2300937 (REFUGEE) [2024] ARTA 728 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2300937
Tribunal:General Member P Noonan
Date:2 December 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 2 December 2024 at 4:41pm
CATCHWORDS
REFUGEE – protection visa – Tanzania – fear of harm from father, a witchdoctor – threats to kill if he did not return to take up traditional village role – father now deceased and claim of uncle’s intention to kill him to find replacement for role – no actual harm and no threats from uncle – general security situation – delay in applying for protection – visa and relationship history – country information – witch doctors and witchcraft – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 January 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Tanzania, applied for the visa on 15 June 2016. The delegate refused to grant the visa on the basis that he does not have a well-founded fear of persecution or that there is a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to Tanzania.
The applicant appeared before the Tribunal on 8 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Dr A], and [Ms B].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal notes that prior to the hearing the applicant requested an adjournment because of an impending operation and the stress of this. The Tribunal carefully considered this request but decided that as the operation was pending, and there was no medical information before it that the applicant was unfit to participate in a hearing, that it would proceed as scheduled. The Tribunal was satisfied that, throughout the course of the hearing the applicant was able to answer the questions of the Tribunal and give his evidence, to the best of his ability, without undue impediment from medical complications and that he was represented throughout the hearing and that no requests or submissions were made at any stage during the hearing that the applicant was unable to proceed further with the hearing.
PROCEDURAL…
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- 2300937 (Refugee) [2024] ARTA 728
- Case
- [2024] ARTA 728
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CaseChat Overview and Summary
The Tribunal examined the applicant’s claims that he feared harm from his uncle, who intended to kill him to find a replacement for the witchdoctor role, and from the general prejudice against witchcraft practitioners in Tanzania. The Tribunal also considered the applicant’s assertions about the poor security situation in the country. The Tribunal found that the applicant's father was deceased, and there had been no actual threats or harm from his uncle. The applicant’s fear of prejudice from the broader Tanzanian community concerning witchcraft was considered, but the Tribunal found no evidence to substantiate such a fear. The witness testimony from Dr. A, who had no direct experience or expertise in Tanzanian witchcraft practices, was deemed unreliable and therefore given no weight.
The Tribunal concluded that the applicant did not meet the criteria for a protection visa as he did not have a well-founded fear of persecution. The applicant's concerns about the traditional role of a witchdoctor did not amount to a real risk of persecution, particularly in light of his father’s death and the lack of current threats from his uncle. Additionally, the general security concerns in Tanzania did not specifically relate to the applicant’s personal circumstances. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The final orders of the Tribunal were to affirm the decision of the Department of Home Affairs not to grant the applicant a protection visa. The Tribunal found that the applicant did not satisfy the criteria for a protection visa under the Migration Act 1958.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
At the Tribunal hearing the applicant confirmed that, despite the death of his father, he still fears harm because of discrimination against witchcraft practitioners in Tanzania and because his uncle will attempt to kill him so that he can find someone to replace him in the traditional role in his father’s ancestral village. He also still fears harm because of his divorce as he is not sure what his father said to the villager’s elders when he was alive about this. He also added that he fears harm because of the generally poor security situation in Tanzania. The Tribunal’s considerationsClaim – fear of harm due to traditional witchdoctor and or witchcraft practices The applicant appeared to make two different claims in this regard when confirming this claim with the Tribunal. He stated that he fears harm from his uncle and the local villagers of his father’s village because they will seek to kill him in order to replace him with someone else in the traditional inherited village witchdoctor role. He also somewhat confusingly claimed to fear harm because of prejudice in the broader Tanzanian community about witchcraft practitioners. The Tribunal discussed with the applicant that the role he appears to be claiming his father fulfilled was that of a witchdoctor. The applicant did not dispute that this was the case. The Tribunal took evidence from the applicant’s witness [Dr A], who the Tribunal was informed, was appearing to give evidence about witchdoctor practices. [Dr A] informed the Tribunal that he is a Doctor of [Subject] and that he is from [Country] and that he had never lived in Tanzania. He stated that he wished to give evidence about his general knowledge of witchcraft in Africa. He informed the Tribunal that he had never studied the area. He only speaks from his own experience. He submitted that the role of witchdoctor in Africa is passed on from one generation to the next, usually to the eldest son. If the eldest son refuses the inherited role then they must get away from the country as there are implications for them if they refuse. When asked by the Tribunal how he knew this [Dr A] stated that he had seen like cases on television. In considering the weight to be given to [Dr A]’s evidence the Tribunal noted that he has no professional qualifications or direct experience or study background in the area he appeared to give evidence about. Further his evidence is largely based upon third hand experiences such as what he has seen on television. Further he has never lived in Tanzania or specifically studied witchcraft practices and beliefs in Tanzania. Given these considerations the Tribunal places no weight upon [Dr A]’s evidence with respect to the situation for eldest sons who refuse to inherit the witchdoctor role in a village in Tanzania. The applicant claims that he refused to take on the inherited role of a witchdoctor in his father’s traditional village. He informed the Tribunal that he left home at 24 to get away from his father and his demands in this regard. He has never lived in his father’s traditional village and his father was not a practicing witchdoctor when he lived with him, rather he had a traditional job until his retirement. The applicant claims that his father asked him to inherit the witchdoctor role but he refused. He claims that his father then became angry with him and kept asking him to change his mind. He then gave highly contradictory evidence that this was the extent of his interactions with his father and he had never threatened to kill him. When this contradictory evidence, with respect to past threats of harm from his father was discussed with the applicant, he replied that he took his father’s insistence that he adopt the traditional role as a form of threat.