1507135 (Refugee)

The applicant, a Nigerian national, sought review of a decision to refuse his application for a protection visa. The applicant had a history of unsuccessful protection visa applications, with a prior application refused by the Refugee Review Tribunal in 2003 based on a lack of credibility regarding claims of homosexuality. The current application was permitted to proceed under the complementary protection criterion due to a Federal Court decision allowing further applications for those whose prior applications were refused before the commencement of that criterion. The applicant’s claims for protection were based on a fear of harm from his father’s cult in Nigeria due to his Christian religion, and concerns that his family would be split if he were returned to Nigeria.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically under the complementary protection limb, given that his claims under the Refugee Convention had previously been found not credible. This involved assessing the applicant's credibility and whether, on his accepted claims, he faced a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Nigeria. The court also considered the implications of a prior Tribunal decision concerning the applicant's child, which found that the child was entitled to protection due to their mixed racial background and the father's imprisonment.

The Tribunal affirmed the delegate's decision, finding that the applicant's claims were not credible. The Tribunal noted inconsistencies in the applicant's statements and a lack of corroborating evidence. While acknowledging the applicant's stated fear of harm from his father's cult and the potential for family separation, the Tribunal concluded that these claims did not establish a real risk of significant harm under the complementary protection criterion. The Tribunal applied the principles of s.36(2)(aa) of the Migration Act 1958 (Cth), requiring substantial grounds for believing that removal would lead to significant harm, and found that the applicant had not discharged the onus of proof to establish such grounds. The Tribunal also considered the prior decision regarding the applicant's child, but found it did not alter its assessment of the applicant's own claims.

The Tribunal concluded that the applicant did not satisfy the criteria for a protection visa. Accordingly, the decision under review was affirmed.