1412486 (Refugee)

Case [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

  1. 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).

  2. 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.

  3. 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.

  4. The applicant was represented in relation to the review by her registered migration agent.

    RELEVANT LAW

  5. The criteria for a protection visa are set out…

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Details
AGLC
1412486 (Refugee) [2015] AATA 3986
Case
[2015] AATA 3986
Decision Date

CaseChat Overview and Summary

In the case of 1412486 (Refugee), the applicant, an infant, sought a protection visa on the grounds that she faced persecution in Nigeria due to her mixed marriage heritage. Her parents, both Nigerian nationals, claimed that they would be persecuted for their inter-tribal marriage, which is forbidden by the Igbo tribe. Additionally, the applicant’s mother alleged that she would be at risk of significant harm, specifically the threat of female genital mutilation (FGM), due to her family ties. The Tribunal had to determine whether these claims met the criteria for a protection visa under the applicable legislation. The primary legal issues were whether the applicant had a well-founded fear of persecution or faced a real risk of significant harm due to her membership in a particular social group.

The Tribunal carefully examined the credibility of the parents' claims and the supporting evidence. It found inconsistencies in the parents' statements, such as the fictional existence of the mother’s first husband and conflicting marriage dates. Furthermore, the Tribunal identified the use of forged medical documents to secure a temporary Australian visa and noted exaggerated medical claims. Given these findings, the Tribunal concluded that the parents' claims were not credible. The Tribunal also considered the practical difficulties of relocating within West Africa, despite Nigeria being a member of the Economic Community of West African States (ECOWAS), which theoretically allows for freedom of movement among member states. However, the Tribunal acknowledged that these rights were often restricted in practice due to various limitations and bureaucratic hurdles within the member states.

Consequently, the Tribunal affirmed the original decision to refuse the applicant's protection visa application. The court found that the applicant did not meet the criteria for a protection visa, as the claims of persecution or significant harm were not substantiated. The Tribunal’s decision was based on the lack of credible evidence and the practical limitations of relocating within ECOWAS countries. The final orders affirmed the decision to refuse the protection visa application, and the parents subsequently withdrew their appeal to the Federal Circuit Court.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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