1819618 (Refugee)

1819618 (Refugee) [2022] AATA 5083 (1 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Noel Reeves
CASE NUMBER:  1819618
COUNTRY OF REFERENCE:                   Cameroon
MEMBER:Wayne Pennell
DATE:1 December 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 01 December 2022 at 10:12am
CATCHWORDS
REFUGEE – protection visa – Cameroon – social group – journalist – accused of being a secessionist – arrested – tortured – summons to attend Military Court – default judgment in absentia – sentenced to 15 years imprisonment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Home Affairs (the delegate) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]The delegate’s decision was provided to the applicant on 15/06/2018.
The applicant who claims to be a citizen of Cameroon, applied for a protection visa.[2] The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[5] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Cameroon, there was a real risk he would suffer significant harm and he was not a person in respect of whom Australia has protection obligations as defined in the Act.[6]
[2]The applicants’ application was received by the Department of Home Affairs on 04/05/2018.
[3]The delegate’s refusal was made on 15/06/2018.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a).
[6]Migration Act 1958 (Cth), s 36(2)(aa).
The applicant was represented, and he filed an application with the Tribunal for a review of the delegate’s decision.[7] Accompanying that application was a copy of the delegate’s decision. At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone.[8]
[7]The applicants’ application was filed on 05/07/2018.
[8]The Tribunal advised the applicants on 20/09/2022.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[9]He subsequently advised the Tribunal that he would appear at the review hearing to give oral evidence and present arguments.
[9]The Tribunal’s review hearing was listed for 20/10/2022.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of the Migration Act 1958 (Cth) (the Act) and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] 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.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[12] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[14] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[17] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]
[19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
Country of reference and Applicant’s identity
The applicant claims to be a citizen of Cameroon and he provided a copy of his passport to authenticate this claim. The applicant’s passport had been issued in Cameroon and the Tribunal accepts the applicant’s identity.[21] Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Cameroon is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]Passport issued [in] 2016.
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
Mandatory considerations
In accordance with Ministerial Direction No. 84 made under the Act,[24] 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[24]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Cameroon, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether his is a person in respect to whom Australia has protection obligations as defined in the Act.[25]
[25]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces 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 the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]
[26]Migration Act 1958 (Cth), s 5AAA.
[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Applicant’s claims AND THE EVIDENCE
The applicant’s claims that he fled Cameroon as he was afraid of experiencing threats and the inhuman treatment from the Cameroonian government because the government believes that he works as a journalist for the secessionist [Organisation 1].
By way of a background to the applicant’s circumstances, in 2017 he was a professional journalist working for [a] company, [Organisation 2] in Cameroon. As a journalist, the applicant’s role was to [deleted]. Because of his experience as a [journalist], in May 2017 he was chosen by his employer to [work in Australia]. Subsequently, he was issued with a temporary [visa] allowing him to travel to Australia for [work].[28]
[28]On 16/11/2017.
On 9 February 2018, the applicant’s employer assigned him the responsibility of [working] in Bamenda, Cameroon. The [job task was assignedfor] 12 February 2018. On 10 February 2018, he travelled to Bamenda, arriving there in the afternoon. He booked into a hotel and contacted his employer to advise them of his arrival. Because his partner’s family lived Bali, which is situated near Bamenda, he took the opportunity to visit them while he was in the area. On 11 February 2018, he travelled to Bali and went to the house belonging to his partner’s parents. He discovered that his partner’s father was not at home as he had travelled to Batibo for work. As the applicant could not leave without seeing his partner’s father, he contacted him, and they arranged to meet in Batibo.
When the applicant arrived in Batibo to meet his partner’s father he was aware that Batibo’s inhabitants were preparing for the launch of the National Youth Day ceremony. He saw a crowd had gathered which consisted of students, sportsmen, groups of political parties and others in the crowd. He considered that the atmosphere was friendly, and people were awaiting the start of the ceremony. His journalistic instincts took over and he started taking photographs to memorialise the event.
The applicant then heard gunshots in the distance and there was panic and chaos amongst the people. He lost track of his partner’s father and knowing that the Anglophone secessionists had already committed several attacks in that part of Cameroon, he kept taking photographs hoping to document what he suspected was another secessionist attack. As he was running and taking the photographs, he was grabbed by an armed soldier who accused him of being an accomplice to the secessionists and working for [Organisation 1]. He was then beaten, handcuffed and thrown to the ground with other people who had also been apprehended. Looking around at that time, he could see some injured people and a deceased soldier.
The applicant claimed that what followed was horrific for him. He was taken to the police station in Bamenda where he was locked in a cell overnight. The following day,[29] he and other prisoners were transferred to Yaoundé . He was scared; all his belongings including his camera and phone were taken from him and he did not have the opportunity to contact anyone for assistance or to let them know what had happened. When he arrived in Yaoundé he was held in a cell with others who had also been arrested in Batibo.
[29]On 12/02/2018.
The applicant claimed the conditions within the cell where he was held were horrible. He described the cell as being less than five metres by five meters in size with no natural light, just a small opening in the door. There was no running water and no toilet facilities, with the prisoners being required to urinate and defecate on the floor, the same floor they slept on because there were no beds.
The applicant claimed he was held in custody for eight days. During that time, he and the other prisoners were deprived of food, they were tortured and beaten by the police officers who tried to force a confession out of them that they (the applicant and the other prisoners) were aligned with the Ambazonia secessionists. On occasions, the police used the flat part of a machete blade as a weapon against the applicant and the other prisoners. The applicant was forced to sit on the floor of the cell put his feet in the air, and the police then hit his bare feet multiple times with the flat part of the machete blade. This all occurred despite the applicant telling the police that he did not work for [Organisation 1], and his employer, [Organisation 2] was a separate [company].
The applicant believes that when his employer failed to receive his [work], enquires were made to locate him and his employer discovered that he was in police custody. His employer’s lawyer came to see him at the police station, and he was allowed to leave his cell to speak with the lawyer. Shortly afterwards, the applicant was transferred to a hospital for treatment of the injuries he had received to his feet and legs when he was tortured. He was also suffering mentally.[30] When taken to the hospital and admitted for treatment, he was under police guard, although he was not physically restrained in any way.
[30]On 20/02/2018.
Whilst in hospital,[31] the applicant was served with a summons where he was to appear in the Military Court at Yaoundé [in] April 2018. A copy of that summons was provided to the Tribunal and the Tribunal accepts that it was a summons issued to the applicant for him to attend the Military Court.
[31]On 16/03/2018.
Worried about his own situation, he was aware that other members of the [industry] had previously been imprisoned and killed in Cameroon. Added to those concerns was a view expressed to him by his lawyer that if he did not receive a fair trial, he would get the death penalty. A little over a week later, the applicant’s guard at the hospital was distracted and left him alone. Seizing upon the opportunity, he left the hospital.[32] Because he was afraid to return to his own home, he travelled by taxi to a friend’s house where he stayed for about a week. Over that time, he was in communication with his partner. After about a week, she arrived and collected him.[33] She had with her a small bag of clothes and the applicant’s passport and plane tickets to Australia. He was then driven to the airport at Yaoundé where he boarded a plane and via a connecting flight, he flew into Australia, arriving at the Brisbane International Airport.
[32]On 25/03/2018.
[33]On 02/04/2018.
The applicant explained that his family members consisted of his mother and [siblings] and since arriving in Australia he has only had contact with his younger brother via email. Notwithstanding his partner giving birth to their child, he is no longer in a relationship her and she has surrendered custody of their child to his mother. His family have now settled in the Littoral region of Cameroon. Before that, they constantly moved from one place to another. Those moves were necessary because of an incident in September 2018 when his family were intimidated and attacked by unidentified men who broke into his family’s home in Yaoundé. They were demanding to know the applicant’s whereabouts. They assaulted his mother and another family member, ransacked the family home and told his mother that if he (the applicant) was not arrested soon, they would pay her a return visit. Because of what these men did, the applicant’s mother complained to the local justice of the peace. She made a statement about the incident, and a copy of that statement was provided to the Tribunal.[34] The Tribunal accepts that the statement provided to the Tribunal is a copy of his mother’s statement, of which the contents corroborate his testimony.
[34]Attached to the applicant’s statutory declaration filed 12/04/2022.
The applicant claims that because he is a person of interest in Cameroon and is a wanted person, his family have continually had to move from village to village. His family do not feel safe anywhere in Cameroon. Although he has fallen out of contact with his partner, he has learnt that because of him, she and her mother are also moving around the country in order to avoid persecution. He further claims that besides all that, there is also the Anglophone crisis, the post presidential election and the tribal conflicts which all have been intensifying and this also contributes to the families moving to other locations.
Subsequent to his arrival in Australia, he was provided with a default judgment from the Military Court at Yaoundé of a trial heard in his absence (in absentia). The applicant provided that default judgment to the Tribunal.[35] Also provided was a photograph of a courier consignment note dated 14 October 2020 from the courier company, Trans National Transport. The applicant’s testimony was that the consignment note related to when a copy of the default judgment of the Military Court was sent to him by a friend in Cameroon. The Tribunal notes that contained with the default judgment of the Military Court was a specific reference to the applicant’s father and mother and that he (the applicant) was a defendant who was at large. Also referenced was a finding that the applicant went to Batibo in the northwest region of Cameroon on 11 February 2018 and made himself complicit in hostility against the ‘fatherland’. The judgment goes on to find that the applicant was complicit in secessions, propagation of false news, insurrection, incitation to civil war and terrorism and that those acts were stipulated and prohibited by Articles 74, 97, 111, 112, 113 and 116 of the Cameroon Penal Code. Because he did not appear, the Military Court considered it necessary to render default judgment against the applicant and found him guilty of the charges just described and sentenced him in absentia to 15 years imprisonment. He was also fined 300,000 francs and a warrant issued for his arrest. The Tribunal accepts that the document produced at the review hearing relates to the applicant’s case before the Military Court at Yaoundé.
[35]Attached to the applicant’s statutory declaration filed 12/04/2022.

In commenting on the default judgment and his situation, the applicant believes that he will have no protection in Cameroon. He claims that the Cameroon government are extremely hostile towards and suspicious of the media, particularly those members of the media who the government accuse of being affiliated with the secessionists, or suspected terrorists. He also claims that he has a well-founded fear that the Cameroon government is not interested in innocence and if he returns to Cameroon, he will be subjected to persecution because the government is taking a hard line stance against the Anglophone movement. He cites the findings of the military court where he says it was wrongly found that he was working for the secessionists.
The applicant claims that he is unable to be protected in Cameroon and is unable to move elsewhere in Cameroon as it is the government who is persecuting him. When carefully assessing the evidence in this matter, the Tribunal accepts that claim. The Tribunal also accepts and finds that applicant has been charged under Cameroon’s broad anti-terror laws and if he returns to Cameroon he will be arrested and face the military court where he will be imprisoned for 15 years.
During the original review hearing,[36] the applicant provided certified copies of those documents referred to in these reasons. The Tribunal finds it to be an acceptable and plausible explanation that the applicant experienced difficulties in sourcing the original documents. The applicant was given the opportunity to provide the original documents, as well as a letter from his previous employer in Cameroon to validate his claims with respect to what had happed to him in Batibo and Yaoundé. The hearing was adjourned to allow for those documents to be gathered and presented to the Tribunal.
[36]On 20/09/2022.
When the matter returned to the Tribunal for continuation of the hearing, the applicant was able to produce to the Tribunal the original copies of the summons he received to attend the Military Court, the original certified report of the Acting Bailiff attesting to having seen the applicant in hospital; and the original copy of the medical certificate confirming that the applicant had suffered physical injuries and psychological trauma. Upon viewing the original summons, the certified report of the Acting Bailiff and the medical certificate, the Tribunal is satisfied as to the authenticity of those documents; and is satisfied that those documents support the claims made by the applicant. The Tribunal accepts that those documents corroborate the applicant’s claims.
The Tribunal also recognises that if it is found that the applicant is generally credible, the benefit of the doubt should be given to him where he has been unable to fully substantiate all of his claims.[37] In that regard, the Tribunal considers that the benefit should be given to the applicant.
[37]SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].
The applicant also produced to the Tribunal two letters to support his claims. The first letter was from [Mr A] who [works] at [Organisation 2] in Cameroon where the applicant was employed as a [journalist].
[Mr A] described that he knew and worked with the applicant for a period of six years from January 2012 when the applicant was a [journalist] working for [Organisation 2]. Apart from attesting to the applicant’s character, [Mr A] described that the applicant had been sent on assignment to Bamenda in February 2018 to [work on a job assignment for] 12 February 2018.
[Mr A] went on to confirm the applicant’s evidence that when no news had been heard from him or his family, [Organisation 2]’s lawyer was engaged to undertake some enquiries to locate the applicant. [Mr A] said that sometime later they ([Organisation 2]) were informed that the applicant had been arrested and assaulted in Batibo and then taken by force by the Cameroonian authorities and subsequently transferred to the special police station at Yaoundé.
[Mr A] went on to say he was able to meet with the applicant at [a] medical clinic where the applicant had been admitted for care. He saw that the applicant was in a ‘bad way’, with wounds and bruises on his body. When they met, the applicant broke down in tears and related to [Mr A] everything that happened to him. When [Mr A] described what the applicant told him, and this conformed with and corroborated the applicant’s claims.
[Mr A] further described a conversation he had with the police officer guarding the applicant, in which the police officer said that the charges the applicant stood accused of were serious enough that he risked a term of imprisonment of 10 years. Sometime later, [Mr A] met with their employer’s managerial staff to discuss what could be done for the applicant to secure a suitable outcome for him and it was at that time that they lost track of him. [Mr A] concluded by saying that during the past four years, no news was heard from the applicant until the applicant contacted him to provide a statement to the Tribunal.
A further statement was received from[Mr B]. He confirmed that he had worked with the applicant at [Organisation 2] in Cameroon for the period from January 2012 to May 2015. [Mr B] has since relocated from Cameroon and is now a citizen of [Country 1]. The Tribunal notes that although the short statement from [Mr B] attests to the good character of the applicant, he was not in a position to make comment on the circumstances which led to the applicant travelling to Australia and subsequently applying for a protection visa.
The applicant was able to show the Tribunal the original international courier envelopes containing those letters form [Mr A] and [Mr B]. The envelopes were opened during the hearing to validate that they had arrived from their original sources. The Tribunal accepts the veracity of those letters and the comments contained therein corroborate the applicant’s claims. In assessing the information contained within both letters from [Mr A] and [Mr B], the Tribunal accepts their evidence.
Country information
Country information in regard to Cameroon shows a consistent pattern of concerns relating to human rights abuse, including towards journalist. In 2019, the Organisation for World Peace published a report on sentences carried out by the Military Court in Yaoundé of people convicted of offences committed in the Anglophone region. The article outlined that:
In Cameroon’s capital, Yaoundé, a military court has sentenced ten Anglophone separatist leaders to life imprisonment after an overnight court session, which started on Monday, August 19 and ended in the early hours of Tuesday, August 20. The ten, including the self-declared President of Ambazonia Republic, which encompasses Anglophone territories in Cameroon, Julius Ayuk Tabe, were also fined 250 billion Francs CFA (approximately $500 million). One of the Defense Lawyers, Barrister Ayukotang Ndep Nkongho, described the ruling as “the most scandalous judicial proceeding in world history.” According to Barrister Felix Agbor Balla, a leading human rights lawyer in Cameroon who was also jailed for eight months in connection with the conflict in Anglophone Cameroon, “the sentencing of Ayuk Tabe and Co. to life imprisonment is an affront to due process and the rule of law. The right to a fair trial is a fundamental human right. The sham process is a reflection of the sham management of the country.[38]
[38] Cameroon Military Court Sentences Anglophone Separatist Leaders to Life Imprisonment, Gerald Tapuka, 09/09/2019.
In 2020, the online news organisation University World News reported that:
There has been mixed reaction to last month’s decision by Cameroon’s Court of Appeal to confirm the life sentences handed down by a military tribunal to six Cameroonian lecturers convicted on charges of terrorism and secession. The men were part of a wider group that was illegally detained in Abuja, Nigeria, in January 2019, abducted by a joint task force of Nigerian and Cameroonian security operatives, and flown in a military aircraft to Yaoundé, the Cameroonian capital. There, they faced a military tribunal relating to their alleged attempts to create a new state in Anglophone Cameroon, the Republic of Ambazonia with one of the academics, Julius Ayuk Tabe, as interim president.[39]
[39] ]news.com/post.php?story=20201014124808540, Mixed reaction to confirmation of life terms for academics, Tunde Fatunde, 15/10/2020.
Within a short period of time following the Military Court’s findings against the applicant, the online news organisation BBC World News reported that:
A court in Cameroon has convicted seven activists from the country's English-speaking minority of rebellion and terrorism, handing them sentences ranging from 10 to 15 years. They include the group's leader, Mancho Bibixy, a radio presenter in the Anglophone North-West Region. Cameroon's English-speaking minority say they are marginalised by the country's Francophone majority. Separatists have been demanding independence. Correspondents say Mancho Bibixy's radio broadcasts are associated with a radical movement in the north-western town of Bamenda. The North-West and South-West regions are the two mainly English-speaking areas.[40]
[40] 26/05/2018.
Cameroon is a republic dominated by a strong presidency who retains power over the legislative and judicial branches of government. The ruling political party is the Cameroon People’s Democratic Movement, and it has remained in power since its creation in 1985. The latest legislative elections were held in February 2020 and the United States Department of State, Bureau of Democracy, Human Rights, and Labor recently reported that those elections were marked by irregularities with the ruling party winning 152 of the 180 National Assembly seats. The national police and the national gendarmerie are responsible for internal security and there were credible reports that members of the security forces committed numerous abuses.[41]
[41]United States Department of State, Bureau of Democracy, Human Rights, and Labor, 2021 Country Reports on Human Rights Practices, page 1.
Contained within the United States Department of State, Bureau of Democracy, Human Rights, and Labor report relating to human rights in Cameroon, a number of references were made to the treatment of journalists, particularly those considered by the government to be connected to separatists or terrorist organisations. The journalist in this case was detained at a military facility. Despite being held in custody and never brought before a court, he died in custody ten days after his arrest. The report outlined that:
…….there were no developments reported on the high-profile investigation into the death of broadcast journalist Samuel Abue Adjiekha, popularly known as Samuel “Wazizi.” Wazizi was detained in August 2019 after authorities accused him of having connections with armed separatists. He was transferred to a military-run facility in Buea in August 2019 and never appeared in court, despite several scheduled hearings. According to the Ministry of Defense, Wazizi died in police custody 10 days after his arrest in 2019 from severe sepsis. Although Wazizi was officially pronounced dead in June 2020, his family had yet to see or recover his remains more than one year after the official death announcement.[42]
Analysis of applicant’s claims – future risk of harm to the applicant
[42]United States Department of State, Bureau of Democracy, Human Rights, and Labor, 2021 Country Reports on Human Rights Practices, page 7.
The Tribunal accepts and notes that at the time of the Tribunal review hearing, the applicant had acquired a far greater body of evidence to support his claims than to which he presented to support his original application. The Tribunal acknowledges that when the delegate made the assessment of the applicant’s original protection visa application, the benefit of that substantial body of probative evidence was not available to the delegate.
Invariably, and as was in this case, considerable time can pass between when the delegate made the original assessment, and the matter being determined by the Tribunal. Consequently, it is incumbent upon the Tribunal to hear and decide the applicant’s claims by way of a fresh hearing on the merits of his application as at the date of the review hearing. In doing that, the Tribunal is obliged to consider the best and most current information available and is not limited to the information which the delegate relied upon to reach the original decision.[43]
[43]Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.
In respect to the oral testimony of the applicant, the Tribunal finds that his evidence was delivered in a spontaneous, consistent and forthright manner and his evidence supported the claims he made, and it was corroborated by the documents he relied upon to validate his claims.
The Tribunal has assessed the applicant’s testimony and when weighed against the available country information in respect to the treatment of journalist suspected or accused of wrongdoing, the Tribunal finds that the applicant’s evidence was consistent with that country information.
The Tribunal accepts the applicant was sent by his employer to Bamenda to report on a [job], and for the innocent reasons of bonding with his partner’s father, he travelled from Bamenda to Batibo. The Tribunal also accepts that it is conceivable that as a professional journalist, he would be expected to have with him the tools of his trade such as a camera, which he then attempted to document the events which unfolded in Batibo on that day. In the absence of evidence to the contrary, the Tribunal accepts that the events as described by the applicant which followed his arrest in Batibo are consistent with the information contained within the United States Department of State, Bureau of Democracy, Human Rights, and Labor country information report on Cameroon, along with the media reports as described earlier in these reasons.
Having regard to that information, and the available evidence, the Tribunal finds that the applicant was employed as a journalist for a legitimate news organisation, [Organisation 2] in Cameroon; and his employer sent him to report on [a job] in Bamenda. The Tribunal further finds that for personal reasons he travelled to Batibo to meet his partner’s father, and whilst there he was suspected and arrested by the authorities as being an accomplice to the Ambazonian secessionists and working for [Organisation 1]. The Tribunal further finds that he was held in custody and transported to Yaoundé where he was further detained. The Tribunal accepts that the applicant was tortured by the Cameroonian Police when in custody and that he suffered injuries arising from the way he was treated. On assessment of the evidence, the Tribunal also finds that it was through the intervention of his employer, he was transferred to a hospital where his injuries were treated.
The Tribunal further accepts the applicant’s claims in respect to him being issued with a summons to appear in the Military Court at Yaoundé and that he escaped the hospital and fled the country before being punished by the court. The Tribunal finds that the evidence in this matter substantiates the applicant’s claims that the Military Court finalised his matter in absentia, and he was sentenced to 15 years imprisonment.
In conclusion, the Tribunal accepts and finds that there are substantial grounds for finding that, as a necessary and foreseeable consequence of the applicant being removed to Cameroon, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; by being will be arrested, imprisoned and tortured.
Tribunal further finds that the applicant meets the definition of a refugee and the criteria set out in the Act in that he is a person in respect to whom Australia has protection obligations as defined in the Act.[44]
[44]Migration Act 1958 (Cth), s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Act.
Wayne Pennell
Senior Member

Attachment - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2022] AATA 5083

1 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies