1509551 (Refugee)

[2017] AATA 521

1509551 (Refugee) [2017] AATA 521 (17 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509551

COUNTRY OF REFERENCE:                  Nigeria

MEMBER:David McCulloch

DATE:17 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 March 2017 at 2:58pm

CATCHWORDS
Refugee – Protection visa – Nigeria – Religion – Christian – Political opinion – Refusal of custodianship of local oracle – Attacks by oracle members – Speaking out against oracle – Opposition to government corruption

LEGISLATION
Migration Act 1958, ss 36, 65, 426, 499
Migration Regulations 1994 Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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).  The applicant did not attend the interview that had been scheduled with the delegate.

2. The applicant, who claims to be a citizen of Nigeria, applied for the visa [in] December 2014 and the delegate refused to grant the visa [in] June 2015.

3. The applicant was invited by the Tribunal to appear before it on 17 March 2017 to give evidence and present arguments. He provided no response to that invitation and did not appear before the Tribunal at the time and place scheduled, nor did he make contact with the Tribunal to inform it of any change in his contact details or any reason why he was unable to attend.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report - Nigeria, 10 February 2015.

9. The issue in this case is whether the Tribunal can be satisfied that the applicant faces a real chance of serious or significant harm on return to Nigeria for the reasons claimed. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background and claims

10. The decision of the delegate (part of which has been provided by the applicant to the Tribunal) indicates the following in relation to the applicant’s immigration history. The applicant arrived in Australia [in] September 2014 as the holder of a [temporary] visa. The visa had been granted [in] September 2014 and ceased [in] December 2014. The application for the Protection visa was lodged [in] December 2014.

11. The application forms for the Protection visa indicate the following. The applicant was born on [date] in Enugu, Enugu State, Nigeria.  The applicant has never been married. The applicant is a Christian and belongs to the Igbo ethnic group. The applicant provides no details in response to a question asking for previous addresses outside of Australia. The applicant attended [number] years of education ending in [year] at [specified] level. The applicant provides no details of past employment other than to say that he was a businessman prior to coming to Australia. The applicant indicates that there are no members of either his family unit or close relatives not in Australia. The applicant indicates that, in Nigeria, he sought assistance from the United Nations High Commissioner for Refugees as to how to apply as a refugee.

12. The application forms indicate that further documents in support of the application will be provided. No further documents have been provided to the Department or the Tribunal.

13. The applicant claims that he left Nigeria so that he did not have to be custodian of the local ‘oracle’ or ‘shrine’ that is against his religion. The applicant indicates that he was attacked by members of the ‘oracle’ who condemned his stand against the oracle. These members consider that the applicant has acted against long-standing customs and tradition. The applicant has also been harassed and abused by these members. The applicant fears for his life if he returns to Nigeria.  If the applicant returns to Nigeria, he will go back as an outspoken Christian and will speak out against what he perceives to be an abomination and this will lead to problems. The applicant’s religion has placed him on a collision course with the people who would harm him. The applicant indicates that his preaching goes against the government because the government involves itself in social vices, like corruption, nepotism, sexual exploitation and blatant disregard for human life. The government have the applicant in their sights and will not protect him.

    Assessment

14. By letter dated 3 February 2017 the Tribunal invited the applicant to appear before it on 17 March 2017 to give evidence and present arguments. That letter was sent to the applicant’s last identified address for correspondence and noted that if the applicant did not attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable him to appear. The applicant did not respond to that invitation or make any contact with the Tribunal in respect of his scheduled appearance or the review application more generally.  

15. The Tribunal sent two SMS reminders of the hearing to the mobile phone number provided by the applicant on 10 March 2017 and 16 March 2017, respectively. Messages were returned indicating that the delivery of the messages failed.

16. Based on the evidence before, it the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and, in the circumstances, pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

17. The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

18. The Tribunal has had no opportunity to question the applicant about his claims in order to further explore the detail of his claims and to test his credibility.  Only brief details have been provided in the applicant’s written claims. Promised documentary support for the claims has not been provided.

19. In light of these issues, the Tribunal is not satisfied as to any substantive aspect of the applicant’s claims, or that the applicant faces a real chance of serious or significant harm for the reasons claimed, or for any other reasons.

20. The Tribunal is not satisfied that the applicant left Nigeria so that he did not have to be the custodian of a local ‘oracle’ or ‘shrine’.  The Tribunal is not satisfied that the applicant was attacked by members of the oracle who condemned his stance against it. The Tribunal is not satisfied that the applicant has otherwise been harassed or abused by members of the oracle. The Tribunal is not satisfied that the applicant’s religion has placed him on a collision course with members of the oracle, or anyone else. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on return to Nigeria reasons related to the oracle or due to the applicant’s religion.

21. The Tribunal is not satisfied that, on return to Nigeria, the applicant, as an outspoken Christian, will speak out against the oracle such as to lead to a real chance of serious or significant harm to the applicant.

22. The Tribunal is not satisfied that the government have the applicant in their sights due to the applicant preaching against the government for their vices. The Tribunal is not satisfied that there is a real chance of the applicant facing serious or significant harm on return to Nigeria on that basis.

23. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed, or for any other reasons.

24. In summary, in relation to the Refugees Convention criterion, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason, for any of the reasons claimed, or for any other reasons.

25. In summary, in relation to the complementary protection criterion, the Tribunal is not satisfied 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 he will suffer significant harm, for any of the reasons claimed, or for any other reasons.

26. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

27. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

28. There is no suggestion that the applicant satisfies 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

29. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    David McCulloch
    Member