1917598 (Refugee)

[2020] AATA 1273

1917598 (Refugee) [2020] AATA 1273 (17 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917598

COUNTRY OF REFERENCE:                   Tanzania

MEMBER:Bridget Cullen

DATE:17 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 January 2020 at 4:51pm

CATCHWORDS

REFUGEE – protection visa – Tanzania – particular social group – drug mules – forced drug importation – fear of killing – criminal gang – fatwa against the applicant – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Tanzania, applied for the visa on 16 December 2013 and the delegate refused to grant the visa on 27 June 2019.

3. The applicant appeared before the Tribunal by videolink from Immigration Detention, on 2 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr and Ms A], who are friends of the applicant.

4. The applicant was assisted to give his evidence by an interpreter, proficient in the English and Swahili languages.  The Tribunal notes that the applicant, [Mr A], and [Ms A] communicate with one another in English.  The applicant indicated that he would let the Tribunal know if there was any portion of the proceedings he did not understand, or required the interpreter to communicate.  The applicant told the Tribunal that he had learned English for ten years, and if he “cannot understand it, I can ask interpreter to explain.”

5. At various junctures throughout the hearing, the Tribunal checked with the applicant that he understood the proceedings, and gave him the opportunity to clarify.  At the end of the hearing, the applicant confirmed that he understood all of the hearing.

   THE APPLICABLE LAW

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

7. 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).

8. 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.

9. The High Court has considered the Convention definition of refugee in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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’).

19. ‘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.

20. 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.

21. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

22. The issues arising from the Refugees Convention and the relevant provisions of the legislation that are required to be determined by the Tribunal are as follows:

    ·Is the applicant a person in respect of whom Australia has protection obligations under the 'refugee' criterion?; or

    ·Is the applicant a person in respect of whom Australia has protection obligations on complementary protection grounds?; or

    ·Is the applicant a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?

23. In considering these issues, the Tribunal notes that the 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'.

24. 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. Section 5AAA of the Act makes it clear that it an applicant's responsibility to specify all particulars of claim to person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

25. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    PROCEDURAL HISTORY

26. On 12 August 2009, the applicant was granted a [temporary] visa, for entry into Australia.

27. [Later in] August 2009, the applicant arrived in Australia at [a specified] Airport. A search of the applicant was conducted by Customs, who found the Applicant was carrying a package on their person. They were detained and interviewed by the Australian Federal Police, and subsequently arrested and charged with importing marketable quantities of a controlled drug.

28. [In] October 2010, the applicant was sentenced to [several years] imprisonment after being found guilty on the above charge. The sentence included a non-parole period of [period].

29. On release from prison on parole, [in] November 2013, the applicant was detained at [a detention centre]. The applicant applied for this Protection Visa on 16 December 2013.

30. The applicant was found to be owed protection under the complementary protection criterion, but was excluded by way of s.501 of the Act by the Assistant Minister at the time, [in] July 2015. The applicant sought judicial review of this decision, and [in] December 2016, the Federal Court of Australia ordered that the Protection Visa application be reconsidered by the Department.

31. On 2 April 2019, the applicant attended a Protection Visa interview and on 27 June 2019, a Delegate of the Minister of Home Affairs refused the visa, on the basis that Australia had no protection obligations to the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

32. The applicant is a Tanzanian citizen, with a wife, [and specified family members] residing in Tanzania.

33. The Tribunal in accordance with its obligations under s424AA of the Act, advised the applicant that it had access to the Departmental file, including the Character Assessment that was completed in relation to him with reference to s501 of the Act, by the Department. The Tribunal explained that although the Character Assessment contained some information about his protection visa claims, the Tribunal did not intend to place any weight on the conclusions made about the applicant’s character, for the reason that they were not relevant to the decision now before the Tribunal.

34. The Tribunal took great care to make sure that the applicant understood the information put to him in accordance with s424AA, using the interpreter, and having the applicant to repeat back to the Tribunal his understanding.   The applicant declined to apply for additional time to respond, and commented on the information at the hearing.

    Prior credibility issues

35. The Tribunal notes that a number of concerns raised with the applicant at hearing and discussed below are matters of concern that were previously raised by the delegate in a record of decision provided to the applicant and dated 27 June 2019. This record of decision was provided to the Tribunal by the applicant. Accordingly the applicant has been afforded an adequate opportunity to be prepared to answer questions relating to those concerns.

    The Tribunal’s assessment of the applicant’s credibility

36. The Tribunal's task of fact-finding may involve an assessment of an applicant's credibility. In this context, the Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility.

37. 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. Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

38. 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.

39. The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt' (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

40. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at 39:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

41. However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. In Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.” Nevertheless, as Burchett J counselled, in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], it is necessary to:

    …understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

1. The Full Court of the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.” On this point, the Tribunal also takes into account the comments of Professor Hathaway in 'The Law of Refugee Status' (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies (Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong (Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed)). In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

2. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:

   … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

   Mandatory considerations

3. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   The applicant’s claims for protection

4. The applicant told the Tribunal his story, and explained why he could not return to his home country.  He said that he needed to have an operation, and did not have money.  Eventually, a neighbour named “[Mr A]” heard his story, and referred him to some people who he said could help with money for both his operation, and his mother’s [health] issues, as well. He was referred by [Mr A] to a group called “ [Group 1]”. 

5. While he was still convalescing at home, the applicant claims that members of [Group 1] came to his home, and demanded his photo.  He went in to his house, and when he came back out with the photo, they told him they would come back with a job that he had to do in order to repay the money for the operation. When they came back, they took him away in front of his wife.  They then beat him, and forced him to swallow socks. He could only swallow one sock, so they forced him to put it in his “genital” and then told him to put his underwear back on, and gave him a passport and a flight ticket to Australia.

6. He got on the plane and was then arrested on arrival at [a specified] Airport, [in] August 2009, following a search by customs.  He was charged with importing a marketable quantity of a border controlled drug. [In] October 2010, he was sentenced to [several years] imprisonment, with a non-parole period of [period].

   The applicant’s claims of death threats, made to his wife

7. The applicant says that in 2012, while he was incarcerated, his wife received a telephone call telling her that she needed to give back the money, as “the business we gave to your husband didn’t reach to the destination.” He says that they told his wife they would try to kill him.

8. The Tribunal asked the applicant to explain how he communicated with his wife back in Tanzania whilst he was in prison.  He said that he could talk to her for about 6-minutes per week by telephone, but because of the expense, they would use letters.  He said that he “can’t tell how often I was getting those letters. Only what I know I have a big, big stack of letters from her.”

9. The Tribunal confirmed with the applicant that he had submitted only two of these letters to the Tribunal – one dated 3 February 2018, and a second dated 20 January 2014.

10. The letter dated 20 January 2014 reads as follows:

    Greetings, how is your condition.  Are you okay?  How are you going on in general?  Your children send their greeting to you.  On our side, we’re fine, but we are always hiding.  This is mainly caused by the fact that those people who used to chase you, it has now become worse.  After I received a mobile phone, they said that, ‘we gave money to your husband but he didn’t give it back.  We also gave him some goods to deliver and give us back the money but he didn’t.  Now the decision which we have taken is to kill him once he returns back.” 

    I tried to ask them who are they, and they told me that they are called [Group 1], dealing with drugs.  They said that their plan is to kill you and your family. 

    Also, that [Group 2], which helped you during the operation, they heard that you have been caught with drugs so they have decided that your judgement should be death penalty. 

    Yours

    [Name deleted].

11. The letter dated 3 February 2018 reads as follows:

    My name is [name] wife of [the applicant].  I have [specified children].  After the problems I returned home to live with my parents.  Having one parent died and the other parent took care of us.  I live with difficulties and survive from day to day with my children.  I am afraid because of my mental health.  I do not know which places are safe to live.  I am living now for eight years in fear. 

    I live in a country where they do not care of the children.  The information shown in the network (Data Bich). Made me go to the village to hide.  In this situation and trouble, I suffered psychologically. 

    The head of our family cannot come here due to the dangerous situation.

    Thanking you.

    Yours faithfully,

    [Name]

12. Although the Tribunal accepts that both the 20 January 2014 and 3 February 2018 letters have been translated by qualified interpreters, there is no supporting evidence to establish the basis for the information contained in the letter.  None of the applicant’s family members gave evidence.

13. The Tribunal raised with the applicant its concerns that, if he and his wife engaged in routine written correspondence as he advised, that there would not be more letters available to the Tribunal, about his wife’s concerns.  The applicant told the Tribunal that in her letters, his wife wrote to him about “how they were going to live” and “religious stuff”. 

14. The Tribunal queried the information provided by the applicant, asking him to comment as follows:

    “…if she was being threatened and worried that you might die that that is a topic of conversation that might have been in more than two small letters. 

    And

    “….I find it a bit surprising that there is not more written communication from your wife about these threats.  Because you said that you were in contact with her very frequently.”

15. The applicant told the Tribunal:

    “That was our relationship. So, when I was in jail and after jail, we were still sending each other letters, but the some of letters were only – were about our relationship, nothing else and so, they put the letters I got, those I gave to the department.”

    The applicant’s claims of a “fatwa”

16. The applicant told the Tribunal that he could not return home, as a fatwa had been issued by an Imam, calling for his death.  He did not answer the Tribunal’s questions directly about which Imam, or which Mosque, but avoided the issue and instead responded that “where you are caught with drugs you are killed.” 

17. Eventually, after being asked by the Tribunal multiple times if he could provide any further detail about the supposed fatwa, the Imam, or the recording of the fatwa, that applicant then responded that, “There are two Imams there. One is [name] and another one is [name].

18. The applicant told the Tribunal that he know about the fatwa as “Every evening there is information broadcast with the speakers from evening to eight o’clock and in that time my wife heard about me.”

19. As there is no written recording of the fatwa, or indeed any corroborating evidence of its existence whatsoever, save for the applicant’s own assertions, the Tribunal asked him to explain, given that the fatwa was issued some seven years, and there is no “written record of it and it happened in a different city from the city that your family now lives in, how would anyone even know that it was you that it applied to if you were to return?”

20. The applicant told the Tribunal that “To know about that they can know - they can get information through the social media or from newspapers and the newspapers, anyone can write down anything he wants.”

21. As the existence of the alleged fatwa is a critical component of the applicant’s case, the Tribunal provided the applicant with a further opportunity to explain and provide details.  The following exchange took place between the Tribunal and the applicant:

    MEMBER:  Do you have any information that’s actually happened [the fatwa] or are you speculating that that could happen?

    INTERPRETER:  I’ve got that information from my wife because with that information and the - she gave me that information.  She got - - -

    MEMBER:  Gave you what information?  What information did your wife give you and when?

    INTERPRETER:  So my wife gave me information about [Group 1] which was active at the time and about that information, groups when they give information in the air and they - it is why she called me telling me that if you come back your life will be in danger.

    MEMBER:  This is in 2012?

    INTERPRETER:  This happened in 2012, but even last year in 2018 she told me the same thing and they - we contact each other sometimes.

    MEMBER:  What did she tell you in 2018 and how?

    INTERPRETER:  We used the phone.

    MEMBER:  What did she say?

    INTERPRETER:  She said that those people are still looking for you and they - if you come back your life will be in danger.  Talking about [Group 1].

    [The Applicant]:  And [Group 2].

    INTERPRETER:  And also [Group 2].

22. The Tribunal asked the applicant how [Group 1], or [Group 2], would be able to identify him in Tanzania.  He said from the passport photo he had provided to [Group 1].  The Tribunal pointed out that this was one photo, and now quite dated.  The applicant never responded directly, and simply repeated that they had his photo.

23. The applicant claims that he cannot return to Tanzania because his life in his danger, and then claimed that he is also in danger in the neighbouring countries:

    “…because all these countries is corrupt. So, I not have any security for this country.

    I can’t live either in Kenya, either in Tanzania, either in Uganda.  They are countries of corruption.  So, even if I am in Tanzania, I can’t move from region to region, so anywhere I can go I should be in danger.”

24. The Tribunal is aware of the East African Community Treaty, which came into force on 7 July 2000, and allows movement of nationals between (as is relevant to the claims made by the applicant here), Tanzania, Kenya, and Uganda. Consequentially, the Tribunal asked the applicant if he was eligible to live in Kenya or Uganda.  The applicant, despite numerous opportunities to respond directly, would not give the Tribunal a clear answer to this question.

25. The following exchange took place between the applicant and the Tribunal in relation to his ability to live in either Kenya or Uganda:

    INTERPRETER:  So, as I said before, there is no security for me.  My life would be everywhere in danger, either in Kenya, either in Uganda.  I said before that, from the (indistinct) I got information that there was one man who was kidnapped from Tanzania and was found in Kenya.  Everywhere I lived, even I got to Uganda, they can come and find me there.  So, because there is no security in general.

    MEMBER:  I understand that you say that it is dangerous, but what I am asking you is if you could live there if you are eligible to live there as a Tanzanian citizen?

    INTERPRETER:  So, I can’t go there, even while I am here.  I have already been sentenced to death.  If I go there, they will catch me and make me to death.

    MEMBER:  I know you don’t want to go there, I know you say it is not safe to go there, but as a Tanzanian, you could go to Kenya or Uganda and live there.  Is that correct?

    INTERPRETER:  So, I can’t go and live there, because if I had to go there, someone would take me a picture and send it to the social medias, like Facebook, showing that this one, this man, is back here, is living here.  And anyone who wants to kill me will find me easy.

    The evidence of witnesses, [Mr and Ms A]

26. The applicant called two witnesses to give evidence on his behalf.  It is necessary for the Tribunal to outline their evidence, and the reasons that the Tribunal cannot place weight on it.

27. [Mr and Ms A] describe themselves as close friends of the applicant.  It is clear that they are humanitarians, and they describe themselves in the Hearing Response form in the following terms:

    “Personal friendship enhanced by long history of international and cross cultural experience, consultancy and counselling. Assisted to draft submissions in support of visa applications.”

28. [Mr and Ms A] did not appear in the Tribunal as “expert witnesses,” but as witnesses in the ordinary sense of the word.  They both accept the applicant’s claims, and say that they believe him based upon their own experiences.  The Tribunal asked them both whether they had any personal knowledge, based on events they’ve observed themselves, of the applicant’s claimed experiences in Tanzania, or circumstances with his family.  Both [Mr and Ms A] concede that they do not have personal knowledge, but have received all of the information they rely upon in forming their positive views from the applicant himself, in their personal conversations.

29. While the Tribunal accepts that [Mr and Ms A] are supportive of the applicant, the Tribunal is unable to place any weight on their collective evidence, which is by their own admission, of a hearsay nature only.  They are repeating assertions made to them, by the applicant, for the purposes of establishing the truth of same – that the applicant’s claims are truthful.  Whilst the Tribunal does not have to act in strict accordance with rules of evidence law, in circumstances where [Mr and Ms A] are not expert witnesses, and have no independent knowledge of the events they are giving evidence about, the Tribunal simply accepts their evidence as being a statement of support, from caring, but not independent, friends. 

    The irrelevance of “[Ms B’s]” protection matter

30. At the hearing, the applicant presented the Tribunal with a one page letter that relates a woman named “[Ms B] from [Country 1]” who he travelled from Tanzania to [Australia] with, prior to his arrest.  The Tribunal invited the applicant to explain how the letter was relevant.  The applicant suggested that the woman mentioned in the letter made an application for a protection visa, which was successful.  The Tribunal explained to the applicant that it had to make a decision about his specific claims, and did not consider that it could not access another person’s protection visa records, due to privacy.

31. Whilst the Tribunal acknowledges receipt of the letter, the Tribunal does not consider it to be relevant to the applicant’s claims here.  The Tribunal must make an independent decision in relation to the applicant’s claims, and cannot consider evidence from another person’s protection visa file that is not before the Tribunal. 

    The applicant’s claims are implausible

32. The Tribunal considers the applicant’s story to be an implausible one in several respects.  Firstly, the Tribunal does not accept that the two letters the applicant says are from his wife, are evidence that his life is in danger, or that [Group 1] actually contacted his wife. 

33. The Tribunal does not accept that this evidence, as the Tribunal considers that if the threats were genuine, and if his wife had been contacted by any persons threatening his life, that there would be more than 2 letters, brief in nature, over a lengthy period of time, addressing this topic. The Tribunal does not accept that these letters are evidence that his life is either in danger, or that his wife has been contacted, in circumstances where the applicant’s own evidence is that he and his wife communicated in writing very frequently. 

34. The Tribunal did not hear from the applicant’s wife, or children.  As he claims to be in frequent contact with his wife, and gave evidence that she has a mobile phone, he could have sought for her to give evidence to the Tribunal, and yet did not do so.

35. The Tribunal does not accept that a fatwa was issued in relation to the applicant.  There is no credible evidence to support this.  The applicant’s own evidence lacks detail, and only after multiple opportunities, did the applicant provide the names of the Imams he says were involved in the fatwa.  The applicant’s story, and the manner in which it was given, lacks any credibility and is non-specific. He did not answer the Tribunal’s questions directly, and provided scant detail in all respects about every aspect of his claim.

36. As the Tribunal does not accept that a fatwa was ever issued in relation to the applicant, it follows that the Tribunal also does not accept that it was ever communicated via loud speakers at a mosque.  Hence, there is no prospect in the Tribunal’s view of a fatwa or the applicant’s failure to have been successful in delivering drugs for [Group 1], to pose a danger on his return to Tanzania.

37. In the same vein, the Tribunal does not accept that there are any potential security problems for the applicant, via social media or any other means.  The applicant has now been in Australia for more than ten-years.  The Tribunal does not accept that the applicant’s family has been contacted, nor that he is likely to be at risk on return, as a consequence of having been a drug mule. 

38. With respect to the potential danger posed to the applicant as a result of his status as a drug mule, the Tribunal has had regard to the country information contained in the delegate’s decision record, as provided to the Tribunal by the applicant.  That information indicates that it is unlikely that either [Group 1], or the Tanzanian authorities, would be interested in the applicant on his return to Tanzania. 

39. The Tribunal accepts the following aspects of the applicant’s claims:

    ·That he is a citizen of Tanzania;

    ·That he was utilised to smuggle drugs to Australia, was intercepted on arrival in [Australia], and was convicted and sentenced to imprisonment; and

    ·That he has a wife and children in Tanzania.

    ISSUES

    Issue 1 – Is the applicant a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?

40. The Tribunal finds that the applicant is a citizen of Tanzania, and has assessed his claims on that basis. The Tribunal also finds that the applicant is outside his country of nationality, Tanzania.

41. Having considered the applicant’s claims, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in his home country due to reasons of religion or membership of a particular social group, such as being a drug mule. The Tribunal has found that the applicant and has family have not been threatened by members of a drug syndicate, and that a fatwa has not been issued calling for the applicant’s death.

1. It follows that the applicant is not a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Issue 2 – Is the applicant a person in respect of whom Australia has protection obligations on complementary protection grounds?

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). In so doing, the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tanzania, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1). The applicant claims that he will be killed on return to Tanzania as a consequence of his involvement as a drug mule.

3. Having regard to the definition of significant harm in ss.5 and 36(2A) of the Act, the Tribunal accepts that death amounts to significant harm as defined by s.36(2A).

4. However, as already explained in these reasons, the Tribunal does not accept the applicant’s claims that he and/or his family have been threatened with harm, nor does the Tribunal accept his claims that a fatwa was issued calling for his death.  Therefore, the Tribunal is not satisfied that the applicant has a real risk of being subject to significant harm should he be returned to Tanzania.

5. It follows that the Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   Issue 3 – Is the applicant a member of the same family unit as a person in respect of whom Australia has protection obligations and that person holds a protection visa of the same class?

6. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2)(b) or (c).

7. Having concluded that the applicant does not meet the criterion in s.36(2)(a), (aa), (b) or (c), the applicant does not satisfy the criterion in s.36(2) of the Act. As the applicant does not satisfy any of the criteria for a protection visa, he cannot be granted the visa.

   DECISION

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

   Bridget Cullen
   Member