1821648 (Refugee)

[2022] AATA 2852

1821648 (Refugee) [2022] AATA 2852 (6 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Rachel Koo

CASE NUMBER:  1821648

COUNTRY OF REFERENCE:                   Cameroon

MEMBER:Melissa McAdam

DATE:6 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 06 July 2022 at 10:16am

CATCHWORDS
REFUGEE – protection visa – Cameroon – Federal Court remittal – member of particular social group – homosexual man – harassment and threats by family and community – forced to marry by family, but continued gay relationship – partner killed and applicant injured in group attack – inaction by police against perpetrators and arrest warrants for applicant –business forced to close – physical and mental health and treatment – credibility – inconsistent and contradictory claims and evidence – genuineness of documents – uncooperative attitude and unimpressive oral evidence at tribunal hearing – extensive supporting evidence from professionals, church and community groups and friends – country information – laws and societal attitudes – no treaty right to enter neighbouring countries – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (3), 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES
BZD17 v MIBP [2018] FCAFC 94
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Cameroon, applied for the visa on 11 July 2014 and the delegate refused to grant the visa on 27 May 2015.

3. The applicant previously appeared before the Tribunal, differently constituted.[1]  The then presiding Member affirmed the department’s decision. The applicant appealed the Tribunal’s decision to the Full Federal Court of Australia.[2]  The Court allowed the appeal and set aside the Tribunal decision.  The Court remitted the applicant’s application to the Tribunal to be heard and determined according to law. The Court held that the Tribunal had failed to engage in an active intellectual manner with the evidence of a critical witness, and that the Tribunal also made an unwarranted assumption that information about the applicant’s assault could have been passed outside Cameroon to be posted on social media.

   [1] AAT File Number 1508333.

   [2] BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94.

4. The applicant was represented in relation to the review.

   Relevant law

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

19. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    SUMMARY OF Claims and evidence

    Protection visa application

20. The following is a summary of the claims and information the applicant provided in his Protection visa application:

    a.He was born in [Year] in Douala in Cameroon.  He submitted his Cameroon passport issued in 2012. 

    b.He married in Cameroon. His wife and daughter, born in [Year], are in Cameroon. He separated from his wife in February 2014.

    c.He has two parents, [sisters] and a brother.

    d.He is Christian.  He is fluent in the French and [Local] languages.

    e.Since his childhood he has been enticed by people of the same sex. From the time he started living his sexual orientation he has been going through lots of troubles. It was persecution, fear and threats daily. For these reasons he had to move from one place to another one for safety reasons. In Cameroon homosexuals are not welcome but rather rejected by the population, their families, even the highest authorities.

    f.He therefore decided to leave his country because his life was in danger. Not only because he is gay but also because he is a member of an opposite political party. He has always been an opponent to the present leaders of the country by criticizing their leadership and pointing out the scourges in his country like corruption, poverty and desecration of human rights and values. A warrant for the applicant’s arrest has been issued against him.

    g.At the age of 18 years he had his first sexual contact as a gay man with someone called [Mr A]. The relationship broke up over six years later.  One year after their separation, the applicant met [Mr B]. They were in love for six years. The applicant was living in [Suburb 1] and [Mr B] was living in [Suburb 2] (city of Douala).

    h.Three years after the beginning of the relationship, the applicant started to receive some threats from his family.  His parents completely refused his relationship. He was therefore abandoned. He was very comfortable with men rather than women but his family forced him to get married to a woman of their choice according to rules and customs of the land. The applicant accepted in order to avoid the evil that could befall his entire family.

    i.He married in December 2008 to [Ms C] who was chosen and imposed by his parents. Nevertheless, he was always meeting with his lover [Mr B]. His wife was feeling abandoned and she began complaining to the applicant’s parents about his changing behaviour towards her. Unfortunately he could not reveal his homosexuality to her since he told his parents that he had stopped it. One night, she discovered that he was involved in an extra-conjugal relationship. His wife got his parents aware of the situation and they started spinning him out.

    j.In February 2014 it was his lover’s birthday and the applicant went to [Mr B]’s house after his office by five pm. Three hours later, as they were going out to a night club to have some fun, they were kissing without knowing that they were followed by the applicant’s wife. All of a sudden they heard people shouting and lots of people started coming.

    k.To the applicant’s greatest surprise, after his wife's explanation, people started calling him and [Mr B] names. The people encircled them and they were struck, insulted and beaten in such a way that his lover lost his life.

    l.The police did not arrest any of those who committed this awful act. The police and the population were rather rejoicing saying: "we've finished with your lover". The worst is that the applicant was arrested and led to a police station instead of a hospital. His body was all covered with blood.  He was put into a cell, receiving all kind of insults.

    m.Fortunately for him, the defenders network for human rights in Central Africa and the association for gays and lesbians and his lawyer were informed. They came to the police station and asked for the applicant’s evacuation to the hospital after long hours of negotiations. This was allowed by the police superintendent. The applicant was at the hospital with a police agent watching over him so that he could not escape. He went to that hospital covered with blood and almost dying with his left [Body part 1] almost broken. He stayed in the hospital for two weeks going through intensive care.  An agent of the police was posted at his door.  They were changed from time to time.

    n.When he began to recover a little, a nurse helped him to escape by passing through the window. This happened on a night on 10 March 2014. From there, he went to a European friend, [Mr D], who was living 10 km from the hospital and is also gay.

    o.[Mr D] ran the risk of keeping the applicant in his house since the applicant couldn't go back to where he was living before his family abandoned him.  Moreover, he was under a warrant of arrest issued against him on 12 of March 2014. [Mr D] helped the applicant to gather necessary documents for a visa application to Australia via his international partners. This application came to a successful conclusion on 19 May 2014.

    p.The applicant’s house and office were searched and he lost all his properties. His personal documents were kept in a private box at the post office and this eased his trip. As his visa was granted his friend arranged his trip with the support of an outstanding personality in the army who made things easy for him. Some officers at the airport helped him to get in the plane without any verification. He then left the country on [Date] June 2014 and arrived in Australia on [Date] June 2014 by the grace of god.

    q.Things were not easy for the applicant. He has lost a lot of weight.  He lives in fear daily.  His mental health and his life are meaningless currently.  He always has the feeling that they know where he is and that they'll come here and kill him as they promised.

    r.He really needs help. In Cameroon thousands of homosexuals and political opponents are tortured and killed every year. The case of his lover is just an example among others. In Cameroon they do not have rights despite the rules and settlements pointed out by human rights watch. His country is the number one, talking about humiliated rights of homosexuals.

    s.He arrived in Australia on a Visitor visa.

21. The applicant submitted the following documents:

    -    Copies of Arrest Warrants containing his name and Death Certificates containing [Mr B]’s name. Some of the dates and details in the various documents differ.

    -    A psychological report, prepared by a psychologist at [Organisation 1], dated 9 December 2014.  The psychologist reports treating the applicant since August 2014 and having had 13 sessions with him.  She writes that the applicant had expressed suicidal ideation and that he required ongoing counselling for the management of trauma-related symptomology.

    -    Letters containing positive character references from people he has met at church in Australia.

    -    A report from [Professor E], dated 8 December 2014, in which [Professor E] writes that he examined and treated the applicant at the [Refugee services provider], the applicant “is suffering from symptoms and signs of post-traumatic stress disorder. There were crepitations in his left [Body part 1]. X-ray of his [Body part 1] was normal. He also suffered from peptic ulcer symptoms due to helicobacter pylori gastric infection which was subsequently treated and resolved. He was subsequently admitted overnight to the psychiatric unit at [Hospital 1] Sydney due to dissociative symptoms and suicidal ideation. He has subsequently seen [a] psychiatrist who visits the [Provider]. His mood has improved but he continues to suffer from sleep disturbance and suicidal thoughts.”  [Professor E] also sets out the medication prescribed for the applicant.

    -    The applicant’s Discharge Summary from the Department of Psychiatry of the [Hospital 1] in Sydney, noting an admission date on 2 July 2014 and a discharge date on 4 July 2014. The report indicates the applicant was hospitalised due to post traumatic stress disorder and suicidal ideation.

    -    His Migration Agent’s written submission which included country information with respect to the treatment of the LGBTIQ community in Cameroon.

    Department Interview, 3 December 2014

22. The following is a summary of the claims and information the applicant provided in his interview with the department Delegate:

    a.The applicant had not travelled outside of Cameroon prior to coming to Australia.

    b.He was the head of a company in Cameroon.

    c.He was married forcibly in 2008.  He remained in the marriage until 2014. Since the incident on [Date] February he has had no contact with his wife. He had no children from his relationships. He was not previously married.

    d.At the age of [age] he was told he had to marry because he was to be the Chief.  His two names define that he is a chief.  He married his wife because he was chief, an important person in the village, so he had to marry to carry on the noble line.  The village considered he put a spell on his family for not marrying.

    e.About four months before February 2014, his wife found out the applicant is homosexual when she found his phone in the living room and she looked at and saw photos.  She told his parents.  From then on his parents started following him. 

    f.She hadn’t suspected he was gay before this but his parents knew from when the applicant was 18.  They threw the applicant out of his home. They found out because the applicant’s first homosexual relationship was with a school friend. Another school friend caught them in the shower and told the applicant’s parents.

    g.It is hard for him to talk about the incident on [Date] February 2014. The delegate told the applicant he needs to draw on some strength as he was going to ask for details about it.  After a while the applicant responded that from that sad night his life had no meaning.  They were going to a night club on [Mr B]’s birthday.  [The applicant cries and can’t speak.]  After work the applicant went to [Mr B]’s place.  They decided to celebrate by having a drink.  They were going to a hidden place in Doula, [Venue] in [Suburb 3].  [Venue] is a very discreet bar, but not a particularly gay bar.  There were no gay bars in Cameroon as it would be burnt down.  There are no public places for gays, just very discreet places.  There are two groups who advocate for gay rights in Cameroon. One is L’Adahfo, and Redhac for Cameroon and sub region of south Africa, Swiss Lawyers without Borders.

    h.When someone shouts ‘pede’ a short word for homosexuals like ‘homo’ the whole suburb comes so it is hard to say how many people attacked the applicant and [Mr B].  It is hard for him to say approximately how many when everyone was on top of them.  It was a lot of people.  The attack lasted less than two hours.  They were lucky they were not burnt.  Normally that is the first thing they do. Before they started hitting they were insulting the applicant and [Mr B].  The police arrived after [Mr B] was already dead.  In Cameroon all those who attack homosexuals are left unpunished. The police did not intervene. His wife, parents and uncle were following him and they yelled out ‘pede’.  They also hit the applicant and [Mr B].

    i.In 2008 the applicant’s mother was dying.  For her to get better the family thought the applicant had to get married. The applicant had to declare he was not homosexual. He loves his family but his family do not love him.

    j.The delegate put to the applicant that he could find no reports about the attack on the applicant and [Mr B].  The applicant responded that in Cameroon every day homosexuals are being chased.  The delegate put to the applicant that the applicant  had obtained intervention from a lawyer and an association yet there are still no reports about the attack which led the delegate to question the veracity of the applicant’s claim.  The applicant responded that not every case is publicised.

    k.The applicant knows [Mr B] died because he stopped breathing in front of the applicant.  The applicant obtained the Death Certificate after [Mr B] was buried.  A friend gave it to the applicant. The applicant was in hiding and his friend went to the funeral.

    l.The police arrested the applicant and took him to the police station.  When the lawyer and organisation arrived they put pressure on the police.  When a homosexual is arrested the news spreads in the town so they knew to come to the police station. The applicant was taken to [Hospital 2] in Douala.  The applicant was two weeks in intensive care. His left [Body part 1] was fractured and his teeth.  His body was covered in blood. He had been hit on the back of the head and all over. 

    m.One night a nurse came to help him escape out a window. The delegate put to the applicant that this was implausible that he was able to climb out of a window given his condition and that there was a police office on guard outside his room. The applicant responded that there was a shower in the room with a window. He knew he would be imprisoned or killed so the nurse said his life in danger and he should flee.  It was a big hospital in the centre. 

    n.He left hospital on 10 March.  [In] March an arrest warrant was issued.

    o.The delegate put to the applicant that if there was an arrest warrant he should not be able to leave Cameroon. The applicant responded that he hid at his friend [Mr D]’s place till June.  [Mr D] helped organise the visa to Australia.  [Mr D] had contact with an army officer who came to get the applicant from [Mr D]’s place, in the boot of his car, and drove the applicant to the airport.  The applicant did not do any airport formalities. He just took his passport and ticket and got onto the plane.  He thinks it was [named] airlines.

    p.The applicant’s house was burned and his business ruined.  He had a [business] in [Cameroon].  He had [number] employees. 

    q.On the night he was arrested his phone was taken.

    r.The applicant obtained the Arrest Warrant copy because it was given to his lawyer, Alice.  She gave it to [Mr D] and the applicant received it while he was at [Mr D]’s place.  He had a bag the night he was attacked.  It was taken off him and later given to the applicant’s lawyer.  The applicant scanned the arrest warrant while in Cameroon.  He does not have the original.

    s.The applicant submitted several Arrest Warrants issued at different places and times.  The applicant stated he was being looked for in different places.  The delegate put to the applicant that one of the arrest warrants was issued [in] February 2014 while the applicant was still living with his wife, so why was he not arrested then.  The applicant responded that his lawyer intervened. The charge was about paedophilia. The delegate put to the applicant that one of the arrest warrants refers to a judgment in March 2013.  The applicant responded that he was caught with a friend while they were drinking Baileys, after a meeting.  The police consider someone drinking Baileys is homosexual.  The March 2013 judgment was about an accusation against him of practicing paedophilia.  He appeared before a judge several times. He was acquitted because there was no proof. The 2014 Arrest Warrant was a repeat, asking him to return again. 

    t.The applicant has been in Australia for 4-5 months.  For the first three months he was sick.  Now he is trying to get his strength back. He has not had a life here yet. He has not entered any other relationships.  He still has [Mr B] in his heart.  The delegate put to the applicant that he has been in Australia for five months now and he would expect the applicant to have started to engage in a homosexual lifestyle in Australia.  The applicant responded that he has heard there is an organisation in Surry Hills for the protection of homosexuals but he has not yet had time to go there.  For the past two months he has been trying to get his health back.   He has been receiving treatment from the [Refugee services provider] who he is grateful to for being alive now.  He received psychological treatment and psychiatric treatment and treatment for his [Body part 1].  He has had physiotherapy for his [Body part 1] by the [Provider] at [Hospital 3] and the [Hospital 1]. He showed the delegate his recent prescription.

    u.He was one day arrested in 2010 by the police and the mayor.  They went through the applicant’s clothes and found a card of the SDF opposition party.  The police told the applicant he was homosexual and a member of the opposition and that he wants to make Cameroon homosexual. That’s when the applicant’s problems started.  He was arrested then because he was homosexual.  His claims are not about being political but about being homosexual.

    v.Human Rights Watch reported on Cameroon and the authorities told them they had no right to make orders in their country.

    w.One night he came home to his family and had a revelation and an ancestor said do everything you can to save your mother.  She was in hospital dying with a disease.  So he went back in 2008 and told them he needed to get married to help his mother.  He married his wife.  His family were scandalised when his wife told them she discovered he was gay.  They had separate rooms.  They were not really intimate with each other.

    x.When he fled the hospital after two weeks a nurse told him that not everyone is against homosexuals.  She knew the applicant a little because the child he adopted was from that hospital.  He adopted the child in 2011. The child’s parents died at her birth.  He does not know where she is now.  His wife was not her mother and was not part of the adoption.  The child lived with them.  He has had no news of her since [February] 2014.  The nurse told the applicant he had a chance to flee.  She kept an eye on the police guard while the applicant went through the shower window.  He took a motorbike to his friend’s place. The friend know he was at the hospital although the applicant was not allowed any visitors at the hospital. [Mr D] contacted the applicant’s lawyer to tell her the applicant had escaped from the hospital and was at his place.

    Delegate’s Decision

1. The Delegate was not satisfied the applicant was wanted by the authorities in Cameroon; that the applicant and his lover were assaulted in Cameroon; that the Arrest Warrant and the Death Certificate were genuine documents; or that the applicant is homosexual.

2. The Delegate was unable to be satisfied that the applicant had a well-founded fear of persecution in Cameroon, or that he was owed complementary protection.

   Information to the Tribunal

   Submissions, 2016-2017

3. In 2016 and 2017 the applicant submitted the following written information to the Tribunal:

   -A Sexual Health Centre [report], dated [April] 2016, describing the applicant’s identification as a homosexual. An updated report was provided to the Tribunal, dated [March] 2017.

   -A support letter dated 12 May 2016 from [a] volunteer counsellor at the [Refugee services provider] in [Suburb], who provided mental health support to the applicant.  Two further reports from [the volunteer counsellor] were provided to the Tribunal. One, undated was received on 13 March 2017, and the other was dated [April] 2017.

   -An undated letter of support from [Mr J].

   -Letters of support from [Brother K] dated 30 January 2017 and 24 April 2017.

   -A newspaper article covering the Sorry Mass of August 2016 at St Joseph’s Parish, Newtown, when the Catholic Church formally apologised to LGBTIQ people for the Church’s treatment of this minority. [Detail redacted.]

   -Photographs of the hospital building in Cameroon in which the applicant was treated; the applicant in hospital; the morgue where the applicant’s partner was taken; his partner’s coffin; his partner’s grave; the hospitals surrounds; and an-anti gay protestor in Cameroon. There are two photographs which purport to show the applicant in hospital. In one photograph the applicant is shown fully, with his right [Body part 2] in a bandage.  In the other photograph the applicant is also fully shown and it is his left [Limb] which is [completely bandaged].

   -An [Organisation 2] Agreement from [a course ] attended by the applicant. It includes an [Organisation 2] Position statement on safe sex that the applicant received as part of that course.

   -An invitation to family and friends to the funeral of [Mr B] [in] February 2022.

   -A Certificate of Appreciation from [Local] Council for volunteer work by the applicant in 2014

   -A certificate for completion of an English language course that the applicant undertook in 2014 at [Institution].

   -A receipt showing the purchase of an [Organisation 2] membership by the applicant, dated [January] 2017.

   -A copy of the applicant’s 2016 Sydney Mardi Gras ticket with the [Organisation 2] discount applied (dated 2 March 2016).

   -A copy of the applicant’s [Church group] Membership dated [February] 2017.

   -A variety of newspaper articles and headlines with respect to the treatment of homosexuality in Cameroon.

   -The ORAM Sexual Orientation, Gender Identity and Gender Expression Manual – a publication to assist adjudicators in LGBTI Matters.

   -A support letter from [a psychologist] dated 8 February 2017 supporting the applicant’s claim to be homosexual.

   -Photographs of the applicant and his family during various cultural ceremonies and festivities in Cameroon; and of his daughter; and of the applicant taking part in protests in Australia concerning the treatment of LBGTIQ persons in Cameroon.  

   -An updated letter from [Professor E] concerning the applicant’s mental health dated [February] 2017.

   -Identification documents of the applicant including his Cameroon passport.

   -Photographs of the applicant’s home following a raid in Cameroon.

   -A sample of text messages between the applicant and various male sexual partners in Australia in 2015-2016.

   -A statutory declaration, dated 14 March 2017 from [Mr M] who states he knew both the applicant and his deceased partner in Cameroon. Further evidence was submitted highlighting the human rights works of [Mr M] for the male sex worker community in Cameroon.

   -Further photos of the applicant at various LGBTIQ events including the Sydney Mardi Gras. A photo of the applicant with [Mr M] is also included.

   -A letter of support from [Mr N], the applicant’s partner in Australia, dated 12 April 2017; and later on 26 April 2017, a statutory declaration from [Mr N].

   -Health records showing the applicant was treated for a broken tooth by the [Refugee services provider] pro bono on 2 December 2015 and 11 December 2015.

   -Business records concerning the applicant’s company and business in Cameroon.

   -Copies of threatening emails received by the applicant from various parties between 16 July 2014 and 14 September 2014, and emails form his sister describing attacks upon and threats to the applicant’s family in Cameroon because of the applicant.

   -Documents concerning the schooling of the applicant’s daughter in Cameroon.

   -Country information concerning the applicant’s home [town].

   -An email from [a doctor] dated 20 April 2017 which includes his travel itinerary. 

   Tribunal Hearings, 2017

4. The applicant appeared before the Tribunal (as previously constituted) at three hearings in 2017.  During the hearings there were discussions on the following topics:

   -The applicant’s father’s standing in Cameroon as a tribal chief and the applicant’s role in the tribal community as his father’s eldest son.

   -The closure of the applicant’s business in Cameroon. His business premises had been raided and his employers were scared.

   -The lack of any reporting of the claimed attack on the applicant and his partner in Douala in February 2014.

   -Discrepancies in the Death Certificates for the applicant’s partner and the Arrest Warrants for himself. The applicant responded that these were the result of administrative errors in Cameroon. There were also several differently dated arrest warrants because the police and magistrates issue these as a form of extortion.

   -The applicant’s fear of being killed in Cameroon as a homosexual.

   -How the applicant’s homosexuality was discovered by his parents when he was 15 after he and another boy were found together in the school toilet.  The applicant stated further that he was then returned to his village where sacrifices and ceremonies were conducted to ‘rid’ the applicant of homosexuality.  He then returned to Douala and had to change schools.

   -The applicant’s first relationship with a man, [Mr A], when he was 18 years old.  A friend told the applicant’s parents about this and they threw the applicant out of his home.  He then had to engage in sex work to survive.  He stayed in a relationship with [Mr A] for six years, until 2004.  He frequented European style places where the homophobia was not so bad.  In such a place, in 2006, he met [Mr B] and started a relationship with him. 

   -His mother’s illness after three years.  His family started looking for the applicant to convince him to marry so his mother would get better.   He loved his mother so agreed to marry and was married in December 2008. He initially stated that he did not have a copy of his marriage certificate and that he can’t provide evidence of his marriage.  He has heard that his wife started divorce proceedings soon after he departed Cameroon.  Before his third hearing he submitted a marriage certificate recording his marriage to his wife in December 2008.

   -The applicant’s friend, [Mr Q], who is taking care of the applicant’s adopted daughter, arranged [Mr B]’s funeral.  The friend is not homosexual but he is also not homophobic.

   -The applicant adopted an orphan girl in Cameroon.  His family and his ex-wife refused to care for her so the applicant’s friend, [Mr Q], did. The applicant has maintained contact with his adopted daughter while in Australia.  He can provide some evidence of this to the Tribunal.  At the third hearing he submitted a copy of his daughter’s Birth Certificate. It was issued on [date] and records the baby’s birth date as [Date], the applicant as the baby’s father and “[name deleted]” as the baby’s mother.

   -He lived with his wife [Ms C] but maintained his relationship with [Mr B].  About three or four months before the applicant’s arrest she found photographs of the applicant with [Mr B] on his phone and told the applicant’s family.  The applicant denied being a homosexual to them but they started following him on a daily basis. 

   -A [Country 1] friend in Cameroon, who the applicant had known for over ten years, helped the applicant start his own [business] there.  They met when the applicant was a sex worker in Yaounde and the [Country 1] man was his client.

   -He described the attack on him and [Mr B] on [Date] February 2022 and his subsequent arrest.  [Mr B] suffers from asthma and the applicant believes he died that evening, perhaps in hospital.  A human rights organisation called HRIDAC went to the police station to negotiate the applicant’s transfer to hospital.  The applicant’s lawyer was also at the police station.  The applicant was taken to hospital unconscious.  He had a broken tooth and a hurt [Body part 1]. His [Body part 1] was x-rayed and he was told what was wrong with it but he can’t remember what it was.  He was in hospital for two weeks. He had a fractured [Body part 1]. A nurse he knew because she had helped him adopt his daughter helped him escape by contacting his European friend, taking him out of his room to a toilet where he escaped through a window, and arranging transport for the applicant. He thinks he escaped on 10 March 2014.  The applicant went to his European friend who used a business contact in Australia to help arrange a visa for the applicant.  The applicant didn’t go to [Country 1] because it would be easy for the Cameroon authorities to arrest or assassinate him in [Country 1]. The applicant’s European friend bribed a high ranking military officer to drive the applicant to the airport.

   -The applicant described having sexual relations with other men in Australia but no relationship and that he was looking for a relationship.  He has a current male sex partner and he has photographs and text messages to show this. A friend in Australia organises a place the applicant can go to with his sexual partner on occasion.

   -The applicant’s long-term counsellor gave oral evidence at the hearing and gave her opinion that the applicant is homosexual.

   -A person from the applicant’s [group] at the [church] gave oral evidence of the applicant’s long participation in and attendance with the group.  She has observed the applicant’s affectionate behaviour with other gay men in the group. The applicant spoke of the importance to him of meeting and being involved in a gay [church] community in Australia.

   -The applicant explained that he did not fear harm in Cameroon on a political basis and that he did not have a ‘political’ claim.

   -Before his third hearing the applicant submitted copies of emails from third parties, including [Mr S], threatening to kill the applicant and his family and confirming an assault on the applicant’s sister and her family.  He also submitted copies of emails from a local [authority], threatening the applicant, telling the applicant to speak with the authorities and showing pictures of a noose around men’s necks and emails threatening to kill the applicant’s daughter.  He also submitted a letter from his ex-wife in which she refers to the applicant and his family hiding from her that he is gay and that she no longer wants anything to do with them, and wishing she had not allowed the applicant to adopt her child because he is gay.

   -A social worker who has been working closely with the applicant since 2015 gave oral evidence stating that she was convinced the applicant is gay.

   -[Mr M] gave oral evidence at the third hearing. He was an activist for gay and lesbian rights in Cameroon. He knew the applicant and his boyfriend [Mr B] as a gay couple in Cameroon.  [Mr B] was a volunteer for a project [Mr M] ran and they met on 17 May 2011, a day which commemorates violence against gay people [IDAHOT Day]. The applicant and [Mr B] assisted and were beneficiaries of projects run by [Mr M].  A lot of attacks on gays in Cameroon go unreported.

   -The then presiding member telephoned the man the applicant claimed was his current sexual partner during the third hearing. The man confirmed that he and the applicant were casual sexual partners.  They have met twice at a house in [suburb].  He doesn’t know the address. He and the applicant have not met anywhere else. The applicant then stated that the man is very discreet and would not talk about them both having sex in toilet blocks or car parks to the Tribunal.

   2022 - Pre Hearing Submission

5. On 10, 14 and 15 June 2022 the applicant’s Agent provided the following written material to the Tribunal:

   -    A further Statutory Declaration by the applicant.

   -    The applicant’s original statement in French with an English translation.

   -    Official documents relating to the applicant’s company and business in Cameroon.

   -    A 2014 Advocate newspaper article referring to the attack on the applicant and his partner in Douala in February 2014 and to attacks on other gay men in Cameroun.

   -    An Internet article dated 14 October 2016, entitled ‘Homophobia in Cameroon’, which refers to the February 2014 attack on the applicant and his partner and to attacks upon other gay men.

   -    Photographs of the applicant at LGBTQI+ events in Sydney and Melbourne

   -    Photographs of the applicant in hospital in Cameroon.

   -    A wedding photograph of the applicant and his then wife.

   -    A wedding photograph of the applicant’s ex-wife to her new husband.

   -    Several psychological and counselling reports regarding the applicant.

   -    A letter of support from friends of the applicant.

   -    Records of payments sent by the applicant to people, including [Mr Q], the applicant’s brother and the applicant’s sister, in Cameroon.

   -    Email exchanges between the applicant and advocate Alice Nkom in Cameroon, since the applicant’s arrival in Australia.

   -    Country information regarding the ransacking of Alice Nkom’s office.

   -    A letter of support from the [group] of the [Church].

   -    A letter of support from the [Organisation 1] LGBTIQA+ Refugee Community Support Group.

   Tribunal Hearing, 16 June 2022

6. The applicant appeared before the Tribunal on 16 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant knew he was homosexual since he was a child. When he realised he was homosexual he felt fear.  He did not have other feelings, just mainly fear.

   b.He had two gay lovers in Cameroon.  He also had some gay friends in Cameroon but he doesn’t remember anything about them or who they were.  All he knows is that they all shared the same suffering and pain.

   c.He met [Mr M] through his late partner.  He first met [Mr M] at a program [Mr M] ran for the health of gay men.  [Mr M] was the coordinator of the project.  The applicant and [Mr M] were introduced and exchanged greetings with each other.  They did not have much contact after this.  The applicant saw him several times at the program.  The applicant was both a volunteer and a benefactor of the program.  As a volunteer the applicant would listen to the complaints of other gay men and give out some basic products such as condoms and lubricant.  It was hard for gay men to get condoms in Cameroon.

   d.The applicant would listen to other gay men in a group.  The applicant is unsure but thinks the group met at an anonymous place in a house as they were fearful of being apprehended. The applicant cannot remember the approximate number of times he was involved in group meetings.  The applicant did not make any friends in the group because the life of gay man in Cameroon is a solitary life.  Everyone is scared of being identified as gay. 

   e.The Tribunal asked the applicant how he met the advocate Alice Nkom.  He responded that Alice Nkom is an LGBTQI+ activist and lawyer in Douala.  She is the only one and is well known and in grave danger like the applicant.

   f.The applicant met Alice Nkom when he was asked to go to the police station and his partner [Mr B] contacted her to help him at the police station.

   g.The applicant does not know approximately how many times he went to the police station in Cameroon.   He only remembers the time he went in 2014.  He went to the police station once.  The other times he was contacted or stopped by the police but he would pay them some money so they would then leave and not take him to the police station.

   h.The Tribunal asked the applicant about the number of arrest warrants he had submitted which bore different dates. The applicant responded that the police would stop him and they would write an arrest warrant and give it to him. The applicant would then pay the police money and they would leave him alone.

   i.The applicant did not know [Mr M] was in Australia when he first arrived in Australia. The applicant met [Mr M] by chance during Mardi Gras in Sydney.  They stayed in contact after that.  They have had lots of contact.  When [Mr M] is in Sydney he sleeps at the applicant’s place.  The applicant last saw [Mr M] in May.

   j.The applicant has a gay friend in Australia, [Mr J], who is attending the hearing with him.

   k.The applicant is involved in a [Organisation 1] LGBTQI+ refugee support group.  It helps him a lot.  Since COVID the group meetings are by Zoom.  They also had an excursion recently.  The applicant participates in the group meetings about once a month.  The group helps him because he is with other people who experience the same pain and suffering as he does.

   l.The Tribunal asked the applicant if there was any aspect of his life as a gay man in Australia that he does not associate with pain and suffering.   He responded that people like him, a gay of colour, are discriminated against by the white gays. The people in his group share this pain and suffering.

   m.The only moments of joy and happiness he has had in Australia is with the [church group] as they share the same gay Christian values.

   n.The Tribunal asked the applicant what he hoped for in his future and he responded it was to be accepted and to have a society that accepts people of colour like him.  He has experienced racism in Australia every day.  Recently a gay man told him he can make love to a black man but not be intimate with one.

   o.The Tribunal asked the applicant if he had been to a police station in Cameroon just the one time.  After a long pause the applicant responded no it was on at least two other occasions he had gone to the police station in Yaounde.  The time he remembers is going to the police station in Douala on the night in February 2014.

   p.Between 2012 and 2013 he thinks he went to the police station perhaps twice in Douala.

   q.The applicant adopted his daughter, [Child 1], because many children die at childbirth in Cameroon.  [Child 1]’s mother died when she was giving birth to [Child 1] at a hospital that the applicant went to regularly to donate blood.  [Child 1] had no family to support her.  So the applicant saved [Child 1]’s life by adopting her as his own daughter.  If he was still in Cameroon he would have many more children.

   r.The applicant’s agent submitted to the Tribunal the original newspaper containing the article about the attack on the applicant and others in Cameroon.

   s.The applicant received the 2014 newspaper through a friend in [Country 1] who told the applicant that the event had been reported in a newspaper in Cameroon. The applicant asked his [sister] in Cameroon to locate the newspaper for him.  She went to a newspaper kiosk and asked for the newspaper and was able to obtain it.  She had the reference for the newspaper, including the newspaper name, the article front page title, and the date of the newspaper. She knew these details because someone had read the article in the past and talked to someone else who talked to someone else etc.

   t.The Tribunal put some concerns to the applicant about the appearance and contents of the newspaper and article, and the Internet article, which suggested that they may not be genuine. The applicant has not read the article because he has never wanted to read it.  The people who have read the article told them that what it said was all true.  They know it is true because the applicant’s [sister] and the applicant’s friend know what happened to him.

   u.The Tribunal heard from [Mr J] who expressed his support for the applicant as a gay man, since meeting him at the Catholic [group].

   Country Information

1. DFAT’s ‘Travel Advice’ on Cameroon contains the following:

   Same-sex relationships are illegal. Penalties include 6 months to 5 years jail and a fine of 20,000 to 200,000 francs.

   … Same-sex relationships are illegal. Penalties for same-sex activity include both:

   6 months to 5 years jail

   a fine of 20,000 to 200,000 CFCA francs.

   The media has reported attacks and arrests targeting LGBTI people.

2. The UK Home office 2020 CPIN report, ‘Cameroon: Sexual orientation and gender identity or expression’, contains the following:

   While the constitution provides equal rights for all citizens, there is no legal provision for protection against discrimination on grounds of sexual orientation or gender identity. Despite the criminal code having been revised in 2016, same-sex sexual relations for both men and women remains illegal and carries a sentence of between 6 months to 5 years and a fine of up to 200,000 Cameroonian francs (CFA).

   Additionally, a law on cybersecurity and cybercrime criminalises the making of sexual propositions online, with a penalty of between 1 and 2 years’ imprisonment and a fine of up to 1,000,000 (CFA). This is doubled if the proposition results in sexual intercourse. The law is, however, silent on the legal status of trans or intersex persons and issues related to intersex people have rarely been addressed officially. Cameroon is reported to prosecute people for consensual same sex relations more aggressively than any other country in the world.

   Some politicians and members of the government, including members of the National Commission for Human Rights and Freedoms (CNDHL) have publicly denounced sexual minorities. The CNDHL negates and ignores reports of discrimination against LGBTI persons. LGBTI persons are also generally excluded from political processes and their interests are poorly represented by elected officials.
   Sources report that tens of persons who are, or are perceived to be, LGBTI are arrested each year and a smaller number are prosecuted. For example, NGOs reported that in 2016, 33 people were arbitrarily arrested in Yaoundé based on their perceived or actual sexual orientation. Comprehensive statistics on the number and frequency of arrests of LGBTI persons are not available to determine how systematically the law is enforced but NGOs claimed there were 56 cases of arbitrary arrests and 4 cases of imprisonment and criminal convictions in 2018. There also are reports that fair trial standards are not met and that prosecutions are  based on suspicion or allegations from strangers. Additionally, some prosecutions may affect male rape victims rather than gay and bisexual men.

   In addition to arbitrary arrests there are some reports that the police harass, extort and blackmail LGBTI persons. Those persons who have been arrested and/or detained reported being subjected to ill-treatment, including physical and sexual assault, and being subjected to forced anal examinations. There are also reports that individuals and organisations who support or advocate on behalf of LGBTI activists are often subject to harassment and abuse, including torture and ill-treatment and arrest, although a number of NGO groups continue to operate and provide assistance to LGBTI persons.

   LGBTI persons suffer discrimination in accessing services such as healthcare, including access to HIV / AIDS treatment and services, and employment.

   Cameroonians generally hold a negative view of same-sex relations. Homophobic views are widespread and sources indicate that there is strong societal intolerance of and discrimination against LGBTI persons. Anti-LGBTI rhetoric in mainstream media plays on and may magnify existing societal homophobia.

   Religious leaders in Cameroon play a role in perpetuating stigmatization of same-sex relations.

   LGBTI persons and persons suspected or perceived to be LGBTI are reported to have been subjected to threats, violent attacks including murder, discrimination and harassment involving intimidation, blackmail, loss of property and eviction, denial of educational opportunities, loss of employment, and difficulties in accessing health care.

   Some LGBTI persons are rejected by their families and some have also experienced physical and sexual attacks, including ‘corrective rape’ and killing.

   Sources report that there are a number of organisations operating in Cameroon providing various forms of assistance and support to LGBTI persons. However, civil society organisations and their members have also been subject to harassment, threats and violence by societal actors. NGOs have reported difficulties in obtaining legal approval with the authorities if their statutes mention LGBTI issues.

3. A 2017 joint report by several human rights NGOs in Cameroon states:

   This alternative report, by National Observatory for the Rights of LGBT Persons and Their Defenders, under the coordination of CAMFAIDS, and The Advocates for Human Rights, discusses human rights record related to the treatment of lesbian, gay, bisexual, and transgender people in Cameroon. It is based on research conducted in Cameroon in 2017 by the National Observatory under the coordination of CAMFAIDS.

   Societal and institutional discrimination against LGBT persons is pervasive in Cameroon, which is one of only a few countries in the world that regularly prosecutes people for consensual same-sex conduct.

   Human rights violations targeting LGBT people in Cameroon extend beyond the threat of criminal prosecution. LGBT people are also vulnerable to violence by community members. In such cases, they are often unable to seek justice out of fear of being treated as criminals themselves. LBGT Cameroonians also face significant difficulties obtaining equal access to health care and education, and are often refused treatment at hospital or expelled from schools because of their sexuality or gender identity.

   Organizations supporting LGBT rights in Cameroon are also at risk. Beginning in July 2013 and continuing through at least May 2017, the offices of CAMFAIDS in Yaoundé were repeatedly vandalized by angry neighbors who accused CAMFAIDS of “destroying the neighborhood.” Neighbors repeatedly threw rocks and bottles at CAMFAIDS’s offices in an attempt to destroy its security system. People associated with the organization, including several transgender individuals residing at the CAMFAIDS facilities, were physically attacked by community members on their way to and from the center. Moreover, a formal police complaint was filed against CAMFAIDS for the “promotion of homosexuality.” This complaint was filed with the aim of having CAMFAIDS removed from the neighborhood. [3]

   [3] Cameroon - Alternative Report, responding to the Government of Cameroon’s 5th Periodic Report, The Advocates for Human Rights,  a non-governmental organization in special consultative status and  The National Observatory for the Rights of LGBT Persons and Their Defenders, under the coordination of CAMFAIDS  for the 62nd Session of the Committee Against Torture  6 November–6 December 2017, submitted October 2017

4. A similar joint NGO report published in October 2017 states:

   The State of Cameroon continues to infringe the human rights of LGBT people, including through the criminalization of same-sex sexual acts between consenting adults (currently through Article 347-1 of the Penal Code). Also, Article 83 of the 2010 law on cyber-crimes and cyber security criminalizes with imprisonment and/or a fine a person who makes “sexual propositions to another person of the same sex” by electronic communications, and those penalties double if those propositions are followed by sexual relations. These provisions are in clear violation of the ICCPR.

   Criminalization of same-sex sexual acts leads to stigmatization of people based on their real or perceived sexual orientation and gender identity. LGBT people in Cameroon continue to face criminalization, violence, intimidation, and discrimination. Many individuals are arbitrarily detained by the police, and physically and psychologically abused while in custody. Attacks against persons on the basis of their sexual orientation and gender identity go largely unpunished and hate crimes are rarely investigated. Also, the lack of a legal framework protecting the rights of LGBT people has a negative impact on the exercise of many other od their rights, such as education, health, and employment. Discrimination against the LGBT community is deeply ingrained in Cameroonian society.

   Civil society organizations based in Cameroun have documented 21 cases in 2014 in Yaoundé 7 cases in 2015, and 33 cases in 2016 of arbitrary arrest of individuals based on their perceived or actual sexual orientation. In May 2014, four men were detained by the police after returning to Northern Cameroon with condoms and lubricant in their pockets. The police assumed that the men were on their way to engage in same-sex acts. After three days of physical abuse, the men were released because they cleaned the police station. In September 2014, six individuals were arrested in a raid at a home, based on the indication by neighbors that it housed “homosexuals,” by the police in Kodengui.

   Organizations and LGBT activists report that “weekend arrests” of LGBT people with the purposes of extortion are common in Cameroon. LGBT people or those perceived to be are detained on Friday and held through the weekend, then released after paying large sums of money. Two brigades, for example, in the town of Yaoundé are reputed to carry out arbitrary arrests with the aim of extorting the victims.

   Also, many individuals that are detained on the basis of the Article 347-1 of the Penal Code are subjected to different forms of torture, which include forced anal examinations, which supposedly are conducted to “prove” that they have engaged in same-sex sexual acts.
   Further, human rights defenders of LGBT people face numerous challenges, including being subjected to constant acts of violence and discrimination. Organizations and associations face hurdles seeking and maintaining registration because of undue and arbitrary interference by State authorities.

   Gender-based violence often takes the form of so-called “corrective” rape. “Corrective” rape has been described as a “hate crime in which an individual is raped because of their perceived sexual or gender orientation, with the intended consequence of the rape being to ‘correct’ the individual’s orientation or make them ‘act’ more like their gender.” In 2014 a young woman and her two female friends were raped by four men, who accused the girls of being a lesbian because they rejected having sex with the men.

   Religious leaders, public servants, and the media play a fundamental role in perpetuating this discrimination and stigmatization against LGBT people. Religious groups and leaders publicly express their rejection to “homosexuality,” and associate same-sex sexual behaviors with Satanism.

   In its March 2014 Concluding Observations regarding the periodic review of Cameroon, the African Commission on Human and Peoples’ Rights, while noting with concern judicial harassment, offences against life and other human rights violations of defenders “working in the area of sexual orientation”, and noting “discrimination, stigma and violation of the right to life and physical and mental integrity of individuals based on their sexual orientation,” recommended Cameroon to “take appropriate measures to ensure the safety and physical integrity of all persons irrespective of their sexual orientation and maintain an atmosphere of tolerance towards sexual minorities in the country.”

   The State of Cameroon has rejected the recommendations made by the Committee and other human rights bodies and hence, it has failed to meet its obligations under the ICCPR. The purpose of this report is to highlight the widespread human rights violations against individuals on the basis of their sexual orientation and gender identity. In particular, this report draws the attention to the following human rights violations of LGBT people in Cameroon:

   • Criminalization of sexual acts and sexual propositions through electronic communications between consenting adults of the same sex.

   • Torture and forced anal examinations against LGBT people or people perceived to be LGBT.

   • Arbitrary detentions, including “weekend arrests” with the purposes of extortion.

   • Extortion and blackmail by State agents and private individuals.

   • Killings, attempted killings, threats, violent and verbal attacks against LGBT people.

   • Sexual violence and “corrective” rape against lesbian women and transgender men.

   • Violence and Discrimination against LGBT human rights defenders and denial of registration to LGBT human rights organizations.

   • Hate speech, homophobic and transphobic statements by political and religious leaders and by members of the media, which fuel pervasive violence and discrimination against LGBT people.

   • Other forms of discrimination against LGBT people, including in education, employment, access to health care, within families and in the communities. [4]

   [4]       The Violations of the Rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) Individuals in Cameroon , To be submitted for consideration at the 121th Session of the Human Rights Committee October 2017. Submitted to the United Nations Human Rights Committee by:  Acodevo, Action Affirmative, Alcondoms-Cameroun, Alternatives-Cameroun, Association amis du Coeur, Association AVAF, Association des jeunes solidaires de Garoua, Association jeunes de l'ouest, Cerludhus, Elles Cameroun, Humanity First Cameroun, Ladies Cooperation, Synergía, Initiatives for Human Rights.

5. Cameroon penalises same sex relations under the 2016 Penal Code, Article 347-1 (Homosexuality). The provision carries a maximum penalty of five years’ imprisonment and a fine of between 20,000 – 200,000 francs.[5]

   [5]      Cameroon | Human Dignity Trust ‘Cameroon’ – Human Dignity Trust, 2022; see also Law No. 2016/007 of July 12, 2016, relating to the Penal Code (wipo.int)

6. Between 2014 and 2016, police action against LGBTQI+ people appeared to decrease. In 2014, Amera International referenced the Cameroonian Foundation for AIDS, which reported that prosecutions for homosexuality in Yaounde dropped by 58% from 2012 to 2014.  In 2016, the US Department of State Human Rights noted that arrests had dropped dramatically.[6]

   [6] Cameroon | Human Dignity Trust, Cameroon LGBTI Resources – Amera International.

7. However, in 2021 and again in 2022, Human Rights Watch reported that there had been an increase in police action against LGBTI+ people.[7] Several other sources have supported this conclusion.[8]  On 24 February 2021, police raided an organisation that provides HIV prevention and treatment services in Bafoussam, West Region, arresting 13 people on homosexuality charges, including staff members. All people arrested were eventually released a few days later. However, those arrested reported they had been threatened and verbally assaulted by the police, had been interrogated without a lawyer, and forced to sign statements they were not allowed to read.[9]

   [7] Human Rights Watch, ‘Cameroon: Wave of Arrests, Abuse Against LGBT People’, 14 April 2021;

   [8] 2020 USDOS Country Reports on Human Rights Practices: Cameroon

   [9] Human Rights Watch, Cameroon: Wave of Arrests, Abuse Against LGBT People’,14 April 2021

8. According to Human Rights Watch, ‘between February and April 2021, security forces arrested at least 27 people, including a child, for alleged consensual same-sex conduct or gender nonconformity, beating and subjecting some, including three teenagers ages 15 to 17, to forced anal examinations in detention’.[10] In 2021, two transgender Cameroonian women were sentenced to five years’ imprisonment, the maximum sentence, for ‘contravening homosexuality laws’.[11] One of the women is trans celebrity Shakiro, a YouTuber who highlights the problems that Cameroon’s LGBTI+ community faces. The BBC reported that since 2022, ‘the Cameroonian Foundation for AIDS (prominent organisation advocating for LGBTI people), recorded 32 cases of violence and abuse against LGBTI people across the country, an increase of 88% from the same period in 2021’.[12]

   [10] Ibid; Human Rights Watch, ‘No Protection from Group Attacks; Authorities Arrest, Detain Victims’, 11 May 2022

   [11] BBC News, ‘Cameroon jails transgender women for ‘attempted homosexuality’ – Ben Hunte, 12 May 2021

   [12] Human Rights Watch, ‘No Protection from Group Attacks; Authorities Arrest, Detain Victims’, 11 May 2022.

9. Cameroon prosecutors have introduced medical reports based on forced anal exams into court which have subsequently lead to individuals being convicted of having consensual homosexual conduct.[13] Amnesty International suggests people arrested on the basis of being in a same-sex relationship are forced to undergo anal examinations, in a mistaken belief  by the authorities that the examinations can prove whether or not people have engaged in same-sex relations.[14] These examinations are recognised by the United Nations special rapporteur on torture as cruel, inhuman or degrading treatment or punishment as a form of ill-treatment that can rise to the level of torture.[15]

   [13] Human Rights Watch, ‘Cameroon: Wave of Arrests, Abuse Against LGBT People’, 14 April 2021.

   [14] Amnesty International, 2013 ‘Cameroon: End impunity for grave human rights violations’ January 24

   [15] Human Rights Watch, No Protection form Group Attacks; Authorities Arrest, Detain Victims’, 11 May 2022

10. The US Department of State 2020 report concluded ‘LGBTI people continue to face significant stigma, violence, and discrimination from their families, communities, and the government’. They added that ‘fear of exposure has affected individuals’ willingness to access HIV/AIDS services, and a number of HIV-positive men who had sex with men reported also partnering with women, in part to conceal their sexual orientation’. Anecdotal reports also suggested some discrimination occurs in places of employment in respect to sexual orientation.[16]

    Alice Nkom

    [16] US DOS ‘2020 Country Reports on Human Rights Practices: Cameroon’.

11. The 2022 Human Rights Watch report referred to above quotes Alice Nkom as follows:

    Cameroonian lawyer Alice Nkom says this ‘is a blatant human rights violation’. As such, there exists a ‘legal environment, compounded by widespread social stigma and discrimination, [that] allows violence to proliferate, while security forces fail to protect LGBTI people from group violence and instead arrest and detain those who report it’.[17]

    [17] Human Rights Watch, 2022, ‘Cameroon: Rising Violence Against LGBTI People - No Protection from Group Attacks; Authorities Arrest, Detain Victims, 11 May.

12. A July 2015 Amnesty International article also refers to the work of advocate Alice Nkom stating:

    In Cameroon, defending the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people or being LGBTI comes with the risk of being attacked or even killed. The murder of Eric Ohena Lembembe, a human rights activist, on 15 July 2013, is testament to this. As we commemorate the second anniversary of his death, Balkissa Ide Siddo reflects on the determination of activists in Cameroon to stand up to homophobia.

    In Cameroon, as in much of west and central Africa, being anything other than heterosexual is against the law. It is also socially unacceptable. Vigilante attacks on people who are – or are believed to be – gay or lesbian, for instance, and on those who defend them are common.

    In 2013, Eric Lembembe (pictured above), director of rights association CAMFAIDS, paid with his life for his defence of LGBTI people. Two years later, his killers have not been brought to justice. Yet, despite the very real risks, a courageous opposition to the supposed “traditional” view of sexual orientation is growing.

    In Douala, Cameroon’s second city, I visit ADEFHO, the first Cameroonian association set up to defend the rights of LGBTI people. In one of the offices, a young man is attending to case files. A 24-year old law student, Alain volunteers at the centre. He is assisting renowned lawyer Alice Nkom, who founded ADEFHO in 2003 and received Amnesty Germany’s 7th human rights award last year.  … Associations like ADEFHO in Douala and CAMFAIDS in Yaoundé, Cameroon’s capital, are working hard to protect and defend LGBTI people and combat homophobia. Like Eric Lembembe of CAMFAIDS, they show great courage in the face of grave risks.

    For Alice Nkom, “These threats are in fact proof that our fight must continue.”[18]

    [Mr M]

    [18] Amnesty International “Why should people be attacked because they are gay?” – Defying homophobia in Cameroon, 14 July 2015,

1. Various articles available on the Internet refer to the work by [Mr M] in support of [deleted] in Cameroon.[19]

   [19] See e.g. [Details redacted].

   CONSIDERATION OF Claims and evidence

2. The applicant submitted his Cameroon passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of Cameroon. The Tribunal assesses the applicant’s claims against Cameroon as his country of nationality and receiving country.

3. The applicant claims to be a gay man and to have suffered harm in the past in Cameroon because of his homosexuality.  He claims to fear serious harm on return to Cameroon because he is a gay man.

   Credibility

4. The Tribunal acknowledges the substantial efforts of the applicant’s current representative, Ms Rachel Koo, and the applicant’s former representative, Ms Katarina Tordon of IARC, in sourcing and providing an extensive amount of relevant information which has been of assistance to the Tribunal.

5. 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).

6. 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.

7. 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’. 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.

8. The applicant’s oral evidence at his hearing on 16 June 2022 was not particularly forthcoming.  He showed some resistance to answering the Tribunal’s questions and providing detailed responses.  It was therefore difficult for the Tribunal to obtain information from the applicant about his life as a gay man in Cameroon. Further, some of his brief responses, such as those regarding his activities and friends in Cameroon were internally contradictory and inconsistent with other evidence he had previously provided. 

9. Some of the documents from Cameroon, obtained and submitted by the applicant contain elements which raised serious questions about their genuineness. For example the 2014 newspaper he claimed to have recently obtained, which includes an article describing the attack upon the applicant and his partner, contains features which strongly suggest it is not a genuine newspaper.  The applicant was also not able to reasonably explain how he was able to obtain the 2014 newspaper.  The Internet article which refers to the attack upon him and his partner also has various versions with dates which cast doubt upon its authenticity.  The article is now readily found when using the applicant’s and his partner’s names as search terms so it remains inexplicable why the article was not uncovered during searches made before the previously constituted Tribunal.

10. The copies of emailed threats submitted by the applicant also contain details which are not consistent with the applicant’s claims regarding his family and his problems in Cameroon.  He had made no earlier mention of his family being threatened and assaulted by people after he left Cameroon, because he is gay.  According to the applicant’s publicly available social media site one of the named people, [Mr S], who is purported to be writing death threats to the applicant also appears to be a current social media friend of the applicant.  The applicant’s claims of estrangement from his family and friends in Cameroon also lacks support given the applicant has been sending money to both his brother and sister in Cameroon and his family are now willingly involved in the care of the applicant’s adopted daughter.  Further, the applicant appears to be social media friends with [his] sisters, his brother, and numerous people in Cameroon.

11. It therefore does appear that the applicant has provided some documents which lack authenticity and made claims which may, at least to some extent, be a misrepresentation of his life experiences in Cameroon.  However these things of themselves do not necessarily mean the applicant’s core claim to fear harm in Cameroon as a gay man is not credible.

12. The Tribunal has listened to a recording of the applicant’s interview with the department Delegate in which the applicant was reasonably forthcoming about his sexuality and his life experiences as a gay man in Cameroon.  The Tribunal has also read transcripts of the applicant’s three earlier hearings in 2017 with the previously constituted Tribunal and again, the applicant appeared readily able and willing to speak about his life as a gay man in Cameroon and in Australia.  He has also provided a recent Statutory Declaration in which he comprehensively and emotively writes about his realisation of being gay in Cameroon, life there as a gay man, and his reactions as a gay man upon arrival in Australia.

13. This leads the Tribunal to consider that the applicant’s lack of expression, and at times some belligerence, during his most recent Tribunal hearing may possibly be due to the very lengthy process and adverse outcomes he has experienced since applying for a Protection visa in 2014.  The Tribunal also accepts the professional evidence that the applicant is in poor mental health and has been suffering from serious mental health issues since arrival in Australia.  The Tribunal therefore finds it quite possible the applicant’s attitude at his recent hearing was a result of his mental health issues and his past adverse experiences and the delays in the determination system causing him to present somewhat negatively and tersely.

14. The applicant’s representatives have also adduced and submitted a great deal of evidence from professional psychologists, counsellors, church representatives, LGBTQI community representatives, and friends and supporters of the applicant who have each had close, ongoing and regular contact with the applicant over the many years he has been in Australia. They each provided unequivocal evidence that the applicant is a gay man.  Also submitted was written and oral evidence from another gay man from Cameroon who had worked as an advocate and activist for gay men [in] Cameroon.  He provided cogent evidence that he knew both the applicant and his former partner in Cameroon and identified them as gay men.

15. In the Tribunal’s view, despite the applicant’s somewhat unimpressive oral evidence in his most recent Tribunal hearing, the overwhelming evidence before it clearly supports the applicant’s claim to be a gay man.  Much of this evidence has a highly persuasive nature and quality. The Tribunal therefore accepts that the applicant is a gay man and lived in Cameroon as a gay man.

16. The Tribunal found the applicant’s evidence about the attack upon him and his then partner somewhat confused and contradictory, particularly in regard to the antecedents to the attack and as to what happened later at the police station and his transfer to hospital, and about how and when his partner died.  The extrinsic evidence he submitted, including photographs of himself in hospital with different limbs bandaged, the arrest warrants with differing dates, the funeral invitation to his partner’s family and friends organised just a few days after his death, a newspaper and Internet article with further questionable detail and aspects, all added some confusion to the claim.  However the applicant has been reasonably consistent about the nature of the attack itself and the Tribunal accepts it is possible and plausible that he and his partner would be attacked on the street in Douala in 2014 because they are gay.  The applicant also appeared to be quite emotionally overcome when speaking about the incident at his Department interview.  Despite some concerns the Tribunal cannot be confident that the assault did not occur and it therefore gives the applicant the benefit of the doubt that he and his partner were so assaulted in February 2014.

17. There is some uncertainty regarding the applicant’s claim to have adopted a baby in hospital after her mother died during childbirth.  The applicant has submitted that the nurse at the hospital helped him to register the birth of the child in his own name so that he could then take care of and raise her. The Tribunal accepts this as plausible, particularly given the name of the baby’s mother in the submitted Birth Certificate is an unfamiliar one.  While the issue of whether or not the applicant has adopted a daughter is not central to the applicant’s protection claim the Tribunal does accept that he has done so.

    Fear of Harm in Cameroon

18. The available country information, as set out above, clearly establishes that gay men in Cameroon can be subject to arrest, imprisonment, extortion and physical assault and that the occurrence of such harms is not infrequent.  Homosexual acts remain criminalised in Cameroon and the law prohibiting homosexual acts is reportedly enforced.  Homosexuals are also reportedly subject to significant levels of discrimination in accessing health care and other services if their homosexuality is known.  Both family and society can isolate and reject homosexuals making it difficult for them to access employment and accommodation without hiding their sexuality.

19. In such circumstances the Tribunal is satisfied that there is a real chance of serious harm, in the form of arrest, imprisonment, extortion, physical violence, and serious discrimination, to the applicant, as a gay man, if he returns to Cameroon.  The Tribunal considers that the essential and significant reason for the harm he fears is his membership of a particular social group, namely gay men in Cameroon.

20. The Tribunal is satisfied that the serious harm involves systematic and discriminatory conduct in that it will be done intentionally and selectively to the applicant as a gay man.

21. Both the state and society are sources of serious harm to the applicant so that there is nowhere in Cameroon that the applicant can relocate to to avoid the harm, and no available protection from the harm.

22. The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in Cameroon for reason of his membership of a particular social group.

    Section 36(3)

23. Cameroon is a member of the Economic Community of Central African States (‘ECCAS’).  Although ECCAS has a policy of free movement for citizens of its member states actual measures to enable this have not been enacted.[20]  Therefore Cameroon’s membership of EECAS does not give rise to a right for the applicant to enter and reside in any other member state. There is no other evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s.36(3) of the Act.

    [20] See e.g. IOM, 2019, ‘West and Central Africa: The regional migration context’, 11 January.

    CONCLUDING PARAGRAPHS

24. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).

    DECISION

25. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Melissa McAdam
    Member

    
    
    

Human Rights Watch, ‘No Protection from Group Attacks; Authorities Arrest, Detain Victims’, Human Rights Watch, 11 May 2022.