1926675 (Refugee)

[2023] AATA 2346

1926675 (Refugee) [2023] AATA 2346 (17 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rachel Koo

CASE NUMBER:  1926675

COUNTRY OF REFERENCE:                   Cameroon

MEMBER:Tania Flood

DATE:17 April 2023

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 17 April 2023 at 11:42am

CATCHWORDS
REFUGEE – protection visa – Cameroon – Federal Circuit Court remittal – political opinion – membership and activities in opposition political party – district office holder – threatened, attacked, detained and tortured, family assaulted and house burned, and arrest warrant issued – brother organised visa and flight and applicant travelled on own passport after paying bribes – mental health and memory difficulties – difficulty in obtaining supporting documentation – authenticity of newspaper article – country information – ongoing political and military conflict – treaty right to enter neighbouring countries limited in practice – decision under review remitted

LEGISLATION
Migration Act 1961 (Cth), ss 36(2)(a), (3), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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, arrived in Australia [in] February 2014 holding a [Specified] visa.  The applicant applied for the visa on 19 March 2014 and the delegate refused to grant the visa on 17 April 2015.

3. The applicant sought merits review of the decision and on 4 November 2016 a differently constituted Tribunal affirmed the decision.

4. The applicant appealed to the Federal Circuit Court on 23 November 2016 and on 29 August 2019 the matter was remitted by judgment which notes: “The Tribunal appeared to accept that a newspaper article, which referred to the applicant’s role in the SDF, was published in 2016. There was a claim which clearly emerged, being whether the applicant faced a real risk of serious harm or significant harm by reason of the publication of the newspaper article in 2016. This claim was not subject to dispositive findings by the Tribunal and therefore a jurisdictional error had occurred”.

5. The applicant was invited to appear again before a differently constituted Tribunal on 6 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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’).

11. 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.

12. The issue in this case is whether the applicant fulfils the criteria for a Protection visa.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Summary of claims

14. According to information contained in his application for a Protection visa, the applicant is a [Age] citizen of Cameroon. He was born in Douala, Littoral in Cameroon. Prior to arriving in Australia the applicant lived at [Address] in Cameroon from [Birth] until a date not specified in the visa application.  The applicant studied at [Primary School] from [Year] until [Year], and at [Secondary School] from [Year] until [Year]. He worked as a shopkeeper from [Year] until 2013.

15. The applicant made the following claims in his protection visa application form dated 19 March 2014:

    -The applicant left his country to save his life and the lives of his family.

    -He experienced harm as he had been hit with guns, tortured in the prison and the prison conditions were deplorable. He says he suffered harm from police, military, undercover police and CPDM members.

    -He fears that if he returns to his country he will be killed or kidnapped.

    -The applicant fears harm from police, military, undercover police and CPDM members.

    -He suggests that undercover police are looking for him and have told his colleagues that he was lucky to escape.

    -On whether authorities would protect him were he to return, he indicates in the negative and states that he is fighting against them.

    Protection visa interview

16. The applicant attended a protection visa interview with the Department on 22 September 2014 during which he maintained he continues to fear harm from the Cameroonian authorities on account of his political opinions. 

    Documents submitted to the Department

17. In support of his Protection visa application the applicant provided the following documents:

    -Arrest warrant for the applicant dated 13 November 2013 (with translation)

    -An undated statement by the applicant which provides:

    ·   He fears that if he returns to Cameroon he would be seriously harmed by the police and the members of the Cameroon People's Democratic Movement (CPDM) because of his political activities and involvement with the Social Democratic Front (SDF) opposing the CPDM.

    ·   He lived in [District] until leaving in 2014. He has a wife and [children]. His niece, currently [Age] years old, has been dependent on him since her father (his older brother) passed away when she was 4 or 5 years old. He has not had any contact with them since he left Cameroon. In Cameroon, he was self-employed as the owner/[Occupation] of [a] store. He imported second hand goods from [Country 1] and new products from [Country 2] and sold them.

    ·   He joined the SDF in about November 2010. He was actively involved from the first day assisting in various administrative duties such as organising political meetings and arranging meeting venues, carrying the SDF flag to official meetings and training new recruits how to carry the flag, various promotional activities such as distributing flyers and encouraging people to join, as well as training new recruits. He tended to these duties after closing his shop and committed at least one hour per week.

    ·   About two or three months after joining the SDF he was appointed the [Official 1] of the Social Democratic Front Youth in [District] by the [Official 2].

    ·   In May 2011, when the [Official 2] of the Social Democratic Front Youth passed away, he was appointed the [Official 2] in his area and was proactive in promotion and recruiting members. He spent at least one day a weekend devoted to the recruitment. Prior to this, the party held meetings indoors and didn’t recruit actively. He decided that it was important to go to where the young people were and recruit them. This exposed the party and created a lot of hatred toward the applicant in the local police and CPDM. The police and the military started to threaten him, indicating that if he did not stop recruitment, they would harm him.

    ·   In June 2011, he organised a meeting outside the town [Venue] to speak to youths. During the meeting, they were attacked by the police, military and undercover police. They beat and tortured the applicant and he lost a tooth. They arrested and detained the applicant for a month spanning June-July 2011, during which he endured poor conditions and torture.

    ·   He was released as one of his family friends was the police commissioner. He was forced to sign a statement stating that he would not organise meetings, under threat to himself and his family.

    ·   After he was released, he was hospitalised for two months. He was determined to carry on political activities. On recovery he took a step back citing safety concerns but retained the [Official 2] role. He returned to full time duties in October 2011 after being encouraged by party members. He made speeches at events, promoted the party and recruited members, distributed pamphlets and sold party t-shirts, however only indoors.

    ·   In January 2012, he organised a secret party meeting. He made speeches to encourage the members to peacefully to overthrow the current government and to recruit more members. Undercover police interrupted the meeting to arrest the applicant. He ran away and hid at a friend’s house.

    ·   He was informed that the police went to his home when they couldn't capture him at the meeting. They assaulted his wife and molested his children to discern his whereabouts. When this failed, they took his wife and children into custody at the police station. They continued to enquire as to his whereabouts and his family was released after a week. The applicant remained in hiding at his friend’s house during this time.

    ·   At the same time CPDM members torched his house. His neighbours told him that the people who took his wife and children were the same people who started the fire. He could not report the incident to the police or any of the authorities as they were the ones that wanted him dead.

    ·   The applicant decided to keep a very low profile but maintained his role as [Official 2] of SDF Youth. In November 2013, the party found out that the President of Cameroon was coming to Douala for a bridge inauguration. The applicant rounded up members and youths who were unhappy with the government due to lack of jobs and high taxes. They organised the t-shirts and pamphlets with the protest slogans. They messaged by phone to arrange a meeting on [Day] November 2013.

    ·   They were planning to divide the group into three groups. They met in public as there was nowhere large enough for the people to all gather and due to the presence of new recruits. Military and police, numbering about 20, came to arrest the applicant. The applicant escaped again. He fled to a village nearby and hid at a house of a former customer. This former customer, on a visit to Douala, discerned that there was a national arrest warrant out for the applicant and informed the applicant. The applicant decided to leave Cameroon.

    ·   He contacted a friend and asked him to sell everything in his shop to finance his departure. This came to $AU 15,000 and was sent through his wife, then the former customer, then to the applicant. He applicant’s Australian resident brother arranged his tourist visa. The applicant passed through three customs control stations and paid the officers at each station who had papers regarding his arrest warrant. He paid AU$4,000-5,000 in bribes at each station.

    ·   The applicant states SDF members and activists in Cameroon today remain subject to constant harassment, intimidation, arrests, forced detainment and torture at the hands of the police and the CPDM. He believes he will be harmed if captured by the police or Cameroon authorities because of his role, and active involvement with the SDF. The authorities including the police continue to routinely restrict demonstrations and meetings held by the SDF, as well as arresting the members of the SDF without a fair trial and torturing them while in detention.

    ·   He fears for his family especially because the police and the CPDM member know them and have harmed them in the past to find out where he was hiding. If the authorities find out he has left the country, they will certainly harm his family. If he is returned to Cameroon he is worried he may be subjected to serious harm including forced detention, harassment, intimidation, abuse and torture, on the basis of his political activities and standing with the SDF. He is afraid of this harm from the police, the current authorities and regime and the members of CPDM.

    ·   He would not be protected by anyone, including the authorities, because the current authorities in Cameroon are the government and part of the CPDM party. As the SDF is opposed to the current government and the authorities work to eliminate the opposition to the government, the government cannot provide him safety. There is also a police warrant for his arrest. He will be targeted because of this warrant and his previous history of capture by the police, as well as his political activities and public standing as the [Official 2] of the SDF Youth. The authorities will be able to identify him from the warrant and his public profile and once placed in custody, the applicant is certain he will be killed as he has signed a letter guaranteeing as much.

    ·   He cannot return to Cameroon to live in another village because as soon as he arrives he will be arrested and detained by the authorities.

    -A statement by the applicant stamped 15 March 2014 and duplicated 20 March 2014 states:

    ·The applicant joined the SDF on 10 February 2010. He organised meetings, carried the SDF flag, arranged chairs, gave speeches and motivated persons to join the party. He was appointed as the [Official 1] of the youth SDF in [District]. After 3 months the [Official 2] of the youth in his area passed away and he took on the role. His activities engendered a lot of hatred in the police department in my area and with the CPDM who wanted to kill the applicant.

    ·He organised a meeting to speak to the youth about the state of the country. This occurred outside at a [Venue]. They were assaulted by police, military and undercover police and he lost a tooth. He was captured and detained for one month in poor conditions. He was released as one of the ‘family friends’ was the police commissioner. He signed a form indicating that if he organised such a meeting again he would be killed, along with his family.

    ·He stayed in hospital two months to recover from his imprisonment. On release he resolved that he would rather live with dignity than live with dishonour. He persisted in his duties, such as making speeches, distributing pamphlets, selling shirts. They planned another hidden meeting in November 2011 where participants were encouraged to overthrow the government. Police raided this meeting and the applicant escaped.

    ·The police beat his wife, molested his children and demanded to know the applicant’s whereabouts. His family was taken into custody. The CPDM torched his house and his possessions were lost.

    ·The applicant remained quiet for a time but decided to die as a martyr for the country. His party boycotted the president’s visit to Douala and the applicant called people together in November 2012 to coincide with this visit. This meeting was raided by authorities and the applicant went into hiding again. He got a connection from a party member and that helped him get the visa to Australia.

    -A submission from the representative dated 27 Oct 2014 which provides:

    ·The Applicant joined the youth wing of the Social Democratic Front (SDF) Party in 2010 when he was [Age] years old. The Applicant has stated that the youth wing of SDF consists of members who are aged between 18 and 35. Those who are over the age of 35 join the ‘succession’ which is the main party. The Applicant attended the offices of SDF in [District] to join as a member. [District] is a district of Douala. The Applicant was not required to attend SDF’s headquarters to join as a member and furthermore, SDF’s headquarters are not located within Douala. The Applicant believes that the word “headquarters” used in his statement of claims was likely due to a misinterpretation or misunderstanding between the Applicant and interpreter when drafting his statement. The Applicant has never been to the SDF’s headquarters.

    ·The Applicant has now provided a copy of a warrant for arrest issued [in] November 2013 (attached) and English translation. The Applicant has also asked a friend to try to obtain his SDF membership card in [District] but has not yet heard back from his friend as to whether he has been able to do so.

    ·In their most recent World Press Freedom Index, Reporters Without Borders ranked Cameroon number 131 out of 190 countries (with number one being the most free and number 190 being the least free).

    ·Similarly, in its 2013 Country Report on Human Rights Practises, the United States Department of State stated Government officials threatened, harassed, arrested, and denied equal treatment to individuals or organizations that criticized government policies or expressed views at odds with government policy… Journalists and media outlets practiced self-censorship.

    ·It is submitted that the above information supports that the Cameroonian media’s capacity to provide comprehension reporting is severely restricted due to the harsh measures implemented by the government against those they deem to be critical of their policies. As the Applicant was detained due to his political support of the SDF, it is plausible that his mistreatment was not reported by any journalist or media outlets due to the fear of what repercussions they may face.

    ·The Applicant did not make any of the arrangements for his Australian visa which was granted on 23 December 2013. Further, the Applicant was not aware that his brother ([Mr A]) had applied for a visitor visa on his behalf until about late January 2014. At this time, the Applicant had been arranging to try to flee Cameroon and received approximately $15,000 from selling the contents of his shop. When [Mr A] told the Applicant that he had applied for a visitor visa on his behalf, [Mr A] also told the Applicant that he had booked a flight for him [in] February 2014.

    ·Knowing that he had a national arrest warrant against him, the Applicant asked a friend to find him someone to assist through the check points in the airport. The Applicant’s friend paid a police officer who then made arrangements for the Applicant to pay bribes at each of the customs control stations throughout the airport.

    ·When the Applicant provided his initial statement of claims, he had not yet sought any legal advice and thus provided information which he believed would be relevant to his PV application. Once the Applicant had sought advice from a lawyer, he realised it was important that he also detailed how he was able to leave Cameroon and explained that he was required to provide bribes. Furthermore, despite having to pay these bribes, the Applicant left Cameroon ‘legally’ as he travelled on his genuine passport and held a valid visa for Australia. The Applicant’s limited knowledge of what information was expected from him in his PV application (prior to seeking legal advice) should not adversely affect his credibility especially as the Applicant clarified how he was able to leave Cameroon at the earliest possible opportunity.

    ·Since arriving in Australia, the Applicant has suffered from significant memory loss problems, anxiety and has trouble sleeping. The Applicant is currently being treated by his general practitioner for these issues and has been prescribed Temazepam to help reduce his anxiety and insomnia. The Applicant is also in the process of being assessed by [Organisation 1] which unfortunately has been delayed due to the Applicant forgetting his appointment time.

    ·During his PV interview, the Applicant’s memory difficulties were exacerbated due to the stress he was feeling at the time and consequently, he found it difficult to answer specific questions in relation to the SDF during his PV interview. The Applicant’s current memory difficulties which resulted in his inability to recall specific answers in relation to SDF should not adversely impact his credibility.

    Delegate’s Decision

1. After consideration of the claims and evidence the delegate concluded that the applicant did not hold positions within the SDF Youth as claimed or that he was a member of the SDF.  Further the delegate did not accept that the applicant was arrested and detained as claimed or that he was pursued by the Cameroonian authorities for reason of any political activity.  The delegate also did not accept that a warrant for the applicant’s arrest exists. 

   Claims and evidence submitted to the differently constituted Tribunal

2. On 27 April 2015 the applicant lodged an application for review of the Department’s refusal decision in respect of his application for a Protection visa.  He provided a copy of the Department’s decision to the Tribunal for the purpose of the review. 

3. The applicant also provided a statutory declaration dated 3 August 2016 in which he states:

   -He submitted his application for a protection visa and his first statement without the help of a lawyer.

   -His first statement was written with the assistance of [Organisation 2].

   -His first statement reads “so that is how I got a connection from a party member that helps me to get the visa and I found myself here in Australia”.  He states this is not correct.  He said he was asked by [Organisation 2] how he came to Australia and he told them “through a friend”.  By that he meant his friend who was a senior police officer helped him to come to Australia by helping him pass through airport security without being detected.

   -   He did not directly pay the security staff at each station himself.  His friend the senior police officer drove him to the airport and told him to wait in the car.  He then went out and negotiated with the police while he waited in the car.  He had a photocopy of his passport and his electronic visa. His friend paid the three bribes at each station then came back to the car to get him.  He then walked through each security check point with another policeman.  His passport was stamped at the first security point then the policeman took his passport and escorted him through the other two security points right onto the plane. 

   -   He had tried to do this a previous time on or around [Day] January 2014.  He waited in the car while his police friend went into the airport.  On that occasion he could not succeed in paying the bribes because a police officer more senior to him was at the airport.  He never even entered the airport on that occasion.  He missed the flight.

   -   His second statement was written with the help of a lawyer at [Organisation 3].  In paragraph 6 of his second statement he said “I joined the SDF on or about November 2010 at its headquarters in Douala” but by that he meant he joined the SDF in [District] which is [a] district of Douala.

   -He had a strong motivation to join the SDF.  He had two shops and was doing well but the government incorrectly said he had to pay an import duty which was very high and so he refused.  The government closed down his shop and he lost everything in the shop. He was very upset and angry about this and some clients advised him to join the SDF and try to make a change.

   -The only reason he was ever released from detention is because of the actions of a family friend who is a senior police officer. 

   -What he meant by his previous reference to overthrowing the government is that he encouraged people to peacefully protest and strike without violence or weapons and to make changes to health and education and people’s lives where they could. 

   -When he sold everything in his shop it was to get enough funds to leave Cameroon.  At that point he intended to flee to [Country 3] because of the arrest warrant out against him.  He did not know that his brother had organised a visa or flight for him at that time.  Once he found out he decided he needed to take the opportunity to flee to Australia.

   -In his second statement he explained how he paid AU$4000-5000 in bribe money at each custom control station at the airport.  He clarifies that he paid the bribes via his police commissioner friend.

   -He refers to new evidence he has obtained including his SDF membership card, an extract from [a Cameroonian newspaper] titled “[Title]” dated April 2016, a medical certificate from the District Hospital of [Suburb] dated 4 July 2011, hospital discharge records from the hospital dated 5 September 2011 and medical prescriptions prescribed by [Dr B] from the District Hospital of [Suburb].

   -He states that he faced difficulties obtaining documents as he has not been in contact with his family since he left and he could not get anyone to go to places like the hospital to get his medical records or to get evidence of his SDF involvement.  Eventually he contacted his friend [Mr C] and asked him to try to find his SDF membership documents.  He asked [Mr C] to try to contact [Mr D] who was in the under section of the main SDF party and organised membership registration, to confirm his position and membership.  However, [Mr C] could not find him.  He later asked [Mr C] to try to contact his brother or sister or other family members to see if somebody can give him something with his name and SDF membership on it.  [Mr C] went to his mother’s house and to his sister’s house in Douala.  His sister had passed by his old neighbour in the streets of Doula and she told [Mr C] that neighbour had tried to save some of the things from the fire.  He was able to save the documents referred to above and his sister kept the documents until [Mr C] went to see her.

   -He was able to get the documents referred above with the help of contacts in the Cameroonian community in Sydney.  The [Official] of [an] Association in Sydney, [Mr E], asked around if anyone was going to Cameroon soon who could get the documents.  [Mr E] found a man named [Mr F] (who he knows by the name of [Nickname]) who was going to Cameroon to visit his family.  He asked [Mr F] to go to Douala fruit market where they are selling food and to ask around there for his friend [Mr C].  He told [Mr F] exactly where to go in the market and he told him that if [Mr C] was not there to leave news for him that someone who knows him from Australia wants to meet him.  [Mr F] told him that when he could not find [Mr C] that day he left his phone number with [Mr C]’s neighbour at one of the food stalls in the market.  [Mr F] obtained the documents and gave them to a friend in Sydney who gave them to him on or around 12 July 2016.

   -He repeats he has persistent health problems from his mistreatment and torture in the police cell.  This includes problems sleeping and memory problems.  He attaches copies of recent medical reports.

4. A submission made on the applicant’s behalf dated 4 August 2016 provides background information and repeats the applicant’s claims in respect of his political involvement in Cameroon.  Included in the submission are extracts from country information reports about the treatment of political opponents in Cameroon and the treatment of failed asylum seekers.  It is submitted that the Tribunal should not make an adverse finding on the provision of new evidence at this later stage as it was not possible for him to access the documents without putting friends and family in grave danger.

5. On the veracity of the [Newspaper] article it is submitted that [Newspaper] is a French-language Cameroonian newspaper that appears to be published monthly.  The newspaper does not appear to have an online version however the paper’s existence is confirmed through its mention in various sources which are referenced.  Further, the director of the paper is [Mr G] who maintains a personal [Social media] page on which he regularly posts photos relating to the newspaper.   The applicant submits that the article supports his claims of not only his position with the SDF youth but also the extent to which he has been persecuted because of it.

6. It is submitted that the nature of the applicant’s injuries and beatings in prison are consistent with country information and a USDOS report is referenced in this respect.

7. The applicant’s claims in respect of his knowledge of his brother’s initiative to secure him a Visitor visa are repeated and it is submitted that his evidence is supported by statements from his brother and his brother’s wife.

8. Regarding his departure from Cameroon it is submitted that the applicant did not pass through security on two separate occasions.  Rather, his first attempt to board was stymied while he was waiting in the car of his police friend because more senior officers were at the airport on that occasion who his friend could not bribe.  It is noted that the information relied on by the decision maker in regard to why the applicant did not board the [January] 2014 flight is based on a record of conversation between [Ms H] and a Department of Immigration and Border Protection staff member, [Ms I], on 27 January.  The record states “received a call from [Ms H] – [Telephone number] stating that PA was refused boarding on [Airlines] because he did not have a visa label”.  The applicant states he only went through airport security once.

9. Reference is made to paragraph 15 of [Ms H]’s attached statutory declaration and attachment “BB-4” being email correspondence between [Ms H] and [Mr J] from the Australian Consulate in [Country 4].  In this correspondence, [Mr J] queries the applicant’s refusal to board as being a visa label issue (as no visa label was required) and suggests there could be another reason the applicant did not board.  It is submitted that [Ms I]’s record is a mere note of conversation with [Ms H] who did not actually know the reason the applicant did not board his flight.  It is submitted that this Department note of the telephone conversation should not be relied upon as an accurate record of the actual reason the applicant did not board the [January] flight or as evidence that he went through security at Douala airport twice.

10. It is submitted that the fact the applicant did not mention his failure to board the first flight until his Department interview should not adversely affect his credibility.  When speaking to [Organisation 3] lawyers during the preparation of his statement the applicant was advised to account his departure of Cameroon not his failed attempts to do so.  Further, language barriers, the use of volunteer interpreters and insufficient time should not weigh against the applicant’s credibility.   Country information is referenced which supports the applicant’s claims of being able to leave Cameroon by bribing security even with an arrest warrant against his name.

11. On 24 August 2016 the Tribunal received a post-hearing submission.  It is noted that the Tribunal member raised a number of concerns at the hearing under section 424AA of the Act which the applicant has chosen to respond to in writing.

    ·Regarding the applicant’s sponsored visitor visa application, it is noted that the Tribunal Member referred to Department notes regarding the sponsored visitor visas applied for in 2012 and 2013, which indicated certain documents were provided in the applications. Namely, in relation to the visa application in late 2013, the Applicant's passport, birth certificate, ID card and employment reference. In relation to the visa application of late 2012, the Applicant's birth certificate and passport were provided. The Tribunal Member found this to be inconsistent with the Applicant's statements he had no knowledge of the applications made which caused the Tribunal Member to question the Applicant's credibility.

    ·The Applicant reiterates that he did not have knowledge of either of the applications applied for on his behalf by his brother [Mr A] until after the visitor visa was granted. The Applicant recalls that [Mr A] had asked for passports and documents from a number of his family members but didn't specifically question why he was providing them.

    ·The Applicant refers to his brother [Mr A]'s evidence at the Tribunal hearing where under oath, [Mr A] indicated he did not tell any of his family members when he applied for visas for them due to him having many family members who would want to come to Australia and because favouring one family member over another would create conflict. [Mr A] asked for documents from all his family members, not just [the applicant]. While there was some discussion with his family about bringing his mother to Australia, [Mr A] decided who he would make applications for after he received documents from everyone and without prior discussion to avoid family conflict.

    ·[Mr A] said he ultimately decided to sponsor [the applicant] as he was the youngest male, could help out around the home and would be the easiest to accommodate as he could sleep on the couch in their small unit in Sydney. [Mr A] informed [the applicant] he had successfully applied for a visa for him around the time [Mr A] was planning to go to Cameroon himself to [do a job task]. Neither [the applicant] nor [Mr A] recall whether this communication occurred while [Mr A] was in Australia or while he was in Cameroon as it was done via telephone. [Mr A] does not recall telling [the applicant] about the initial 2012 application which was denied and believes he only told [the applicant] about the 2013 visa once it was already approved.

    ·The Applicant submits his elder brother [Mr J] organised documents to send to [Mr A]. The Applicant recalls providing his passport to [Mr J] who sent copies of both passports to [Mr A] at the same time. [Mr J] also provided the employment reference from their family shop to [Mr A]. The Applicant submits his birth certificate was kept at his mother's home, along with the rest of his family's birth certificates and he does not recall providing this to [Mr J] to give to [Mr A]. The Applicant submits it is likely [Mr A] was given his birth certificate by his mother, along with all other family member's documents, which is why he was unaware they were provided. The Applicant's memory in regard to this is understandably unclear, predominantly due to [Mr J] being the person who had taken responsibility for providing documents to [Mr A].

    ·The Applicant submits in these circumstances, the provision of documents to [Mr A] was not an indication he was aware a visa had been applied for on his behalf prior to [Mr A] telling him it was approved.

    ·The Applicant further submits his credibility should not be impugned as the issues identified by the Member are more relevant to the state of mind of [Mr A] in obtaining the documents and making the application than the truth of any of the statements made by the Applicant.

    ·Regarding conditions while imprisoned, it is noted that the Tribunal Member referred to the Applicant's interview with the Department delegate concerning his imprisonment and visits by his elder brother and friends. The Tribunal Member found this was inconsistent with the Applicant's statements at the hearing, where the Applicant referred to his mother's visits and not his brothers. This caused the Tribunal Member to question the credibility of the circumstances of the Applicant's conditions in prison and the Applicant's credibility generally.

    ·The Applicant says he suffered persistent stress problems due to his treatment in prison which has affected his memory. This is evidenced by his prescriptions for antidepressant and anti-anxiety medications Cymbalta and Zoloft. The Applicant also has very little memory of his first interview with the delegate as his short-term memory has been affected. He has persistent memory problems even now at work. The Applicant is better able to think about who came to see him in prison now than at his interview with the delegate and believes that it was his mother who came to see him. The Applicant submits it is possible another family member such as his brother came to where he was imprisoned to support his mother, but the Applicant could not recall seeing them.

    ·The Applicant submits he had trouble with the interpreter provided at the Department interview. This is evident in the recording of the Department interview, where the Applicant indicates he does not understand on several occasions.

    ·The Applicant's credibility should not be diminished by a minor inconsistency regarding exactly who visited him while he was imprisoned, which was a time of severe stress and suffering in the Applicant's life. The Applicant submits the Tribunal should consider the vast majority of the Applicant's evidence which has been consistent.

    ·Drawing an adverse inference to the Applicant's credibility on this basis would be a disproportionate response in light of the magnitude of what is at stake for him if the Tribunal were to affirm the Department's decision. Date the Applicant closed his shop

    ·It is noted that the Tribunal Member raised a further issue arising from information contained in the interview with the delegate. The Tribunal Member noted the delegate said in the Applicant's late 2013 application for a visa disclosed the Applicant was working in his [shop] at the time of application. The Tribunal Member also indicated the Applicant's protection visa application itself stated he was working in the shop in 2013. The Tribunal Member also indicated there was information contained in the interview with the delegate where the Applicant said he was working in his [shop] up until around the end of 2013, but that he would go into hiding for 3 or 4 days then come back to work in the shop. The Tribunal Member also referred to information indicating it was after the incident in November 2013 the Applicant caused someone to sell the goods in his shop.  The Tribunal Member found this to be inconsistent with what the Applicant said at the hearing, where the Applicant claimed to have closed his shop in early 2012.  This inconsistency caused the Tribunal Member to question the credibility of the Applicant's claims regarding the periods of work in the shop, needing to sell or close the shop due to being in hiding and being wanted by the authorities and the Applicant's credibility generally.

    ·In regard to this issue, the Applicant submits he must not have completely understood what the Member was asking him at the hearing and he was confused at the time. The Applicant confirms the statements made about the periods of work and when in hiding which at the delegate's interview and in his initial application are correct.

    ·The Applicant submits he was able to work intermittently between 2012 and 2013. During this time, prior to November 2013, the police would come to his shop a few times a week to check if the Applicant was there as a way to intimidate him. The Applicant would spend most of his time in a premises across the road so he could check on his shop but so he was not there when the police came.

    ·It was only in November 2013 after the arrest warrant was issued the Applicant could not work at all. The Applicant reiterates when he found out about the arrest warrant he contacted [Mr C] who organised for the goods in his shop to be sold in order for the Applicant to have money to flee Cameroon.

    ·It should be noted that the delegate questioned the value of the arrest warrant due to it being a photocopy and not an original. However, we note there is country information which indicates a person who is the subject of an arrest warrant does not himself receive the warrant, nor is it handed to his relatives. The report in fact indicates that anyone presenting an original arrest warrant or search warrant for himself must have obtained the document illegally.

    ·Further, it is noted that the delegate and the Tribunal Member both queried why the Applicant was unable to get an attestation letter from someone at the SDF party. Although slightly dated, the United Kingdom Border Protection Agency's fact-finding mission to Cameroon stated that any attestations of membership from the SDF were only through the party President, Fru Ndi, due to the prevalence of fraud. It is therefore submitted that the absence of a letter of attestation for the Applicant should not evoke an immediate adverse finding as to his membership.

    ·The Tribunal Member also raised issue with the Applicant's inability to answer certain questions during the interview with the delegate:

    (i) the number of seats the SDF won in the 2013 election or the national assembly elections; (ii) where the SDF headquarters in Douala were;
    (iii) the meaning or contents of the declaration of principles of the SDF.

    ·The Tribunal Member found the Applicant's inability to answer these questions inconsistent with the Applicant's claims to have been a significant activist involved in the youth wing of the SDF, including giving speeches to members and organising rallies. This caused the Member to question the Applicant's involvement in the SDF or if the Applicant was involved, consider the Applicant had limited involvement.

    ·Further, the Tribunal Member found the text of the media article provided indicated a high level of involvement by the Applicant in the cause of the SDF party. The Tribunal Member found this to be inconsistent with the Applicant not having knowledge of these specific facts regarding the party.

    ·The Applicant submits as part of the youth section of the SDF, it was only necessary to know the key players such as the President and the Vice President of the SDF. As indicated by the Applicant in his evidence at the hearing, there was also much internal unrest and factional conflict within the party relating to Anglophone and Francophone divides. The party dynamics were complex and included many people.

    ·The Applicant reiterates the party structure includes the SDF base, sous-section and youth section. As [Official 2] of the youth section he took direction from [Mr D] who was a delegate of the sous-section of the SDF in the [District] region. The Applicant also undertook independent work for the good of the party, which concentrated on both general issues for the country but also particularly on youth issues such as youth employment and education.

    ·The Applicant submits while he was unable to answer the specific questions asked by the delegate at the time, his answers were also a consequence of the nature of the questions put to him at the interview. The Applicant submits he has much knowledge about the SDF party and did so at the time of his interview with the delegate, but his answers were dictated by the very specific and limited questions asked at his interview. If broader questions were asked, the Applicant would have had a greater opportunity to impart the knowledge he had about the SDF to the delegate, including information relevant to him in his position as [Official 2] of the SDF youth in the [District] region.  For example, the Applicant knew of information relevant to his district; he knew in 2011 in the Littoral region, 3 SDF deputies were elected including Joshua Osih, Jean Michel Nintcheu and Edimo Ndoumbe Oscar.

    ·Information from the Research Directorate, Immigration Refugee Board of Canada explains the decentralised and embattled nature of the SDF.  This, along with difficulties that accompany translation, goes some way to explaining the Applicant's inability to directly respond to the delegate's questioning as to where the SDF headquarters in Douala are located. The Applicant submits when he stated he joined the SDF in its 'headquarters', he was referring to joining in [District] which is [a] district of Douala.

    ·The Applicant further submits following the initial question in the interview with the delegate as to where the headquarters were, the subsequent questions focussed on where the Applicant had joined rather than the location of the headquarters.

    ·The Applicant also respectfully submits there were difficulties with the interpretation. At one point in these questions the interpreter says to the Applicant (in French):

    "Desolee, je ne comprends pas." ("Sorry, I don't understand.')  Following this comment by the interpreter, the Applicant clarified by headquarters, he was referring to [District], [a] district of Douala. However, this clarification by the Applicant was not translated. The interpreter translated only it was in a big suburb called [District].

    ·Further, when asked about the emblem at the delegate's interview, the translation is such that the Applicant was confused by the question more than by what the meaning of the emblem is itself.

    ·Finally, in regard to the number of seats won in the 2013 elections - the Applicant refers to the municipal elections at the delegate's interview when the delegate presses the Applicant about the Senate elections. The Senate is actually elected through an electoral college - 70 places are elected through the councillors (i.e. those that were elected in the municipal elections that the Applicant refers to) and 30 chosen by the President. The municipal elections were held at the same time as the National Assembly. This indicates confusion and lack of clarity in the questioning and reading of the Applicant's responses at the interview.

    ·It is requested that the Member place due consideration on the inherent difficulties in conducting an interview in a foreign language, and the danger of drawing adverse inferences as to the Applicant's involvement in the SDF in light of this.

    ·The submission makes a correction and provides an explanation regarding SDF membership cards.

    ·It is submitted that the Applicant would like to make a submission to correct and clarify paragraphs 29 and 40 of the Applicant's statutory declaration.

    ·It is noted that the documents were provided at the same time and thus all listed together in paragraph 29 of the Applicant's statutory declaration.  Paragraph 29 (a) relates to the SDF membership card and 29 (b) to the [newspaper] article.

    ·It is submitted that paragraphs 29(a) and 29(b) were erroneously included in paragraph 29 as they could not have been retrieved from the Applicant's home after it burnt down.  The Applicant apologises to the Tribunal for this unintentional error. It is submitted that the application should not be detrimentally affected due to this oversight.

    ·In relation to the April 2016 edition of Cameroonian [newspaper], the newspaper was not in fact retrieved from the Applicant's sister. Rather, the Applicant's friend [Mr C] was told by his friend that there was an article in the newspaper about the Applicant, which [Mr C] consequently bought from a store.

    ·In relation to the SDF membership card, this too was not retrieved from the Applicant's sister's home as initially stated. This is explained below.

    ·In relation to the second SDF membership card that was provided following the hearing, the Tribunal's comments that the SDF membership card has a different number and is issued on a different date to the original SDF membership card that was provided (i.e. dated 2011, the originally provided card being dated 2010) is noted. The Tribunal also noted the card is partially burned, with approximately one quarter of the card missing.

    ·The assertion the Applicant was required to prove was that the Applicant had been a member of the SDF, through the provision of the 2010 card.

    ·The Applicant told his friend [Mr C] to go to see [Mr D] who was a member of the sous-section of the SDF and the Applicant's direct contact to the higher sections of the party. [Mr C] went to see [Mr D] at one of the SDF offices in Douala, but when he went there he was told by his former secretary that [Mr D] had left the SDF about 6 months prior. [Mr D]'s secretary looked up the Applicant's name in the register of membership cards and confirmed the Applicant was in fact a member of the SDF. Once this was confirmed, [Mr D]'s former secretary issued [Mr C] with 2 replacement cards for the Applicant's membership with the party in 2010 and 2011. This explains the consecutive numbering on the cards - [Number 1] and [Number 2] - and the different dates (2010 and 2011).

    ·The Applicant submits the numbering on the membership cards is sequentially stamped based on all of the membership cards issued to all members as a means of identification for SDF administrators. The number on the card corresponds to the card itself, not the member, and is stamped at the time of issue.

    ·In a successful US appeal in 2002, Ethe issue of discrepancies with dates on SDF membership cards was dealt with. The case refers to a citizen of Cameroon and SDF member that had been granted political asylum in the United States, who said that it was common practice for members to pay dues for previous years. Another Cameroonian and SDF member stated that he knew several people whose cards were dated years earlier because they had paid the previous years' dues upon joining.

    ·As to the damage of the 2011 card the Applicant has instructed that he received all the documents listed at 4.2 together after [Mr F] travelled to Cameroon to retrieve them from [Mr C]. The Applicant admits to burning the card himself once he noted that his other documents were burnt in the fire but having done this he regrets his decision.  The Applicant appreciates that this was incorrect; however the disclosure of the card should be viewed as further evidence of the Applicant's SDF membership.

    ·Regardless of the Applicant's understanding of his actions at the time, the card evidences the assertion that he was a member of the SDF. The fact that [Mr C] went to the SDF offices in Douala and the SDF office was able to look up the Applicant's name and have his membership cards re-issued is unequivocal evidence of this assertion.

    ·The refusal of the Applicant's protection visa application placed in the Applicant's mind an emphasis on the fact he had submitted evidence to the Department that his home was destroyed in a fire, having made that statement regarding all documents previously in his possession. This is reiterated in paragraph 31 of the Applicant's statutory declaration where he states: “In my initial application for protection I said that there might be documents that supported my claim including press articles, photographs and membership cards. I knew these documents existed at one point in time, but I wasn't sure if I could get them as my house was burnt down. I could not access them before I made my application for protection for the reasons explained below.”

    ·The Applicant submits that this was not an attempt to mislead the Tribunal; rather it was an act of desperation. The Applicant apologises if the consequence of his actions was to mislead the Tribunal. We ask the Tribunal not to weigh that action against him. The Applicant emphatically appeals to the Tribunal to make its own inquiries with the SDF party for confirmation on his membership and his claims regarding the harm he has suffered. The Applicant seeks the Tribunal make contact with the SDF based in [District], Douala which has an office in town. While the Applicant's direct contact with the upper sections of the party, [Mr D], is no longer there, he is adamant there will be people in the party who know of his involvement and his plight in Cameroon.

    ·The Member acknowledged that there is a plausible risk that if the Applicant were to return to Cameroon he may be at risk by virtue of his status as a failed asylum seeker. However, the Member requested further country information to be provided on this point due to the existence of contrary country information.

    ·There is significant evidence to suggest that there is a real risk that failed asylum seekers will suffer persecution on arrival back in Cameroon.  Country information sources are referenced and summarised.

    ·The Australian case of 0808262 [201 OJ RRTA 233 ('0808262') considers at length the risk of persecution due to being a failed asylum seeker returning to Cameroon. In 0808262, it was held that the applicant's membership of a particular social group, that being SDF members who are failed asylum seekers, satisfied the test in Applicant S, and that the group was cognisable within society. Furthermore, based on external information, the Tribunal was unable to conclude that the possibility of the applicant being detained and questioned by authorities on return to Cameroon is remote or farfetched. The Tribunal found that by virtue of being an SDF member who was a failed asylum seeker, that there was a real chance of serious harm for the applicant.

    ·In 071505435, despite the applicant being a low-level activist, the Tribunal was unable to conclude that the possibility that the applicant would be detained and questioned by authorities upon her return to Cameroon as remote or far-fetched. The Tribunal concluded that there was a real chance of this occurring due to her membership of a particular social group (a political group), who subsequently apply for asylum in Australia. The Tribunal then considered whether the applicant in 071505435 would suffer serious harm and considered relevant United States Department of State reports of the Cameroonian government's poor human rights record, including unlawful killings, torture, life-threatening prison conditions, and the arbitrary and capricious nature in which the Cameroonian security forces, including the police, operate. Tribunal held that this information:  "clearly indicates that a person detained by security forces in Cameroon would be at some serious risk of being harmed and tortured whilst in detention……." In 071505435, the Tribunal was therefore satisfied that Australia had protection obligations in respect of the applicant.

    ·In the case of 071604056 [2007] RRTA 303, the Tribunal found that on the material before it, that the feared persecution was well-founded within the meaning of the Refugees Convention.

    ·Applying these external information sources and case law to the Applicant's situation, it is submitted that the Applicant faces a high risk of being detained and persecuted on return to Cameroon. This is on the basis of him being a failed asylum seeker generally, but the Applicant is placed at even higher risk due to his political opposition to the government, the fact that there is a warrant for his arrest, and the fact that he was able to leave Cameroon without detection by the Cameroonian police.

    ·The information indicates that the Applicant has a real chance of being singled out upon return to Cameroon, due to an actual or imputed political opinion – because they are viewed as political opponents (e.g. see African Echo, February 2005 article), or for "harming Cameroon's reputation abroad" (see the 2001 Danish Immigration Service Report, referenced in the Applicant's Outline of Submissions).

    ·The Applicant submits that the harsh conditions and unlawful torture and killing that occurs in Cameroon, as detailed in the United States Department of State reports referenced in the Applicant's Outline of Submissions, means that the Applicant faces a real risk of harm if he is detained upon arrival in Cameroon.

    ·The Applicant further submits that there is a high likelihood that the authorities will know he was a failed asylum seeker for a number of reasons, including the arrest warrant, his membership of the SDF, the fact that he has remained in Australia for two years following his visitor visa expiry, and the fact that his brother is very well known within Cameroon, and known to be living in Australia. Returnees known to be failed asylum seekers are at particular risk, as referenced in the external materials.

1. Regarding the Tribunal’s research request asking for information regarding the risk of harm on returning to Cameroon based on being a failed asylum seeker it should be noted that the researcher was asked to proceed on the basis that the returnee would not have an adverse profile on any other basis, including political involvement.  On 28 October 2016 the Tribunal received a further submission from the applicant’s representative responding to the independent information sourced by the Tribunal concerning the risk to the applicant due to being a failed asylum seeker.  It was submitted that it would be an incorrect assertion that the applicant has no adverse profile in Cameroon and therefore the question posed to the RRT research body was incorrect in relation to the applicant’s circumstances.  It is further submitted that regardless of the limited question put to the research body it is evident from the response that a risk of harm does exist for failed asylum seekers returning to Cameroon absent any other adverse profile in the country.

2. On 31 October 2016 the applicant’s representative emailed the Tribunal noting that his passport expired [in] 2015.  It is submitted that if the applicant were to be deported back to Cameroon he would be returning without a valid passport, likely with a laissez-passer.  This would raise further questions and interrogation of the applicant by the authorities upon his arrival in Cameroon.

3. The applicant provided the following documents to the Tribunal in support of his review application:

   -[Social media] screenshot of [Mr G], director of [Newspaper]

   -Screenshot of [Newspaper article], April edition. [Number]

   -SDF membership card w/translation

   -Copy of [newspaper article]

   -Cameroon Medico-Legal certificate w/translation

   -Medical report dated 4 July 2011, signed 5 September 2011

   -Pharmaceutical script dated 27 July 2016

   -Hospital admission letter – [Hospital] dated 6 June 2016

   -Patient Registration – [Hospital] dated 16 July 2016

   -Medical imaging report dated 23 May 2014

   -Medical report Oral Surgeon [Mr K] dated 12 November 2014

   -Medical report Oral Surgeon [Mr K] dated 21 July 2016

   -Travel movements for [Mr A] 2008-2013

   -Travel booking for applicant 24 January 2014

   -Travel itinerary for the applicant dated 26 January 2014

   -Travel booking for the applicant dated 4 February 2014

   -Travel booking for [Mr F]

   -Statutory declaration of [Mr A] dated 3 August 2016

   -Statutory declaration of [Ms H] dated 3 August 2016

   -Statutory declaration of [Mr F] dated 30 July 2016

   -Reference – [Father L] [College] dated 22 July 2016

   -Medical report from [Dr M] dated 24 October 2016

   First Tribunal decision

4. Upon consideration of the claims and evidence the differently constituted Tribunal did not find the applicant’s claims to be credible.  The Tribunal also did not accept that there is a real chance or a real risk the applicant would face serious or significant harm on return to Cameroon as a failed asylum seeker.

   Second Tribunal Review

5. The applicant made a further statutory declaration dated 29 March 2023.  In it he addresses the credibility issues raised by the first Tribunal.

6. Regarding his brother’s awareness of the issues he had been facing in Cameroon he states that his brother [Mr A] did not know about his issues even though he was in contact with their mother in Cameroon.    He states that their mother would not have mentioned anything to [Mr A] about his circumstances because she would not want to have jeopardised his safety in respect of his journeys back to Cameroon.

7. Regarding his own lack of knowledge about the sponsored visa applications made by his brother he asserts he knew nothing about this.  Regarding the provision of documents supporting that application he notes that it is the custom in Cameroon for all significant personal documents to be kept at the home of an individual’s parent and for this reason his mother had all his relevant documents.  He states that [Mr J], a brother who was living with his mother at the time, gave the documents to [Mr A] in Australia.  He states that this custom provides some context as to why he would have handed over his identity documents, such as his birth certificate, passport, ID card and employment reference, to his family members without wanting to know why he had to provide those documents.

8. Regarding the date of closure of his shop he states he is unable to remember the date.  He states that in the confusion of events surrounding his detention by the police, the beating, the destruction of his property and so on he finds it difficult to separate out the dates of various occurrences.  He states he also now in a position of being asked to recall precise dates years after the events and after enduring traumatic circumstances.  He notes it has now been a decade since those events occurred.

9. Regarding his knowledge of the SDF he confirms he was the [Official 2] of the youth wing of the SDF, which was connected to the wider SDF party through only one individual, [Mr D].  He states that his aim on joining the SDF was to protest against the Cameroonian government.  All he knew about the SDF on joining was that it was the main opposition party in Cameroon and this was the basis for his affiliation with it.  He did no research prior to joining the SDF or during his membership of the party.  For this reason he had no intimate knowledge of details of the SDF such as the number of seats won during elections.

10. Regarding a statement from the SDF he states that no current SDF operative would be willing to put themselves at risk by providing an attestation letter for a member of the party seeking asylum in another country.  This is the reason that despite his request no attestation letter exists or has been provided.  In addition, he states that none of the SDF officials with whom he had contact are still available, such as [Mr D].

11. Regarding the identity of persons who visited him in prison in 2011 he states that the reason for his confusion about this is his stress, anxiety and memory problems.

12. He maintains he has never deliberately intended to mislead the Tribunal and that the documents he has provided are all genuine.

13. Regarding the newspaper article tendered as evidence he fears he will be imprisoned and tortured as a result of the notoriety aroused by the article.  He fears he may be poisoned in prison or killed and he also has fears for his children and his mother in Cameroon.

14. He repeats his fears of being harmed by Cameroonian authorities specifically being taken directly from Douala Airport to prison and tortured.

15. A covering submission from his representative dated 30 March 2023 provides new information in respect of the applicant’s personal circumstances in Australia.  It is noted that he married his Australian citizen wife [in] July 2020 and has a [child] from the marriage born on [Date].  Updated reports on his mental health and the mental health of his wife are provided.

16. Regarding the credibility concerns of the first Tribunal attention is drawn to the reports describing the applicant’s mental health issues.   Regarding the first AAT’s credibility findings the applicant’s responses outlined above are repeated. Country information is referenced regarding treatment of supporters of the SDF party; opponents of the Cameroonian government and ruling CPDM party and the treatment of failed asylum seekers from Western countries.

17. Further supporting documentation is attached including:

-      A statutory declaration of the applicant’s brother [Mr A] dated 30 March 2023.

-      The applicant’s NSW marriage certificate and relationship certificate to his Australian citizen wife, [Ms N].

-      The applicant’s wife’s passport biodata page.

-      The applicant’s [child]’s birth certificate.

-      Updated medical reports from the applicant’s General Practitioner and treating psychologist.

-      Copies of recent prescriptions for medications for a mental health condition.

-      Report from the applicant’s wife’s treating psychologist.

-      Report from [Family Care Centre] dated 23 January 2023.

Tribunal hearing held on 6 April 2023 and subsequent submissions

1. When the applicant appeared before the Tribunal on 6 April 2023 there were discussions about his claimed involvement with the SDF in Cameroon and the subsequent mistreatment he received because of this.  There were also discussions about the documentary evidence he has provided in support of his claims.   The applicant’s oral testimony in respect of these matters is discussed below.

2. On 14 April 2023 the applicant’s representative provided a submission to the Tribunal, essentially making arguments in respect of the applicant’s ability to obtain effective protection in a third country under s. 36(3) of the Act.  Further clarifications were provided in respect of the how the applicant obtained the medical documents and membership cards submitted as evidence of his claims.

   FINDINGS AND REASONS

   Country of reference

3. The applicant has produced a Cameroonian passport which verifies his claimed identity and nationality.  In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Cameroon.

4. The Tribunal has serious concerns about the credibility of the applicant’s claims. Throughout the hearing held on 6 April 2023 he could not recount with any certainty the critical aspects of his claims.  For example, he was unable to accurately recall how he obtained a copy of the arrest warrant which was issued prior to his departure from Cameroon or the manner in which he obtained copies of the two SDF cards and the medical records tendered as evidence.  His oral evidence was confused and in many respects inconsistent with his prior written and oral evidence.   In the Tribunal’s view the post-hearing submissions only add to the confusion.    His evidence in respect of the [newspaper] article in which he is named did not assist in overcoming the Tribunal’s concerns about the veracity of that document.  Notably, he was unable to provide a satisfactory explanation as to why the article was published several years after his departure from Cameroon. 

5. Throughout the hearing the applicant appeared to struggle to express himself and he repeatedly stated that due to the deterioration of his mental health his memory is seriously compromised and renders him unable to accurately answer questions put to him by the Tribunal.   The applicant appeared genuinely upset, confused and frustrated and at one stage during the hearing he broke down emotionally.

6. The Tribunal accepts, based on the medical evidence provided, that the applicant is diagnosed with Post Traumatic Stress Disorder with severe levels of depression, anxiety and stress.  The medical reports indicate he is undergoing on-going monthly psychological sessions and is also being treated with medication.  It is reported that he suffers significant memory loss, difficult sleeping, feelings of isolation and shame and he is assessed as being at a moderate to high risk of suicide.

7. Based on the medical evidence provided, the Tribunal accepts the applicant has significant memory loss associated with the poor state of his mental health.  That said, based on all the evidence before it, the Tribunal remains seriously concerned about the credibility of his claims and evidence.  However, for the reasons which follow the Tribunal has not found it necessary to make definitive findings about the credibility of his claims in respect of his SDF involvement.

8. The applicant claims that as a failed asylum seeker returning from a Western country he will face persecution for reason of imputed political opinion.  For context the Tribunal notes the following independent information regarding conflict within Cameroon:

9. Cameroon is divided into two primary linguistic groups – the Francophones and the Anglophones.  Anglophones comprise roughly 20% of the population of Cameroon.[1]  Anglophone communities arose as a result of the Treaty of Versailles, which split what had been German Kamerun into separate British and French mandates.  Following independence in 1960, the British mandate was reorganised into the Northwest and Southwest Regions of Cameroon, which still contain the majority of Cameroon’s Anglophone populations.

   [1] Global Centre for the Responsibility to Protect, ‘Cameroon’ Populations at Risk (Report 1 September 2022)

10. A conflict, variously referred to as the Anglophone crisis, Ambazonia War and the Cameroonian Civil War is ongoing.  The conflict is widely regarded to have started with attacks on Cameroonian military bases in Bamenda and Besongabang by insurgents of the Ambazonia Defense Forces (ADF), a separatist organisation seeking independence for the Anglophone regions of Cameroon under a nation called Ambazonia, in September 2017.[2]

    [2] Daily News Cameroon, ‘Breaking News Explosions in Bamenda and Killings in Besongabang Military Base, ADF Claims responsibility’ 14 September 2017

11. The Cameroonian military is engaged in counter-insurgency operations in the Anglophone regions, fighting against the various separatist groups who are waging a guerrilla war.  Anglophone forces have successfully employed ambushes, roadside bombs and terrorist bombings to cause heavy losses on Cameroonian troops, who seemingly seldom enjoy the support of locals in the regions in which they fight.[3]

    [3] Farouk Chothia, ‘Cameroon’s Anglophone Crisis: Red Dragons and Tigers – the rebels fighting for independence’ BBC News, 4 October 2018

12. The conflict has caused substantial civilian casualties,[4] with credible accusations of war crimes and civilian massacres carried out by both separatist and government forces.[5]  Fears have been raised of the conflict causing areas of Cameroon to ‘[deteriorate] into anarchy’ as rebel groups begin to turn on one another and rebel commanders begin to lose control of ‘their own fighters”.[6]  The conflict reportedly continues to wage on, with recent reports indicating that the Cameroonian military may be focusing more intently on the Anglophone Separatists, in a strategic pivot away from their other engagements with Islamist group Boko Haram in the North of Cameroon.[7]

    [4] Jess Craig, ‘Violence in Cameroon’s Anglophone crisis takes high civilian toll’, Al Jazeera News, 1 April 2021

    [5] Farouk Chothia, ‘Cameroon’s Anglophone Crisis: Red Dragons and Tigers – the rebels fighting for independence’ BBC News, 4 October 2018

    [6] Agnes Aineah, ‘Catholic Peace Foundation Fears for Anarchy in Cameroon as Militias Get Out of Control, ACI Africa 20 September 2022

    [7] Africa Intelligence, ‘Cameroon shifts military focus from Boko Haram to fighting separatists’ 19 October 2022.

13. Relevantly, since the decision of the first Tribunal, which determined that there would not be a real chance or real risk the applicant would face serious or significant harm in Cameroon on the basis of being a failed asylum seeker, more recent and concerning country information about the treatment of deportees and failed asylum seekers to Cameroon has become available.

14. On 10 February 2022, Human Rights Watch published a report entitled “How Can you Throw Us Back?: Asylum Seekers Abused in the US and Deported to Harm in Cameroon”.[8]  The report describes the fates of Cameroonians deported from the United States on two flights in October and November 2020 and others deported in 2021 and 2019.  The report found that on return, the deportees faced ‘serious human rights violations including rape, torture and other physical abuse, arbitrary arrest and detention, inhuman and degrading treatment in detention, extortion and threats’ from the Cameroonian authorities including ‘police, gendarmes, and military personnel, among other officials and state agents’.[9] 

    [8] Human Rights Watch, “How Can You Throw Us Back? Asylum Seekers Abused in the US and Deported to Harm in Cameroon”, 10 February 2022

    [9] ibid

15. While most of the returnees interviewed by Human Rights Watch were of Anglophone background, Francophones also counted amongst those seriously harmed on return.[10]  Multiple interviewed returnees identified that they were harmed for being seen as having discredited Cameroon.[11]  For example, one Cameroonian woman who was deported following the rejection of her asylum claims said, ‘I was arrested and detained [by gendarmes] … I was raped.  I was well [seriously] beaten, I was tortured, I lived mostly on bread… They said we are the people that have gone out and spoiled the name of the country…so I have to pay for it dearly’.[12]

    [10] ibid

    [11] ibid

    [12] Ibid.

16. The report indicates that returnees were targeted for the act of seeking asylum and their subsequent deportation:

    Government forces targeted many returnees – mostly Anglophones, some Francophones – because of their deportation and their actual or imputed opposition to the government.  Deported people described how authorities interrogated and threatened them, accusing them of “speaking ill” or “blackening the name” of the country by seeking asylum, of “destabilizing” and wanting to divide Cameroon, or of raising money for separatists. 

    Several deported people faced trumped up criminal charges, in at least one case directly linked to having sought asylum in the United States.  This, along with other deportees’ accounts illustrating that the act of seeking asylum itself or being deported from the United States triggered persecution upon return, establishes a basis for sur place asylum claims (based on conditions arising after a person has left their country) for Cameroonians in the United States.

    Human Rights Watch research indicates Cameroonian authorities detained or harmed at least 40 people (20 of whom we interviewed) after deportation from the US between 2019 and 2021, of whom most or all were returned asylum seekers.  Credible sources also indicated that authorities detained at least 20 deported people we did not interview, including three women and 10 men from the 2020 flights – one of whom authorities also reportedly harmed – and seven men deported in 2019.  Other unconfirmed reports suggest the true figures may be even higher.[13]

    [13] Human Rights Watch, “How Can You Throw Us Back? Asylum Seekers Abused in the US and Deported to Harm in Cameroon”, 10 February 2022

17. Country information indicates that asylum seekers from countries other than the United States also face detention and mistreatment upon return to Cameroon.  Human Rights Watch documented the post-return detention of a Cameroonian asylum seeker deported from Latin America in March 2021.[14]  In 2015, Sciences Po Paris published an academic paper which reported that returnees from Europe face threats of detention or imprisonment in Cameroon, and that failed asylum seekers can be submitted to violence upon their return.[15]

    [14] Ibid.

    [15] Blondel, Charlotte, et al.  “Post-Deportation Risks: Criminalised Departure and Risks for Returnees in Countries of Origin, May 2015

18. It is submitted that the applicant has been absent from Cameroon for nine years residing in a Western country and that his passport is expired.  It is submitted that for no other reason, these circumstances alone will cause him to be of interest to officials on return.

19. Having cited his passport at the hearing the Tribunal accepts it is expired.  During the hearing the applicant stated that he has attempted to renew his passport but has been told he can only do that in Cameroon.  The Tribunal understands that Cameroon introduced a new biometric passport in recent years which conforms to standards set by the International Civil Aviation Organisation.  According to instructions on the websites of the Embassy of Cameroon in Washington DC and the High Commission of Cameroon in Ottawa applications for the Cameroonian machine-readable passport must be accompanied by numerous original identity documents.[16]  It appears the applicant may be able to renew his passport through an appropriate Embassy or Consulate however given the need to produce various original identity documents the Tribunal accepts there may be challenges involved in doing so from outside of Cameroon.   If the applicant is required to return to Cameroon now or in the reasonably foreseeable future the Tribunal accepts there is a possibility he would do so on a temporary travel document of some sort.  

    [16] Refworld, Cameroon: Requirements and Procedures for obtaining passports in Cameroon and abroad (2013-March 2014).

1. While the Tribunal is doubtful the Cameroonian authorities would know for certain that the applicant had applied for asylum in Australia it has taken a cautious approach in deciding this matter given the country information outlined above, particularly the Human Rights Watch Report (2002) which the Tribunal takes very seriously.  That information indicates that returnees from various countries, not just the US, have been targeted for the act of seeking asylum, for being deportees and because it is assumed they are opponents of the government and/or separatists.

2. Given the ongoing conflict and separatist struggles in Cameroon and the government’s reported sensitivity to criticism the Tribunal is prepared to accept that the applicant’s return under the circumstances described above would likely raise the risk of him being singled out and scrutinised by the authorities on arrival.  The Tribunal cannot rule out the possibility that the Cameroonian officials might well assume he has applied for asylum in Australia, given his lengthy absence from the country, and that he may be accused of voicing opposition to the Cameroonian government while overseas.   Due to the fragile mental state he would be returning in and given his demonstrated inability to clearly express himself under questioning the Tribunal is concerned that he would not perform well under such scrutiny. In such circumstances and given the findings of the Human Rights Watch Report the Tribunal is prepared to accept that in the applicant’s case there is a chance, which is not remote, that he would be subjected to mistreatment on return along the lines of that described in the country information above, namely verbal and physical harassment, extortion and possibly even a period of detention in suboptimum conditions by Cameroonian authorities on return. 

3. The Tribunal is satisfied that the harm the applicant fears, amounts to serious harm and will be due to him being imputed with a political opinion of opposition to the government arising from his membership of a particular social group, namely people who have unsuccessfully attempted to seek asylum abroad.

4. The harm the applicant fears is from the state and accordingly the Tribunal is satisfied that no protection against the harm he fears will not be available to him in Cameroon.  For the same reason the Tribunal finds that relocation within Cameroon will not protect the applicant against the harm he fears.

5. For the reasons given above the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Cameroon.

   Section 36(3)

6. 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 reportedly remain lacking.  While some measures are reportedly in place, free movement and establishment has not been a priority for ECCAS member states.[17]   The United National Economic Commission for Africa observed that in practice the free movement of people within ECCAS is only effective in four member states, Cameroon, Chad, Congo and Democratic Republic of Congo[18].  While Cameroonian citizens can enter Chad and Republic of Congo without a visa they can only remain for stays of up to three months[19].  To reside freely in those countries they are reportedly still required to apply for a “sojourn card”.[20] Cameroonian citizens must apply for a visa to enter the Democratic Republic of Congo.  In such circumstances, the Tribunal is not satisfied that Cameroon’s membership of ECCAS gives rise to a “right” for the applicant to enter and reside in any other member state.  There is no 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.

   [17] IOM, 2019, ‘West and Central Africa: The regional migration context’, 11 January.

   [18] United National Economic Commission for Africa, ECCAS – Free Movement of Persons

   [19] International Organization for Migration, International Dialogue on Migration Intersessional Workshop on Free Movement of Persons in Regional Integration Processes, Supplemental materials, 18-19 June 2007, available at _of_persons_18190607/idm2007_handouts.pdf, at p13. 

CONCLUDING PARAGRAPHS

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 satisfied the criterion set out in s 36(2)(a).

DECISION

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

Tania Flood
Member