1412486 (Refugee) - [2015] AATA 3986

1412486 (Refugee) [2015] AATA 3986 (9 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1412486
COUNTRY OF REFERENCE:                  Nigeria
MEMBER:Filip Gelev
DATE:9 September 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 09 September 2015 at 10:45am

CATCHWORDS
REFUGEE – Protection visa – Nigeria – applicant an infant – parents forbidden mixed marriage –
Social group – risk of harm as a member of the mother’s family – applicant will be subjected to female genital mutilation – risk of harm confined to the parents’ home village – credibility of the parents – mother’s first husband is fictional – conflicting marriage dates – bogus medical documents used to obtain temporary Australian visa – exaggerated medical claims – right to reside in a third country – Nigeria a member of the Economic Community of West African States – Tribunal acknowledges practical difficulties of relocating – decision under review affirmed
PRACTICE AND PROCEDURE – allegations made about previous member not supported by evidence – parents of the applicant withdrew Federal Circuit Court appeal Ministerial intervention sought
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65 , 91R, 91S , 424AA, 424A
Migration Regulations 1994 (Cth) Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225.
Applicant S v MIMA (2004) 217 CLR 387
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYHS [2011] FCA 53
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZAAJ v MIBP [2015] FCA 478
MZWZB v MIMA [2006] FMCAA 4211
MZZLF v MIBP [2014] FCCA 1298
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZSPT v MIBP [2014] FCA 1245
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Nigeria applied for the visa on 14 November 2013 and the delegate refused to grant the visa on 3 July 2014.
The applicant appeared before the Tribunal on 29 July 2015. Because of her young age the applicant’s parents gave evidence and presented arguments at the hearing.
The applicant was represented in relation to the review by her registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration, in this case a DFAT report dated 10 February 2015.
Credibility
In the present case the applicant is an infant. The issues of credibility relate to the applicant’s parents. The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’.
The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.
However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.
If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of persecution for reasons of her membership of one or more particular social groups or whether she faces a real risk of significant harm for any reason.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
At the Tribunal hearing [Ms A] confirmed in her evidence that the applicant is a Nigerian national by birth. Section 25(1)(c) of the Constitution of the Federal Republic of Nigeria provides that a person is a Nigerian national by birth where either of his or her parents is a citizen of Nigeria. In the present case, both parents are Nigerian nationals and therefore the applicant is a national of Nigeria. The Tribunal has therefore assessed her claims for protection against Nigeria in relation to ss.36(2)(a) and (aa).
ECOWAS and right to enter and reside
Nigeria is a member of the Economic Community of West African States (ECOWAS), a multi-lateral treaty established in 1975 between fifteen member states, with the to promote economic integration between member states.[1] Over the past 30 years a series of protocols signed by ECOWAS member states have provided citizens of member states with the legal ‘right to reside’ in any other member state, providing they have legitimate travel documents.
[1] See the ECOWAS website at which provides relevant legal documents and texts about the operation of the ECOWAS treaty.
However, sources indicate that in reality there are a number of other limitations within the individual member states that have affected this right to reside, and that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment and extortion on the part of member nations.
The Tribunal accepts the applicant’s representative’s submissions that there are many practical difficulties associated with the theoretical right to enter and reside in ECOWAS countries, including the amount of checkpoints, lack of recognition of travel documents and the supremacy of member states’ domestic residence laws, and that in the great majority of cases this Tribunal has found that applicants from ECOWAS countries are not excluded under s.36(3).
In light of the above information, the Tribunal is not satisfied on the evidence before it that the applicant has a right to enter and reside in an ECOWAS country, or any other third country, in accordance with s. 36(3).
Material available to the Tribunal
The applicant’s parents case was decided by a different Tribunal member in August 2013. That tribunal had a number of concerns regarding the parents’ credibility.
The presently constituted Tribunal has considered the material before it, before the Tribunal member who decided case , the subsequent ministerial request pursuant to s.417 of the Act, and the material before the delegate in the present case, including the following:
·[Ms A]'s responses on Part C of her Protection visa application ([Department file number]);
·Statutory declaration made by [Mr B] on 27 April 2012 ([Department file number]);
·Statutory declaration made by [Ms A] on 27 April 2012 ([Department file number]);
·Written submission made by the family's first representative to the Department on 21 May 2012 ([Department file number]);
·Written submission made by the family's second representative to the previous Tribunal on 14 January 2013 (case 1214499);
·Written submission made by the family's third representative to the previous Tribunal on 10 May 2013 (case 1214499);
·Statutory declaration made by [Ms A] on 10 May 2013 (case 1214499);
·Statutory declaration made by [Mr B] on 10 May 2013 (case 1214499);
·The digital recording of the hearings held with the previous Tribunal on 18 January and 15 March 2013 (case 1214499);
·Complaint made by the current representative to the previous Tribunal on 19 August 2013 (case 1214499);
·Statutory declaration made by [Ms A] on 19 August 2013 (case 1214499);
·Previous Tribunal’s decision record of 26 August 2013 (case 1214499);
·Ministerial request under s.417 of the Act, dated 31 March 2014, a copy of which was emailed to the present Tribunal member on 28 July 2015 (folios 102-112 of Tribunal file 1412486);
·Copy of a statutory declaration made by [Ms A] on 26 March 2014, attached to the ministerial request (folios 96-102 of Tribunal file 1412486);
·Copy of a statutory declaration made by [Mr B] on 26 March 2014, attached to the ministerial request (folios 91-95 of Tribunal file 1412486);
·The responses to questions of Part C of the present application (CLF2013/313562);
·Statutory declaration made by [Mr B] on 26 May 2014 (CLF2013/313562);
·Statutory declaration made by [Ms A] on 26 May 2014 (CLF2013/313562);
·Digital recording of Protection visa interview of 30 May 2014 (CLF2013/313562);
·Written submission made by the current representative on 27 June 2014 (CLF2013/313562);
·Written submission made by the current representative to the Tribunal on 15 July 2015 (case 1412486, folios 37-69);
·Statutory declaration made by [Mr B] on 15 July 2015 (case 1412486, folios 73-74);
·Statutory declaration made by [Ms A] on 15 July 2015 (case 1412486, folio 75);
·Post-hearing written submissions made by the current representative on 25 August 2015 (folios 120-125); and
·Various medical reports.
Medical reports and applicant’s parents’ medical conditions
The Tribunal takes into account the reports provided by [a] counsellor advocate, [from a welfare organisation] and [a] psychiatrist, and [a] GP in relation to [Ms A]. The Tribunal accepts that the applicant’s mother experienced traumatic events in the past, and was treated for psychotic depression and PTSD. However, the Tribunal considers that she was able to give evidence, present arguments on behalf of her daughter, and participate meaningfully in the proceedings.

On the basis of the medical reports before it – and despite the evidence at the hearing that [Ms A] has stopped seeing medical professionals and has not been taking any medication for mental health problems since some time last year – the Tribunal accepts that the applicant’mother suffers, or has in the not too distant past suffered, from PTSD and depression.
At the hearing, the representative queried whether the Tribunal had given genuine consideration to the medical evidence if it was still prepared to foreshadow the possibility that it may make adverse credibility findings. The Tribunal advised that it had considered the medical evidence provided. The representative referred specifically to the report by [a welfare organisation] of 13 March 2013, the report by [the GP] of 22 May 2012 and she then showed the Tribunal photographs which show physical injuries (covered by [the GP]’s report). The Tribunal acknowledges that the applicant’s injuries and the fact that they may have been received in the manner claims is evidence corroborative of the claims.
While the Tribunal accepts the medical reports to have been written in good faith, including the conclusions by the medical professionals that the medical problems were caused by the past harm as claimed by the applicant’s mother, the Tribunal is not bound by what a medical professional concludes as being the reason for a person’s symptoms or injuries.[2]
[2] MZWZB v MIMA [2006] FMCAA 4211
As the Tribunal observed at the hearing the existence of certain injuries on a person’s body does not prove an applicant’s claims, even when they are consistent with the alleged manner in which they were received. The Tribunal respectfully adopts the comments of the Federal Circuit Court in MZZLF v MIBP [2014] FCCA 1298 (per Riethmuller at [24]-[26]):
Evidence of injuries is often an issue that the Tribunal must confront. The difficulty with injury evidence is that the existence of an injury of itself does not necessarily prove how that injury has been brought about. In some cases, the nature of the injury may be so unusual that it is apparent, or at least apparent to a medical expert, that the only likely way in which the injury could be caused is as a result of mistreatment. Of course, in many cases, an injury that a person has could equally be consistent with a variety of causes, from the mundane, like slips and falls or minor accidents, through to vehicle, traffic and work accidents and other causes.
When one looks closely, many people have some minor injury that they can point to as they grow older. In other cases, an injury may be consistent with abuse or mistreatment. Of course, in some cases, the absence of an injury may be inconsistent with the version of events that that person gives. This leaves the Tribunal in a difficult position, and requires the Tribunal to carefully consider whether or not the Tribunal accepts that a particular injury has occurred, and then to carefully analyse whether or not that injury of itself is consistent with the version given by an applicant, and also whether there is evidence which shows that the injury is inconsistent with other versions or other possible causes.
In the majority of cases, an injury will be consistent with the version being given, but also consistent with a huge range of mundane causes for such injuries occurring in day to day life. In this case, the Tribunal has identified reasons why it doubted whether the injuries were, in fact, consistent with the version given by the applicant. However, it is apparent from [its reasons] that the Tribunal did not proceed to make a formal finding in that regard, because it was of the view that it did not have the necessary expert evidence and did not have the medical expertise to make such a positive finding. The finding that the Tribunal did make, that the injuries that they accepted the applicant had were consistent with a variety of causes, seems to me to be unremarkable.
The Tribunal considers that the same applies to [Ms A]’s mental health problems, namely, PTSD and depression. The fact that she has undergone some trauma in the past is corroborative evidence in support of the claims made, but it does not prove the allegations of past harm. In this case the Tribunal’s own concerns about the applicant’s credibility have caused the Tribunal to conclude that to the extent that the reports tend to corroborate the applicant’s account of the events underlying his refugee claims, they are to be given little weight[3].
[3] MIAC v MZYHS [2011] FCA 53
At the hearing [Ms A] told the Tribunal that she was going to see a GP, because of fluid in her lungs. She first complained about this in January 2015 and she still has not been diagnosed. The Tribunal was advised that she hopes to get the results of further testing on 31 July 2015. As of the date of the decision, the Tribunal has not been provided with any further medical evidence or submissions in relation to these medical problems.
The applicant’s father has not claimed to suffer from any diagnosed mental health problems. He claimed at the Tribunal hearing that all his physical health problems were causing him to be anxious about the future. He did not claim that he is not able to give evidence and present arguments at a Tribunal hearing. He has claimed to suffer from physical ailments, and in particular heartburn/heart problems, liver problems and thick blood, and dizziness.
On the evidence before it, the Tribunal finds that the applicant’s father was fully capable of participating meaningfully in the proceedings, giving evidence and presenting arguments.
At the hearing the Tribunal asked the applicant’s father about the medication he takes and the medical conditions he has, as outlined in his statutory declaration of 15 July 2015. The Tribunal noted that in that statutory declaration he claimed to suffer from heart disease. The Tribunal suggested that according to information it had accessed online, the two types of medication he takes, Nexium and Rennie are used to treat heartburn and reflux[4],[5] rather than heart disease. The Tribunal invited the applicant’s father to comment on the suggestion that heartburn is not a heart condition and his medical condition does not appear to be a serious one. [Mr B] said that doctors did not know what was wrong with him. He must have been to hospital about 100 times or maybe more. He says that the moment he eats something, “the burn” starts and he cannot eat. He said the heartburn or gastrointestinal pain is unbearable and he gets dizzy. He talked about his heart getting separated from “the tissue”. He said that both he and medical practitioners could not diagnose the problem and he will get further tests done.
[4] accessed on 27 July 2015.
[5] accessed on 27 July 2015.
The Tribunal asked the applicant’s father what medication he takes because his blood is too thick and for his liver, which are two further problems mentioned in his statutory declaration. The Tribunal further asked why he had not provided any medical evidence of his health problems, if they are serious. He said that at [Hospital 1] he was told that he had thick blood. He was referred to a “nuclear medicine” place for further tests. He has to drink two litres of water every day because of his thick blood. He was told that the blood thickness is a symptom, not the cause. He was told that his liver is not functioning properly. He said that early next month he will have further tests conducted and he will then go to see a doctor for the results of the tests.
In relation to the issue of further medical evidence, the applicant’s representative explained to the Tribunal at the hearing that to obtain a report from [Hospital 1], where the applicant’s father is being treated, it may be necessary to pay. The Tribunal said that if that is the case and the applicant’s parents cannot pay, it might accept notes by the representative of conversations with medical specialists at the [Hospital 1].
On 25 August 2015 the Tribunal received a copy of a letter from [Hospital 1], dated 5 June 2015, that is, a letter that pre-dates the hearing. According to the letter the applicant’s father has “relative polycythaemia” – an increased concentration of haemogolobin in the blood through reduction of plasma volume – and the consultant haematologist [recommended] that he increase his intake of water from approximately 1 litre a day to 2-2.5 litres a day. The letter further noted that the applicant’s father may have a bacterial infection, helicobacter pylori and he was yet to see a doctor to commence helicobacter pylori eradication treatment. Finally, according to the letter, the applicant’s father suffers from acne keloidalis nuchae, inflammation of hair follicles, and he was on antibiotic treatment for that condition. There was no mention in the letter of heart problems.
Background
The applicant was born in Australia on [date].
Her parents arrived in Australia on 26 December 2011 as the holders of [temporary] Visas. The applicant’s sister was born in Australia on [date] 2012. In the decision, the Tribunal refers to the applicant’s parents either as applicant’s mother/father or by their names [Ms A]/[Mr B], respectively.
The applicant’s parents applied for protection visas on 27 February 2012. Only the applicant’s mother made her own claims for protection at that time. The applicant’s sister was added to the application after her birth. The combined application was refused by the Department of Immigration on 13 September 2012 and the decision was affirmed by the Tribunal (differently constituted, case number 1214499) on 26 August 2013.
The Tribunal accepts the parents’ claims in relation to their background, religion and ethnicity. The applicant’s mother was born in Aba (Abia state) in the south of Nigeria in [date]. She is Igbo by ethnicity and Christian by religion. She completed a bachelor of laws in Enugu, some 200km north of Aba from 2000 to 2005. She completed a further 9 months of study in 2005-6. She worked in [a particular industry] before coming to Australia. She lived in Lagos in 2005-2006 and again in 2008 and between September 2009 and September 2011. In Lagos she met her future husband (around June 2010) and married him (August 2011). The applicant’s father was born in [a part of] Imo state in [year]. He is Igbo by ethnicity – but belongs to the sub-group or tribe called Osu – and a Christian. His highest level of education was 12 years of school. Before coming to Australia he was employed in a family run [business], a business he took over from his father in 2008-9. He told the Tribunal at the hearing that he lived in Lagos for about 10 years.
The applicant’s parents’ claims – made in their own application for protection visas and made to this Tribunal as well – which the Tribunal does not accept, are set out below. The applicant’s mother claimed in her application that she feared going back to Nigeria because she would be killed by a man called [Mr C]. Further, she was afraid to return because she had married an Osu man and given birth to children with her Osu husband. This is because members of the Igbo tribe believe that the Osu people are sub-human and marriage between the two tribes is forbidden.
Before the applicant’s mother was born, her father and a man named [Mr D] went into business together, despite the fact that her father was a Christian and [Mr D] a Muslim. They were both members of the People’s Democratic Party. Before she was even born, the two men decided that [Ms A] would marry [Mr D]’s son, [Mr C].
When [Ms A] was about [age] years old and studying [at] university, her father told her that she was to marry [Mr C]. When she objected, her father’s only concession was that she could finish her studies, but she had to get married to [Mr C] and she was not allowed to have contact with any other men.
The bride price having been paid, the families regarded them as married, that is, [Mr C] felt entitled to have sex with [Ms A]. She discovered that he lived with his second wife and that she would be his third wife. She also found out that he belonged to a secret cult called [name deleted]. They have terrible rituals, including “killing people, drinking their blood and human sacrifice.”
In October 2006 while [Ms A] was staying at [Mr C]’s house, she refused to have sex with [Mr C] and he raped her “on a daily basis”; during this time he also regularly beat her. He asked her to stop attending church and to convert to Islam but she refused. She was beaten so badly that she lost consciousness and when she woke up she was in hospital. She was hospitalised for two weeks.
Around March 2007, the applicant’s mother found out that she was pregnant; the families began arranging a marriage for November 2007. [Ms A] and [Mr C] had an argument and [Mr C] beat her up again. She collapsed and lost the baby ([Ms A] initially claimed in her written evidence that she had to have her stomach cut open to remove the foetus; subsequently she claimed that no such surgery had taken place and the original claim was a mistake). She was in hospital for a month.
[Ms A]’s father died in September 2007. In early 2008 [Ms A]’s mother gave her money and helped her flee to a relative in Lagos. The applicant was in hiding and only left the house to go to church. [Mr C] and his father did not know where she was. They began to harass her mother to find [Ms A]’s whereabouts. About October or November 2008, [Mr C]’s family got the police to arrest her mother. The police kept her mother in a cell and used electric shocks on her until she told them where [Ms A] was. As a result of the torture [Ms A]’s mother died in January 2009.
Around November 2008, when [Ms A] was returning from church, she was abducted and locked up in a room. The next day [Mr C] came to see her. He told her that she could not run away from him, and that he had connections with the police and the Secret Service. He said that if she tried to marry anybody else, he would kill that man and kill any children they may have. He ordered some of the thugs that were with him to beat her. She was held in a room without light or toilets. She was only given bread and water to eat and had to sleep on the floor. After 14 days, she was taken to [Mr C]’s house and became a prisoner there.
While still locked up in [Mr C]’s house, [Ms A] – after a conversation with [Mr C]’s mother – realised that she may be killed by [Mr C] and his family. She looked through the phonebook and found a number of one of her classmates from university. This person was not a good friend but [Ms A] called and told her her story. Her classmate said that she could stay with her in Lagos.
On 1 September 2009, she crept out of the house. [Mr C] thought she no longer had any intent of escaping as she had spent almost a year at his house. She left with only the money she had hidden and the clothes on her back. Her friend in Lagos arranged employment for her as [a professional] providing [services] for a [company]. Because the job did not involve [certain duties] she was less exposed.
Lagos is a big city and she was hoping that [Mr C] would not be able to find her. In around November 2009, [Ms A] found accommodation in a one-room apartment on a small island called [Island 1] that could only be reached by boat (the applicant’s parents claimed that there were two islands called [Island 1] and the previous Tribunal was incorrect to find that the apartment was on the island that could be reached by car; they said that she lived on the other [Island 1] that could only be reached by boat). The applicant’s mother only went to work and back; assistants in her office bought food and other necessities for her.
In about June 2010, [Ms A] met the applicant’s father [Mr B], who was also living in the area. In December 2010 he asked her to marry him. In March 2011, he said he wanted to see [Ms A]’s family in order to legalise the marriage. [Ms A] knew that her family would not be happy with her marrying someone who was not [Mr C] and who was from the Osu tribe. She had not had contact with her family since she escaped from [Mr C]. She decided to take [Mr B] to her village. When they arrived in her uncle’s village, the relatives started shouting at her and asking her where she had been. They said that she could not marry him as he was an outcast from the Osu people; she could only marry [Mr C] and they began to beat her and [Mr B]. [Ms A] and [Mr B] managed to run away into the bushes and waited until dark to leave the village.
They then went back to Lagos and after a month [Mr B] decided to go back by himself and see her family again, because he wanted to marry her with her family’s consent. He was beaten by the youths in the village, mobilized by [Ms A]’s uncles. He woke up on the side of the road and managed to go back to his own village which was also in Imo State. After he recovered and returned to Lagos the couple decided to get married without family approval.
The applicant’s parents married [in] August 2011. About one week after the wedding [Ms A] saw some suspicious men at work and escaped; she went home. Later that day, someone came to their house and [Mr B] went to check but he did not come back – he was kidnapped. The next day [Ms A] was called from the office and told that the security guard who worked and lived in the office compound was killed.
After about eight days [Mr B] returned. [Ms A] was staying in a hotel because she was scared to go home. When [Mr B] came back the couple tried to call the police to see if they could get help. When they went to the police station, the police informed her that they did not want to lose their job and told the applicant’s parents they should just leave the country. [Ms A] believed that this was because of [Mr C] had connections.
A Christian brother, [Mr E], helped them to go to [Country 1]. They did not need a visa to go to [Country 1] and they did not go through the official border crossing. They stayed there for three months. Because [Country 1] is so close to Nigeria they were scared that [Mr C] would trace them there. Hence, [Mr E] assisted them to make a visa application to come to Australia. They returned to Nigeria and from there flew to Australia. They arrived in Australia on 26 December 2011.
The previous Tribunal member affirmed the decision to refuse the applicant’s parents’ applications on 26 August 2013. On 19 August 2013 the parents had made a complaint against the previous member and it was not upheld. They applied to the Federal Circuit Court for judicial review of the decision of the previous tribunal. [In] March 2014 the application was discontinued (MZZTE v MIAC).
At the hearing in the present case, pursuant to s.424AA of the Act the Tribunal put to the applicant’s parents adverse information. The Tribunal advised that in conducting its review, the Tribunal is required by the Act to invite them to comment on or respond to certain information which the Tribunal considers would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The Tribunal observed that the Tribunal will explain the information, its relevance and give them an opportunity to seek an adjournment before responding to the information.
The Tribunal advised that the particulars of the information were that a differently constituted Tribunal considered the applicant’s parents’ application on 26 August 2013 and made a decision to affirm the delegate’s decision in case number 1214499.
The Tribunal acknowledged that the parents disagree with the previous Tribunal’s decision. They claim that the previous Tribunal did not have an open mind and that the member was laughing inappropriately at the hearings. They have questioned many of the Tribunal’s findings. The present Tribunal has read the applicant’s parents’ detailed comments and criticisms, read the files relating to the parents’ case and listened to some of the of audio-recording of the previous Tribunal’s hearings, including the evidence of [Mr E] . The Tribunal said it accepted some of the applicant’s parents’ criticisms, for example, that the witness [Mr E] found it difficult to hear and understand many of the Tribunal’s questions. It said it also accepted that the previous member may have made some minor mistakes in relation to the parents’ evidence and claims in case 1214499.

The Tribunal said that it did not propose to seek further evidence from the parents about alleged past events, because they have had ample opportunity to provide oral and written evidence and the Tribunal has sufficient material before it to reach its own views on the merits of the claims.
The Tribunal noted that it accepts it would be difficult to respond to the adverse information without the Tribunal breaking down the individual claims that it does not accept. The Tribunal said that it was nevertheless not prepared to seek detailed evidence in relation to issues about which they have provided voluminous written evidence, a number of written submissions and oral evidence at two previous Tribunal hearings. The Tribunal said that apart from the “harsh assessment” of the witness [Mr E], the Tribunal did not consider that the other allegations made by the applicant’s parents about errors made by the previous Tribunal member were necessarily supported by their evidence.
The Tribunal advised the applicant’s parents that it had engaged in its own assessment of the evidence and it may agree with many of the previous Tribunal’s findings. In particular, it may not accept the claims relating to [Mr C], including that either of the parents was harmed in the past, that either of them was abducted, that they had to flee to [Country 1], that their relatives were opposed to their marriage and that they have a subjective fear of returning to Nigeria. If the Tribunal does not accept these claims, it may find that [Mr C] does not exist and their daughter ([the applicant]), is not going to be persecuted or subjected to significant harm by [Mr C], by anyone associated with [Mr C] or by either of her parents’ families because [Ms A] did not marry [Mr C] or because the parents married each other. It may further find that [the applicant] is not going to have to hide from anybody to avoid harm. It may find that the family can relocate to Lagos, where the parents can find employment, where the applicant can go to school and where she can receive medical care. Based on the evidence from the previous case, the Tribunal may also find that the parents are not credible witnesses. The information if accepted would be the reason or a part of the reason to affirm the Department’s decision in relation to [the applicant].
When the Tribunal finished putting the adverse information to the applicant’s parents, the representative argued that the fact that the parents did not succeed to have the previous member’s decision overturned was because it is difficult to demonstrate jurisdictional error. The representative correctly pointed out that a decision may be free of legal errors even if the Tribunal may have been wrong that the parents are not owed protection. The Tribunal accepts that general proposition. The Tribunal noted at the hearing that it had referred to the court matter of MZZTE v MIAC only because if the Federal Circuit Court had overturned the decision in case number 1214499, it would not have been appropriate for this Tribunal to accept as correct the findings made in that case.
The Tribunal emphasised that it was not suggesting that it was going to take the decision of the differently constituted Tribunal to be correct by virtue of the fact that it is a decision by the same Tribunal. The Tribunal in the present case has engaged in an assessment of the evidence for itself. The Tribunal reminded the applicant’s parents that the applicant was not able to present oral evidence of her own and therefore only the parents could give evidence.
Having engaged in a lengthy discussion with the representative about the adequacy of the “particulars” provided by the Tribunal under 424AA, the Tribunal turned again to the applicant’s parents. The Tribunal invited them to respond to the adverse information immediately or after seeking an adjournment.
In response, [Ms A] asserted that she would not have left a good job [in] Nigeria if she did not fear for her life. [Mr B] rhetorically asked why the Tribunal had accused him of being a liar and insisted that he had been truthful in his evidence.
The delegate identified a number of specific concerns with the plausibility of the applicant’s parents’ evidence at p. 14 of his decision. A copy of this decision was provided together with the application for review and therefore the Tribunal is not under an obligation to put this adverse information for comment under s.424A.
At the hearing, the Tribunal discussed in some detail three issues that arose out of their application for protection. First, the Tribunal referred to the existence of two marriage certificates, one dated [May] 2011 and one dated [August] 2011 (the delegate noted the existence of two certificates in his decision). The Tribunal asked the applicant’s parents whether they were married in May or August 2011 (folios 84 and 109 of overseas file [Department file number]).
Both parents claimed that they had had dealings with the priest and the church prior to August 2011 and by May 2011 he may have already been aware that they wanted to get married. That is why the priest/church may have created the May 2011 document. The representative sought to draw a parallel with the process in Australia where a person must register their intention to get married at least a month before the date of the marriage. The Tribunal notes that both documents are called “certificate of marriage”. The Tribunal finds that the May 2011 marriage certificate is not a genuine document, because its contents are false as the applicant’s parents did not get married in May 2011.
The Tribunal agrees with the point made by the representative that the creation of two marriage certificates did not bring about a benefit to the applicant’s parents. The Tribunal considers that the apparent inutility of the document further undermines the parents’ credibility. If they were fleeing Nigeria in fear for their lives and a false document was useful to facilitate their departure from their home country, the Tribunal would not be as concerned about it as it is in the present case, where the parents created or obtained a document with false contents for no apparent reason, either knowingly or with careless disregard for the fact that its contents may be false.
Secondly, the Tribunal discussed with the parents and the representative the medical examination results from overseas, when the parents applied for [temporary] visas in Nigeria. The representative asserted that x-rays could not have been taken of [Ms A] as she was “heavily pregnant” at the time. Therefore, the parents’ claims that [Mr E] organised false medical results must be true. Therefore, this supported their claim – rejected by the previous Tribunal – that the parents never had medical examinations. Putting aside the fact that the parents evidence in relation to the medical examination results changed in significant aspects, the Tribunal observes the following. If [Ms A]’s first child was born on [date] 2012, she would have been conceived towards the middle of [date] 2011 (unless she was born prematurely,[6] in which case she may have been conceived later). Therefore the Tribunal is of the view that in [date] 2011, the apparent time of the medical tests, the mother would not have been “heavily pregnant”. In September 2011 [Ms A] may not have known that she was pregnant. If a pregnant woman has an x-ray of her chest, that is dangerous for the foetus; it does not follow that the existence of x-ray results proves that [Ms A] definitely did not have an x-ray. Finally, the applicant’s parents insistence that [Mr E] paid a bribe to obtain false medical reports (bogus documents) further undermines their credibility.
[6] According to a letter from [Ms A]’s represenatives to the Department of Immigration, at folio 97 of the DIBP file she was due to give birth “within the next 3 weeks” after [date] 2012, that is, by [date] 2012.
The third issue raised with the Tribunal was the claim by the applicant’s parents that they have had absolutely no contact with the applicant’s paternal uncle [Mr F], who was [Mr B]’s business partner in Nigeria. [Mr B] implausibly claimed that he was too fearful of calling his brother from Australia because his brother [Mr F] might disclose to others the whereabouts of the applicant’s family; if he were to do so, that would place the applicant (and her parents) in danger. The Tribunal does not accept that [Mr B] would be so fearful for his and his family’s safety that he would make no contact with his brother for fear that through his brother [Mr C] would somehow find out the family’s whereabouts and somehow harm them. Even if the applicant’s parents might be fearful that a phone call to [Mr F] might reveal that they are in Australia, the Tribunal observes that the applicant’s parents could use other means to contact [Mr F] such as email which does not show a person’s location.
The representative offered to provide the applicant’s parents phone records as proof that no calls had been made to [Mr F]. The Tribunal said that it did not wish to receive evidence in relation to the lack of contact, because there are many different ways to contact people overseas, including Skype, Viber and phone cards.
The Tribunal observes that some of the criticisms by [Ms A] of the decision made by the previous member are correct, for example, at paragraph 75 of the decision the member incorrectly referred to a certain [person] as a “he”, when in fact it was a “she”; her name is [name deleted]. Another criticism of the decision is that at paragraph 60 of the decision the previous member had referred to Victoria instead of Pretoria. The Tribunal accepts that these are mistakes made by the previous Tribunal member. The Tribunal in the present case has assessed the evidence for itself with the benefit of the corrections, as well as numerous additions, clarifications and submissions provided by the applicant’s parents and their representatives.
The parents and their representatives have raised the issue of the previous Tribunal member laughing inappropriately during the course of the hearings. It was sad that the witnesses were intimidated, that the member’s attitude was “off putting in the extreme” and that the “antics” of [the applicant] (who was [an infant] at the time) in the hearing room could not explain the member’s behaviour both because “the child was not in the room at all of the times when the member gives her presence as the cause for levity” and in addition laughter is not appropriate at all. Having listened to the hearing recordings of the previous Tribunal, the Tribunal disagrees with the assertion that the previous member was “laughing throughout the hearing”. As the applicant’s representative stated in submissions to the member in case 1214499, the main complaint related to a period of some 10 minutes, at minutes 29:00 to 38:00 during the hearing of 14 March 2014, in the context of two hearings with a combined duration of over 3 hours.
Even if [Ms A] and [Mr B] felt somewhat intimidated – that is a subjective value judgment that the Tribunal cannot make based on the audio-recording – the Tribunal found their evidence to be coherent and relatively detailed. The Tribunal is not prepared to disregard the totality of the oral evidence on the basis that the member laughed a few times during the hearing. The Tribunal considers that the previous Tribunal provided the parents with a meaningful opportunity to give evidence and present arguments as required by s.425 of the Act.
While the Tribunal would not qualify [Mr E]’s evidence as “most unsatisfactory” (as did the previous Tribunal, at paragraph 128 of its decision), his supporting evidence does not overcome the problems with the applicant’s parents’ case.
The Tribunal found that the applicant’s parents are not credible witnesses. In making adverse credibility findings, the Tribunal notes that in his written and oral evidence the applicant’s father claimed that heartburn was an indication of heart disease. The applicant’s father either exaggerated the nature and extent of his medical problems or deliberately made up non-existent medical problems. He appeared prepared to make far-fetched claims unsupported by independent evidence which he thought would assist his daughter’s case. In relation to the prevalence of female genital mutilation in Nigeria, he insisted that every single Igbo family in Nigeria engages in FGM, a claim contrary to the country information, including the information provided by the applicant’s representative.
After carefully assessing the evidence, including the medical evidence about physical injuries and mental health problems, the Tribunal has concluded that the entire claim that the applicant’s mother was promised to a Muslim man called [Mr C] and the alleged subsequent incidents that followed, are highly implausible and did not take place. The Tribunal considers that it is not necessary for it to analyse further discrete, individual gaps, internal inconsistencies and contradictions in relation to the applicant’s parents’ evidence since they first applied for protection.
The Tribunal finds that [Mr C] does not exist and therefore [Ms A] was never promised to him in marriage and neither of the applicant’s parents suffered any harm in the past as claimed. Neither the applicant, nor her sibling or parents faces a real chance of being persecuted or subjected to significant harm by a man called [Mr C], by anyone associated with [Mr C], by either of the applicant’s parents’ families or by anyone else as a result of [Ms A]’s decision to marry [Mr B] instead of [Mr C].
Well-founded fear of persecution in home area
According to Part C of the visa application form, the applicant feared that [Mr C] (the man her mother was supposed to marry) will kill the applicant, because she did not honour the agreement made between [Ms A]’s father and [Mr C]’s father; and further because [Ms A] married the applicant’s father [Mr B].
The Tribunal has rejected those claims and therefore it further does not accept that the applicant is at risk of harm as a member of the family of [Ms A] who was said to be at risk of harm as a member of four particular social groups: Nigerian women, Nigerian women who refuse to succumb to an arranged marriage, Nigerian women who marry without the consent of male members of their family, Nigerian women who disobey ‘their husbands/betrothed’ (folio 68 of Tribunal file). [Ms A]’s membership of these particular social groups is based on the claims relating to [Mr C].[7] On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of persecution or real risk of significant harm as a member of the family of [Ms A], because [Ms A] herself does not face a real chance of persecution or real risk of significant harm on return to Nigeria
[7] [Ms A] was said to be belong to a fifth particular social group – non Osu women who marry Osu men. The Tribunal deals with the mixed marriage claim further below.
The Tribunal must nevertheless consider the other claims made by the applicant. The main additional claim made was that she fears that she will be subjected to circumcision or female genital mutilation (FGM). In various submissions, many different particular social groups were postulated by the applicant’s representatives:
1Nigerian women and girls;
2Nigerian women and girls who come from communities/tribal groups where female genital mutilation is the norm;
3Nigerian girls who are likely to be forced to undergo female genital mutilation;
4Nigerian women and girls who are Igbo;
5Nigerian women and girls who are from the Osu caste of the Igbo ethnic group;
6Nigerian girls with Australian birth certificates;
7Nigerian girls born in the West;
8[Family of the mother] and [family of the father].
According to the same submissions, the applicant, her parents and her sister have a well-founded fear of persecution ‘by her own family on the basis of her mother’s membership of a particular social group’, namely, Nigerian women, Nigerian women who refuse to succumb to an arranged marriage, Nigerian women who marry without the consent of male members of their family, Nigerian women who disobey ‘their husbands/betrothed’, and non-Osu women who marry Osu men.
The applicant’s parents made various additional claims. The additional claims were sometimes presented as protection claims of their own or as issues that went to the reasonableness of relocation.
First, it was said that the applicant is at risk of harm because she is the child of a mixed marriage of an Osu and a non-Osu, or an Osu and an Igbo person.
The second claim was that the applicant may be kidnapped as a returnee from the West as a person born in Australia, as a person born outside of Nigeria or a person who does not have a Nigerian birth certificate, because the family will be perceived to be wealthy.

100. The third claims was that the applicant is at risk because the Nigerian health care system is inadequate and the applicant has a weak immune system because she has been living in Australia.
101. An additional related claim was about education. It was said that schools are severely under-resourced, with up to 100 students in a classroom, bare floors and no electricity, unsafe drinking water (in schools) and poor ventilation. These deficiencies could lead to the applicant contracting water or air borne diseases such as measles, chicken pox, or craw craw (a skin disease).
102. Four, it was claimed that the applicant may be subject to physical abuse at school, including being “forced to cut grass in fields and labour under excruciating heat and severe weather conditions”. The applicant may be subjected to child abuse, both physical – by family members and teachers; and sexual – by “jobless men who just stay at home and get themselves drunk and also by drop outs”; the delegate in his decision pithily summarised the subclaim as being vulnerable to sexual abuse from drunken unemployed vagabonds”.
103. The representative submissions of 15 July 2015 provided general country information about the “general human rights situation for children in Nigeria”. According to Amnesty International there are 9 million orphans in Nigeria out of a population of 166 million, more than 7% of infants do not survive their first year; the life expectancy is 52 years for men and 53 for women; the average GDP per person is just above $3000 a year; 1 in 3 Nigerians live in slums or informal settlements in poor, overcrowded conditions with limited access to safe water and constant threat of forced eviction; 2 million people have been forcibly evicted from their homes since 2000. Save the Children UK recently reported that some 40% of children miss out on school and have to work to survive; nearly 2,000,000 children have lost one or both parents to an AIDS related disease; some 15 million children are working in agriculture as domestic servants, hawkers, beggars or trafficked sex workers (many of them are out of school without access to basic health and social protection services); some 11 million children out of school, and the majority of those are girls.
Female Genital Mutilation (FGM)
104. The Tribunal has considered whether the applicant fears this harm for reasons of her membership of a particular social group related to female genital mutilation or FGM. The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case[8] and also in Applicant S[9]. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
[8] Applicant A v MIEA (1997) 190 CLR 225.
[9] Applicant S v MIMA (2004) 217 CLR 387
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

105. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
106. The delegate found that Nigerian girls who are likely to be forced to undergo FGM or are from a particular community where FGM is the norm are united by a shared fear.
107. While the particular social group test set out by the High Court is far from easy to apply in some situations, the Tribunal accepts that girls or women who belong to this group are not united by their fear alone. The unifying characteristics are either their sex (FGM by definition is not practised on men) or their sex in combination within the clan, tribe or ethnic group to which they belong. In any event, the Tribunal accepts that FGM amounts to significant harm as defined in s.5 of the Act.[10]
[10] The delegate may well be correct that the unifying characteristic in one of the posited particular social groups as set out at paragraph 95, Nigerian girls who are likely to be forced to undergo female genital mutilation, may indeed be the fear of harm.
108. Therefore, there is no legal issue the Tribunal needs to resolve. Rather, the Tribunal must decide whether the applicant faces a real chance of being forced to undergo FGM. The Tribunal also accepts the comprehensive submissions and country information provided by the applicant’s parents about the high prevalence of FGM in Nigeria and in particular among Igbos. The claim is consistent with the DFAT report on Nigeria, which states at 3.42:[11]
[11] DFAT, Country Report on Nigeria, 10 February 2015.
Credible local sources advised that it remains extremely difficult for women and girls to obtain protection from FGM. Despite an increase in reports received by the Nigerian Police Force (NPF) and the National Human Rights Commission (NHRC), strong community support for the practice and traditional attitudes of police, among other factors, ensure FGM is likely to continue to be practiced.

109. Contrary to the pre-hearing submissions of the applicant’s representatives, there is a Federal law which bans FGM across Nigeria.[12] The Tribunal does agree with the submissions made at the hearing (once the existence of the law was put to the applicant’s parents) that law enforcement in Nigeria is weak and the authorities would be unwilling and unable to prevent the infliction of FGM on the applicant, and her sister, if the extended family were to try to inflict FGM on the girls.
[12] ‘Nigeria Bans Female Genital Mutilation, But Advocates Say There's Still More Work To Do’, Huffington Post, 8 June 2015, accessed at on 16 July 2015.
110. The Tribunal asked the applicant’s parents why the FGM claim had not been made in relation to the applicant’s sister in the past. [Ms A] said that the sister was included in the application by [Ms A] and they did not expect that they would be treated to harshly. She claimed that it was made in the ministerial requests made by [Ms A]. After the hearing the applicant’s representative provided the Tribunal with a copy of the s.417 Ministerial request submissions, dated 31 March 2014, where the FGM claim is clearly set out.
111. Given the high prevalence of FGM in Nigeria in general and among the Igbo in particular, and despite its significant credibility concerns, the Tribunal finds that whether the applicant is “returned” to her mother’s or her father’s village, she faces a real chance of FGM which would amount to persecution. The persecution would be for reason of her membership of one or more of the particular social groups proposed by the representatives: Nigerian women and girls; Nigerian women and girls who come from tribal groups where female genital mutilation is the norm; or Nigerian women and girls who are Igbo.
112. The Tribunal further finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that she will suffer significant, namely, FGM. That finding is consistent with the PAM3 guidelines (and in the Tribunal’s view the delegate was correct in concluding that FGM amounts to significant harm).
113. Because of the Tribunal’s findings above, it is not necessary to decide whether the applicant has a well-founded fear of persecution or there is a real risk of significant harm in her home area or areas.
State protection
114. Despite the fact that there is a new federal law which criminalises the practice and despite some decline in the number of females undergoing FGM in recent years, it continues to be widely practiced in many communities in Nigeria, particularly amongst the Igbo. In light of this, the tribunal is not satisfied that the applicant would be able to access adequate state protection to protect her from the harm she fears.
Well-founded fear of persecution in Lagos
115. Having found that the applicant faces a real chance of persecution and there is a real risk of significant harm, the Tribunal must consider whether the risk of harm – FGM – is localised, or whether it is one that the applicant would face throughout Nigeria, including Lagos. For the reasons that follow, the Tribunal has concluded that the risk of harm is confined to the applicant’s parents’ home villages, and that there is no real chance or real risk of her being subjected to FGM in Lagos, either by her parents or anyone else.
116. It is not in dispute that both of the applicant’s parents have previously lived in Lagos for significant periods of time, especially her father who told the Tribunal he lived there for about 10 years. As the Tribunal has rejected the applicant’s parents’ claim that they must go into hiding on their return to Nigeria, the Tribunal finds that they can return to Lagos, the most populous city of Nigeria, with relative ease because they have a level of familiarity with the city.
117. The Tribunal notes that at the hearing when [Ms A] was asked why she could not live in Lagos and avoid having the applicant subjected to FGM, she did not claim that the extended family will force them to circumcise the applicant. Instead, she emphasised that she was not originally from Lagos, that they will have no house or employment in Lagos and they would have to go to the village to get support from her relatives.
118. In relation to the risk of persecution or significant harm – FGM – in Lagos, the Tribunal notes the following: [Ms A] said she could not remember when she had been circumcised, because she had been a baby at the time. She said that she realised when she was doing a [specific course] at university that she contacted her mother to ask her about it. She told her mother that this was not right. Her mother told her that [Ms A]’s parents had no choice; and that the person who had performed it was not a qualified medical practitioner so [Ms A] almost died as a result of it. [Ms A] told the Tribunal said that she did not have that much desire to have sex and that could cause problems in the marriage; her husband could “run around” or leave her. She said she was opposed to the practice. The applicant’s father also gave evidence to the Tribunal that he does not support FGM.
119. In light of the applicant’s parents’, particularly her mother’s, strong opposition to the practice and the country information, including from the applicant’s representative, which indicates that FGM is a widespread but far from universal practice, the Tribunal finds that the applicant’s parents will not circumcise the applicant, and in Lagos they would be able to resist the pressure of members of the extended family to circumcise the applicant.
120. At the hearing both of the applicant’s parents agreed with the proposition that noone in Lagos would know that the applicant’s father is Osu by ethnicity. They said that only people who know [Mr B]’s roots would know; the issue usually comes up at time of marriage. The Tribunal finds that the applicant’s mixed ethnicity or her father’s Osu ethnicity will not be known in Lagos and therefore the applicant does not face a real chance of persecution or real risk of significant harm as a result.
121. At the hearing, the applicant’s parents and representative reiterated that as the applicant was born in Australia, she could not obtain a Nigerian birth certificate. The Tribunal accepts that proposition. The representative’s asserted that the Australian birth certificate will cause problems for the applicant, but did not provide independent information in support.[13]
[13] See, for example, submissions to the delegate, dated 27 June 2014, at pp. 16-17.
122. The meaning of the expression ‘for reasons of ... membership of a particular social group’ is already set out above at paragraph 104. The persecution must be for reasons of the person’s membership of the particular social group. The bare assertion of the existence of a particular social group is not sufficient, without cogent evidence as to its existence, to satisfy the Tribunal that there is a particular social group which meets all the elements of the High Court test.
123. The Tribunal has carefully assessed the evidence before it, including the evidence provided by the applicant’s representatives, and it does not accept that there are cognisable particular social groups who are persecuted in Nigeria because of their membership of one of these particular social group consisting of persons/girls/women born outside of Nigeria, persons/girls/women born in the West, persons/girls with a foreign or Australian birth certificate, persons/girls without a Nigerian birth certificate, returnees from the West or any other combination of the applicant’s personal attributes, her residence in Australia and her Australian birth certificate.
124. While the applicant’s representative has provided country information about the discrimination suffered by girls and women in Nigeria, the Tribunal notes that the parents demonstrated at the hearing that they love dearly both the applicant and her sister. While the applicant is still a baby or a toddler, she will be in the care of her parents and the Tribunal is not satisfied that she is at risk of serious harm amounting to persecution in the reasonably foreseeable future as a Nigerian woman/girl or as a Nigerian woman/girl of Igbo ethnicity.
125. Because of the high rate of abductions in Nigeria, that claim deserves to be dealt with separately. At the hearing, the Tribunal asked the applicant’s parents about the claims they made that the applicant may be kidnapped, because they (the parents) would be considered to be wealthy. The Tribunal asked whether the applicant was aware of any cases where a returning Nigerian was kidnapped or harmed after living in the West. She said that she had heard of cases, but she did not personally know anyone to whom it had happened. The Tribunal advised the applicants that it was not aware of any country information indicating that criminals target people who have lived in the West, because such people are considered to be wealthy. When [Mr B] was asked about this, he said that everyone in Nigeria believes that if you have lived abroad you’re rich and that kidnappings are common and have been happening for many years.
126. The Tribunal accepts that Nigeria has a high rate of kidnappings.[14] According to The Economist, there were 500 reported cases in 2012 and 475 in 2011, and the true number may be even higher.[15] However, the Tribunal notes that Nigeria has a total population of Nigeria is some 167 million people.[16] On the evidence before it, and taking into account the fact that the applicant does not have a Nigerian birth certificate and that the family may be known to have lived in Australia, the Tribunal finds that there is less than a real chance or real risk of the applicant being kidnapped for the reasons claimed or for any reason.[17]
[14] Nigeria: Kidnapping for ransom, including frequency, profile of victims and kidnappers; response by authorities (2013-July 2014) [NGA104917.E], Immigration and Refugee Board of Canada, 21 July 2014, accessed at on 24 August 2015.
[15] ‘Kidnapping in Nigeria: A Holy Mess’, The Economist, 14 September 2013, accessed at on 24 August 2015.
[16] National Population Commission, Nigeria, accessed at on 24 August 2015.
[17] [17] ‘Kidnapping in Nigeria: A Holy Mess’, The Economist, 14 September 2013, accessed at on 24 August 2015.
127. According to the representative’s last submissions, dated 25 August 2015, the issues relating to health, education and employment related to the reasonableness of relocation dealt with further below. Previously, claims were made that the applicant faces a real chance of persecution or real risk of significant harm in relation to health, education and housing.
128. At the hearing, the Tribunal noted that it may find that both parents can return to Nigeria and find employment as they were employed before coming to Australia. Further and in any event, the Tribunal observed that it does not consider that the low quality of health care or education falls within persecution or significant harm. The representative noted that Lagos would be a place of relocation, that is, education, health and accommodation were raised in relation to the question of reasonableness only. The representative then said that health and education issues are only “protection claims” if the Tribunal were to find that Lagos is the applicant’s home area.
129. On the evidence before it, the Tribunal finds that the applicant will have a normal life with her parents in Lagos and she will grow up in a loving and caring environment. She will not face a real chance of persecution for any Convention reason, including for reasons of
·Being a Nigerian woman/girl
·Being a Nigerian woman/girl of Igbo ethnicity
·Being a person/girl/woman born outside of Nigeria
·Being a person/girl/woman born in the West
·Being a person/woman/girl with a foreign or Australian birth certificate, a person/woman/girl without a Nigerian birth certificate
·Being a returnee from the West
·Being a child from a marriage of an Igbo and an Osu or a mixed marriage
·[Family of the mother] and [family of the father]
·Any other combination of the applicant’s gender, ethnicity and other personal circumstances (including being born in Australia) and attributes (including not having a Nigerian birth certificate)
·General human rights conditions for children in Nigeria
·Being a member of a family of her mother who fears harm for reasons of being a member of the particular social groups
oNigerian women
oNigerian women who refused an arranged marriage
oNigerian women who marry without consent
oNigerian women who disobey husbands/brothers/family
oNon-Osu women who marry Osu men.

130. Having concluded that the applicant does not face a real chance of persecution for a Convention reason in Lagos, the Tribunal has decided, for completeness sake, to consider whether the claimed unavailability of appropriate health care, education and accommodation could amount to one or more of the following types of significant harm – arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
131. First, pursuant to s.36(2B)(c) there is taken not to be a real risk that an applicant will suffer significant harm in the receiving country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally.
132. The Federal Court has held that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on her individual exposure to that risk.[18] In SZSPT v MIBP, the Court held that while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s.36(2B)(c) applied because it was no different from the risk faced by the population generally.[19]
[18] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[13]; See also SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49] where it was said that ‘risk must be ‘faced by the individual personally in light of the individual’s specific circumstances’.
[19] [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]-[14].
133. The Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[20] Relevantly to the present case, this approach was also taken in MZAAJ v MIBP to the risk of harm from inadequate medical treatment.[21] As the Tribunal has found that the applicant can relocate with her parents to Lagos, it finds that she is likely to have access to better medical and education facilities and accommodation compared to people who live in remote parts of Nigeria. The Tribunal finds that the claims of the applicant’s particular vulnerabilities such as her weak immune system are entirely speculative and not supported by any independent medical evidence. The Tribunal finds that the applicant will face a risk that is faced by the population generally and therefore she is taken not to be at real risk of significant harm. In any event, the applicant does not at present suffer from any medical condition which requires treatment that may be available in Australia and not in Nigeria.
[20] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[15].
[21] MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.
134. Further, in relation to health care, the Tribunal finds that ‘significant harm’, as defined in s.5 of the Act, requires an element of intent on the part of a third party.
135. Unlike the other types of significant harm discussed further below, there is no definition of the expression “arbitrary deprivation of life” in the Act, and therefore no express element of intent. However, as the Tribunal’s Guide to Refugee Law points out although there is no express requirement that the arbitrary deprivation of life be intentional or arise from an intentional act or omission, the word ‘deprived’ itself may import an element of deliberateness. [22]
[22] Guide to Refugee Law, October 2012, Chapter 10, at 10-11.
136. The applicant has not provide any evidence, nor has the Tribunal found any country information, in support of a claim that the Nigerian authorities would deprive her of treatment available to the public generally or that there would be an element of deliberateness or discrimination in the potential inability of the health care system to treat the applicant in an adequate manner to ensure she survives. The inability of the authorities to provide the applicant with the necessary medical treatment would not constitute arbitrary deprivation of life and therefore not significant harm as defined in section 36(2A)(a).

137. The Tribunal notes that in international law the element of intent does not form part of what constitutes cruel or inhuman, or degrading treatment or punishment. McAdam and Albert go so far as to argue that “an absence of intent may distinguish ‘torture’ from ‘cruel, inhuman or degrading treatment or punishment’, which can be satisfied by mere negligence.”[23] Nevertheless, the Tribunal is not prepared to depart from the plain words of the Australian legislation. The definition in the Act includes an element of intent in relation to cruel or inhuman treatment or punishment as well as degrading treatment or punishment.
[23] Jane McAdam and Matthew Albert, “Complementary Protection Training Manual”, January 2012, accessed at p. 48.
138. The Tribunal considers that the meaning of the expression “intentionally inflicted” means that there is a causal connection between the significant harm and its infliction on a person, that is, the person or persons who carry out an action purportedly amounting to cruel or inhuman treatment or punishment intends that it causes “severe pain or suffering, whether physical or mental”.
139. Such a causal connection is clearly spelled out in the definition of “degrading treatment” which is defined in section 5 of the Act as an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
140. In the absence of cogent evidence to the contrary, the Tribunal finds that the Nigerian authorities would intentionally withhold or deny medical treatment to the applicant if and when she needs it.
141. In relation to education, the Tribunal notes that the alleged risks and issues the applicant will face at school may be said not to be current, nor in the reasonably foreseeable future. The applicant is only [age] year old at present. In relation to education, the Tribunal further notes that the claim was made that the applicant would not receive education, or adequate education, because she will be forced to “return” to rural Nigeria. As the Tribunal has concluded that the applicant can relocate with her family to Lagos, the Tribunal finds that the applicant is not going to be forced to go to an under-resourced rural school, but will instead have access to whatever facilities are available in Lagos.
142. The same applies in relation to education and accommodation: in the absence of cogent evidence to the contrary, the Tribunal finds that the Nigerian authorities would not intentionally deny the applicant access to education or accommodation.
143. The “education” claims that at school the applicant is at risk of physical and sexual abuse, including slavery, were bare assertions. To recite figures as the applicant’s representatives have done which show that, for example, there are 9 million orphans in Nigeria, that there is a high infant mortality or that 40% of children miss out on school, reveals very little about the applicant’s own situation and the risks she might face in Nigeria. In light of the fact that the applicant’s parents can both find employment in Lagos and that her mother is tertiary education, on the evidence the Tribunal finds that the applicant’s parents will make sure that she goes to as good a school as possible and that she will not be physically or sexually abused, forced to work as a child or be subjected to any “education” related harm.
144. The claims about the risk of sexual and physical abuse are largely the claims of concerned parents, but unsupported by independent country information. At the hearing, the Tribunal turned to the claims about the risk that the applicant would be subjected to physical or sexual abuse. [Ms A] said that in the village there are people who are unemployed, who do not have anything to do, and who can harm both [the applicant] and her sister. The Tribunal asked whether she was claiming that the same risks exist in Lagos. [Ms A] replied that she did not want to talk about Lagos because she cannot return there. It is not necessary for the Tribunal to determine whether the applicant might face serious harm at the hands of unemployed drunken vagabonds in her “home” area, because the Tribunal has already concluded that she faces a real chance of FGM which amounts to persecution. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance or real risk of sexual or physical abuse by anyone in Lagos.
145. Having assessed the applicant’s claims individually or cumulatively, the Tribunal finds that the applicant will be able to live a normal life with her parents in Lagos and she will not face a real chance of persecution for any Convention reason.
146. Having assessed all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that it 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 in Lagos.
Reasonableness of relocation
147. The ‘internal relocation principle’[24] was accepted by the Full Federal Court in 1994 in Randhawa v MILGEA on the basis that ‘[t]he focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’.[25] The Chief Justice reasoned that:
[24] Also known as the ‘internal flight alternative’ and ‘internal protection alternative’.
[25] Randhawa v MILGEA (1994) 52 FCR 437 at 440-1.
If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.[26]
[26] (1994) 52 FCR 437 at 441.

148. The High Court has confirmed as a general proposition that, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[27] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[28] Therefore, in determining whether an applicant is a person in respect of whom Australia has protection obligations, it may be necessary to consider whether the applicant might reasonably relocate to or remain in a region within their country, free of the risk of persecution.
[27] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.
[28] MIBP v SZSCA (2014) 314 ALR 514.
149. In relation to complementary protection, under s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.
150. On the evidence before it, the Tribunal finds that the applicant’s parents health issues – discussed under the heading “Material available to the Tribunal and parents’ ability to give evidence” – are not of such a serious nature that one of them may pass away or become physically or mentally incapacitated to an extent that they are unable to look after the applicant or be unable to look for work and lead normal lives as they did before their departure from Nigeria. While the applicant’s representative notes in her most recent submissions that the applicant’s father only works part-time because of health issues, the medical report from [Hospital 1] suggests that the most serious medical condition is the applicant’s father’s epigastric pain and that the H pilori bacteria eradication treatment “could certainly improve his abdominal pain”. Even if the applicant’s father is only able to work part time on return to Nigeria, her mother will have the capacity to work full time. The Tribunal finds that the applicant does not face a real chance of persecution or real risk of significant harm for reasons of her parents’ health problems.
151. At the hearing the Tribunal asked the applicant’s father what had happened to the business he was running before he came to Australia and if there was any reason why he could not re-open the business. He said that he started working with his father as soon as he finished school. While the father was alive there was an apprentice and a secretary. When the father died in 2008, [Mr B]’s brother, a secretary and “two other guys” worked in the business. He worked there until 2011 when he was abducted. He said he did not know what happened to the business. As already discussed further above in the decision, he claimed not to have spoken or communicated with his brother for a number of years. The Tribunal does not accept that claim and finds that the applicant’s father fabricated this aspect of his claims to exaggerate the family’s vulnerability on return to Nigeria. The Tribunal does not accept the claim that the applicant’s father does not possess any meaningful work experience, because he has only worked in a family run business. He is not as well educated as [Ms A] but he has several years of work experience.
152. It was put to the Tribunal that [Ms A] could not find work in Lagos because in Australia she has been out of the workforce. However, the Tribunal finds that the applicant’s mother is well-educated, with a law degree and with relevant work experience in Nigeria. It is not uncommon for people to take time off work, for example, due to family commitments or because they have been laid off from a particular job. It does not follow that the applicant’s mother will be unable to find employment in Lagos and the family will become destitute. Both parents speak English and as already noted they have previously lived in Lagos.
153. The Tribunal therefore finds on all the evidence before it and taking into account the individual circumstances of the applicant, her parents and her sister, that it would be reasonable for the applicant to reside in Lagos with her parents.
154. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under ss.36(2)(a) or (aa) because she can relocate within Nigeria.
155. As the Tribunal (differently constituted) previously affirmed the decision of the Department of Immigration to refuse the applicant’s parents and sister’s application for protection, the applicant does not satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
156. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Filip Gelev
Member