine.
153. The Tribunal asked the applicant how he had obtained it. He replied that he had asked his mother to obtain it for him, which she did in 2010. He assumed his mother had got it the correct way.
154. The Tribunal noted that some time after making his Protection Visa application, he presented a laminated card purporting to be an international driver’s licence issued by the Somali Ministry of Transport. Asked why he had presented that driver’s licence, the applicant replied that when the Department asked him whether he had any other identification with a photograph on it, he realised that he had a driver’s licence with a photograph on it and asked his family to send it to him. He claims that the family sent it to him, possibly some time in 2014.
155. The Tribunal asked the applicant why he did not have his driver’s licence with him, given that it was an international driver’s licence and he had travelled through Kenya, [Country 1] and then Australia. The Tribunal noted that he had carried his Birth Certificate with him since 2010.
156. The applicant replied that he did not need his Somali driver’s licence as he had a Kenyan driver’s licence.
157. The Tribunal asked the applicant when he had commenced using the alleged fake Kenyan passport. He replied around 2007.
158. The Tribunal noted that the applicant claims to have been sent to Kenya in 2005, noting that he would have been [age] years old at the time.
159. The applicant advised that he had been driving a [vehicle] in Somalia from about the age of [age]. He claimed that when he left Somalia, he took nothing with him.
160. The Tribunal asked the applicant why he had obtained a Kenyan passport in 2007. He replied that in about late 2006, he had decided to go to [Country 1] and needed a passport to do that. He said he went to an agent to get a passport.
161. The Tribunal asked the applicant why his passport bore the name that it did. He replied that the agent picked up on his nickname of [Alias 2, first given name] and then made up the rest of his name.
162. The Tribunal noted the various accounts given by the applicant during his interviews with the Delegate and recorded in the delegate’s decision as to how the Kenyan passport came to bear the name that it did, noting the inconsistencies provided.
163. The applicant then stated that he went to [Country 1] in late 2006 and lived a life in [Country 1] under the name of [Alias 2, short form].
164. The Tribunal asked the applicant about his permanent residency in [Country 1]. The applicant replied that he got permanent residency in 2009.
165. The Tribunal then asked the applicant why he moved to Australia. The applicant replied that he decided to move to Australia in 2013.
166. The Tribunal asked the applicant about his immediate family. The applicant replied that he was married in Somalia and had two children when he was in Somalia. His wife and two children moved to Kenya with him. He stated that he and his wife had two more children in [Country 1].
167. The Tribunal asked the applicant how his wife had got to [Country 1]. He replied that after he had obtained permanent residency, he applied for his wife to come to [Country 1] as his partner.
168. The Tribunal asked the applicant whether he remained married. He replied that they were divorced in 2016.
169. The Tribunal noted the Marriage Certificate that had been presented to the Tribunal which was dated in 2020. The applicant confirmed that he had remarried.
170. The Tribunal noted that the Marriage Certificate stated that he had “never validly married”. The Tribunal suggested to the applicant that that was not accurate given that he had been married and divorced. He replied that the Celebrant had told him that a marriage and divorce overseas was not relevant. He went on to add that his first marriage was a Somalian traditional Muslim marriage and divorce.
171. The Tribunal paused to summarise what it knew about the applicant. It appeared that the applicant was of Somali ethnicity, it appeared that the applicant had a genuinely issued Kenyan passport which the applicant now claimed was not genuinely issued and that the applicant had been a permanent resident of [Country 1] since 2009.
172. The Tribunal considered the applicant’s permanent residency in [Country 1].
173. It asked the applicant why he could not return to [Country 1]. He replied that if he returns to [Country 1], [Country 1] will return him to Kenya. Asked why that would be, he replied that the [Country 1] government will now check on his Kenyan passport.
174. The Tribunal noted that the applicant had lived in [Country 1] for six to seven years without any issue as to the validity of his entitlement to be in [Country 1]. Furthermore, the applicant had travelled back to Kenya on three occasions using his Kenyan passport, again without any issues. The Tribunal noted that there had been no reason for the [Country 1] government to check on his passports or residency each time he returned to [Country 1]. The applicant replied that he was just lucky not to have been audited.
175. The Tribunal persevered with this issue, asking the applicant again why he would be audited. He replied that there is a risk that he is not who he says he is. He stated that countries may share information and that lots of people have been returned from [Country 1].
176. He then went on to add that Somalians in particular are targeted.
177. The Tribunal asked the applicant why he left [Country 1]. He replied that after seeing people being killed in front of him, he decided to leave and said he needed to leave and to get the children out of [Country 1].
178. The Tribunal asked the applicant where his first wife and four children were. He replied that they were now back in Somalia.
179. Asked again why he left [Country 1], he replied that he felt that [Country 1] was an unsafe place. He said that the authorities were difficult and intimidating.
180. Asked what he did in [Country 1], he replied that he had a little shop.
181. The Tribunal asked the applicant what he feared in [Country 1]. He replied that some of his friends have been killed and that shop owners are targeted. The applicant confirmed that he resided in [City 1, Country 1].
182. The Tribunal noted that [City 1] has a credible Police Force, able to process complaints that he might make. The applicant replied that every policeman is corrupt.
183. The Tribunal noted from Country Information that there can be generalised violence in [Country 1]. It advised the applicant that generalised violence in a country was generally not sufficient to sustain a claim for protection. It asked the applicant whether there was any particular reason why he, the applicant, would feel unsafe in [Country 1]. He replied that he does not trust other businesspeople. He said that some businesses attack other businesses. He added that he was not living in a compound.
184. The Tribunal considered the s.36(3) issue.
Does the applicant have the right to enter and reside in [Country 1]?
185. The Tribunal explained to the applicant that it had to consider whether or not he has a presently existing right to enter and reside in a third country, being [Country 1] and/or Kenya, within the meaning of s.36(3), and that if he did, then he may be excluded from Australia’s protection obligations, unless the Tribunal was satisfied that he has a well-founded fear of persecution in that country or that there are substantial grounds to believe there is a real risk he would suffer significant harm in that country, or that he has a well-founded fear of being removed from that [Country 1] to Kenya or Kenya to Somalia.
There is no requirement under s 36(3) that moving to the third country for protection be reasonable or practicable, only that they have a present right to enter and reside and have taken all possible steps to avail him/herself of a right to enter or reside. In considering ‘all possible steps’, that should not be read down and should not be construed as all ‘reasonably practicable’ steps. The Tribunal must be satisfied there is at least one possible step the applicant could have taken. The right referred to must be a presently existing right that is available at the time of decision, not a right that could be acquired at that time.
187. Section 36(3) provides that:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
188. Section 36(3) requires a right to enter and reside in another country; that right may be temporary or permanent, and there is no restriction on the manner in which the right arises or is expressed. The section does not refer to, or presuppose, a legally enforceable right under domestic law. The issue was considered by the Full Federal Court in MIAC v SZRHU, where the Court held that it is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[3] The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant “and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise.”[4] The right referred to in s.36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy.
[3] MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013).
[4] V856/00A v MIMA (2001) 114 FCR 408 per Allsop J (at [31]), cited in MIMAC v SZRHU [2013] FCAFC 91 (Tracey, Buchanan, Flick, Robertson and Griffiths JJ, 14 August 2013) per Buchanan J at [45]. Justice Buchanan (at [89]), all other members of the Court agreeing, endorsed this construction by Allsop J.
189. The Tribunal considered the applicant’s permanent residency in [Country 1] first.
190. The Tribunal is satisfied that the applicant has permanent residency entitling him to return to [Country 1]. Accordingly, he has a presently existing right to enter and reside in [Country 1].
191. He has not attempted to return to [Country 1]. Accordingly, he has not availed himself of his right to return to [Country 1].
Will [Country 1] return (refoule) the applicant to Kenya?
192. If the Tribunal finds that s.36(3) applies, in addition to s.36(4), the Tribunal must also consider s.36(5) and (5A), which provide that:
36(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
36(5A)Also, subsection (3) does not apply in relation to a country if:
(a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
193. The Tribunal considered the Representative’s post-hearing submission.
194. In doing so, it also considered the terms of issue of permanent residency in [Country 1].
195. The Representative submitted that permanent residents who have been outside the country for over three years may be subject to the revocation of their status by the [Country 1] Department of Home Affairs. The Representative submitted that the applicant has been outside [Country 1] for over eight years and has not informed the [Country 1] Department of Home Affairs of his absence or the reasons for it, and on that basis, it is plausible that the applicant’s permanent residency status has been revoked.
196. The Tribunal does not accept that that applicant’s permanent residency has been revoked and there is no evidence of any process by which the permanent residency has been revoked as the applicant has not returned to [Country 1].
197. The Country Information and terms of the Permanent Residency refer to the fact that permanent residency “may” be revoked. The Tribunal anticipates a process by which that may occur. However, it is persuaded that in the circumstances of the applicant having been abroad for eight years as submitted, then that is a real risk. It is satisfied that that applicant has a well-founded fear that [Country 1] may return him to Kenya.
198. The Tribunal notes that the Representative has not offered any submissions in relation to the applicants right to enter and reside in Kenya or submissions as to how or why the applicant might be returned by Kenya to Somalia.
199. The Tribunal has put that issue to one side for the moment.
Is the grant of the visa prevented by s.91WA?
ASSESSMENT - CIRCUMSTANCES PREVENTING THE GRANT OF THE VISA
200. 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.
201. 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. 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.
202. The provisions of s.91WA of the Act were introduced into the Act with effect from 18 April 2015 and apply to all protection visa applications made on or after this date and any protection visa applications made before but not finally determined as at this date, which includes this application.
203. Did the applicant provide, or cause to be provided, a bogus document as evidence of his identity?
204. This is a matter of unusual complexity.
205. The applicant claims to have entered Australia having left from Somalia on [Date 1] December 2013, via [Country 2] on a Somali passport. However, Departmental investigations revealed that he had entered Australia on [Date 3] December 2013 as the holder of a visitor visa issued against a Kenyan passport, and had in fact entered Australia in this way on a previous occasion ([August] 2012 to [September] 2012) and that he held a [Country 1] permanent residency permit.
206. When confronted with these facts, the applicant accepted that he had entered Australia using a Kenyan passport, which he then proceeded to claim was bogus.
207. The applicant appears to want to concede that he had actually provided bogus documents in applying for the visitor visa to come into Australia initially.
208. When he applied for his protection visa on 17 February 2014, he provided a certified copy of a Somali birth certificate. He later provided a laminated card purporting to be an international driver’s licence issued by the Somali Ministry of Transport.
209. The birth certificate provided was subsequently found by a departmental forensic document examiner to be counterfeit.
210. The driver’s licence was also found to have no manufacture, issuing or security features present in the document and to have been printed on an ink-jet printer which was considered to be an expensive and uncommon method to create mass-produced government documents.
211. 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.
212. The Tribunal is satisfied that the applicant had used the Kenyan passport in the name of [Alias 2] to enter Australia on [Date 3] December 2013, and had also used that passport to previously enter Australia in August of 2012. It is satisfied that the applicant used that passport as evidence of his identity.
213. At the delegate interview, and at this hearing, the applicant claims that that Kenyan passport was fraudulently obtained.
214. The Tribunal has noted the evidence provided by the applicant to the delegate as to the circumstances by which he came to have accessed this passport as recorded in the delegate’s decision. The Tribunal has noted the inconsistencies in the applicant’s evidence as recorded in the delegate’s decision. The Tribunal notes the applicant’s evidence to the Tribunal that he paid an agent for the passport. It further notes the applicant’s evidence that the agent picked up on his nickname of [Alias 2, first given name] and then the agent made up the rest of his name. The Tribunal again noted that this explanation was inconsistent with the explanation provided to the delegate at the second interview, and when asked to explain the inconsistency, stated that he was young and that his parents arranged his travel, notwithstanding the fact that he was [age] years of age.
215. The birth certificate used by the applicant as proof of his identity at the time of making his protection visa application was determined to be counterfeit.
216. The applicant, in his response to the delegate on 14 November 2017, acknowledged that the documents issued by Somali authorities are not considered verifiable or legitimate by other governments.
217. Country information obtained from the DFAT Report on Somalia indicates that it is easy for ethnic Somalis who hold citizenship from a country other than Somalia to fraudulently obtain genuine Somali identity documents through bribery, networks or connections. As discussed by the delegate, and confirmed in the DFAT Report, this is the reason why the department does not formally recognise any documentation issued by Somali authorities.
218. The Tribunal has considered documents subsequently submitted by the applicant. They do not reference his birth certificate, and are a series of statements and certificates by elders and Consulate officials that attest to his being born in Somalia but do not comment on the validity of his identity documents provided by him to the department or his citizenship. The Tribunal, again whilst giving those statements and certificates some weight as to the ethnicity of the applicant, they do not outweigh the forensic findings of the department as to the fact his birth certificate, and likely his driver’s licence, are counterfeit.
219. The Tribunal finds that the birth certificate and driver’s licence which were provided, or caused to be provided, to the Department by the applicant purports to have been, but were not, issued in respect of the applicant as contemplated by paragraph (a) of the definition of “bogus document”, and that such documents are “bogus documents” for the purposes of that definition in section 5(1) of the Act.
220. Does the applicant have a reasonable explanation for providing the bogus documents?
221. 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.
222. The applicant provided a number of explanations at the hearing as to which identity he used when and for what purposes. He claims though that the name used in his protection visa application is his true identity.
223. The Tribunal noted and has taken into account that the applicant made his protection visa application in his Somalian name. He maintained the claim of his true identity before the delegate during his interview. He has been consistent in that claim during this hearing.
224. His witness has spoken to the applicant’s Somalian identity.
225. He has a witness statement from a second witness attesting to his Somali ethnicity.
226. But the documents provided as proof of that identity are bogus.
227. When asked specifically for an explanation as to why he used a false passport and identity to enter Australia, the applicant has offered multiple explanations as to the passports he had acquired and used that got him from Kenya to [Country 1] and then to Australia.
228. When asked specifically for an explanation as to why he used a fake birth certificate as proof of his identity when making his protection visa application he has offered statements that he believed them genuine and that his mother obtained his birth certificate for him and believed she had “done it the right way”.
229. When asked specifically for an explanation as to why he used a fake driver’s licence as proof of his identity when making his protection visa application he has offered statements that he thought he had to provide identification with a photo on it, and he recalled that he had a driver’s licence back in Somalia with a photo on it. When asked whether he had completed a driving test to obtain the licence, he replied that he didn’t, but that he got his licence the way everyone got everything in Somalia, by paying someone for it.
230. The Tribunal made it clear to the applicant from the commencement of the hearing that on the strength of the various explanations as to his identity, and passport acquisitions, made to the delegate, that his credibility was in issue.
231. At the time of his attaining the birth certificate from his mother in 2010, the applicant was living as a permanent resident in [Country 1]. He had a Kenyan passport and Kenyan identity which he freely admits to using and which he did use to obtain his [Country 1] residency. He was not yet considering traveling beyond [Country 1], which it is claimed he started to consider in 2013. The Tribunal could not find a plausible explanation as to why he attained a birth certificate in 2010 and then carried it around with him from 2010. When asked why he didn’t carry his Somalian international driver’s licence around with him, he replied that he didn’t need it as he had a Kenyan one.
232. The applicant admitted to the delegate that his protection claims made in his protection visa application were fabricated.
233. According to policy, if a document provided by the applicant in support of their protection visa application is not genuine, the decision maker must also assess whether they have a reasonable explanation for providing a bogus document [PAM3 – Refugee and Humanitarian – the Protection Visa Processing Guidelines -4.71.3]. The term “reasonable explanation” is not interpreted by the legislation or the regulation, and therefore the ordinary and general meaning of the term “reasonable explanation” applies.
234. The policy refers to various examples, such as difficulties in obtaining documents due to circumstances beyond the control of the applicant, like warfare, a collapse of government, or refusal by the relevant government authorities as the result of persecution. It could also be caused by personal circumstances such as statelessness [PAM3 – Refugee and Humanitarian – the Protection Visa Processing Guidelines -4.71.3].
235. The Tribunal has considered country information relating to Somalia and noted the fact of the civil war, the reason claimed by the applicant for his fleeing to Kenya in 2006. However, the applicant has not sought to explain the acquisition of the counterfeit birth certificate by his mother in 2010 in this way.
236. The Tribunal is satisfied that the applicant has knowingly presented a fake birth certificate, and then subsequently a fake driver’s licence, in support of his identity which in turn supported an entirely fabricated story as to how he arrived in Australia (after having used a Somalian passport to arrive via [Country 2]) and a fabricated set of claims.
237. The Tribunal is satisfied that the applicant has no reasonable explanation as to why he provided bogus documents, including a counterfeit birth certificate and driver’s licence, as evidence of his identity.
CONCLUSION
238. The Tribunal is satisfied that the applicant has presented a bogus Somalian birth certificate and international driver’s licence as evidence of his identity. The Tribunal is not satisfied that the applicant has a reasonable explanation for providing the bogus documents to the Department.
239. 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
240. The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins AM
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly
…
91WAProviding bogus documents or destroying identity documents
(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii)has caused such documentary evidence to be destroyed or disposed of.
(2)Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i)provides documentary evidence of his or her identity, nationality or citizenship; or
(ii)has taken reasonable steps to provide such evidence.
(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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Natural Justice
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