1511708 (Refugee)

Case [2019] AATA 2220

1511708 (Refugee) [2019] AATA 2220 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511708

COUNTRY OF REFERENCE:                  Nigeria

MEMBER:Rachel Westaway

DATE:14 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 14 February 2019 at 5:00pm

CATCHWORDS

REFUGEE – protection visa – Nigeria – particular social group – people suffering from mental illness – religion – Christian – imputed political opinion – attacks by Oodua People’s Congress – Reformed Ogboni Fraternity – fear of physical violence – supernatural powers – fear of extortion – availability of mental health services – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5L, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559 at 596
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Morato v MILGEA (1992) 39 FCR 401
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Subramaniam v MIMA (1998) VG310 of 1997
Subramaniam, Anandaraj v Minister for Immigration & Multicultural Affairs [1998] FCA 305
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423  
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 30 September 2013 and the delegate refused to grant the visa on 6 August 2015.

    The applicant appeared before the Tribunal on 9 February 2017 to give evidence and present arguments.

  3. The applicant was represented in relation to the review by his registered migration agent.

    RELEVANT LAW

  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.

    Refugee…

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Details
AGLC
1511708 (Refugee) [2019] AATA 2220
Case
[2019] AATA 2220
Decision Date

CaseChat Overview and Summary

The applicant, a Nigerian male, sought a protection visa in Australia, claiming fear of harm from factional groups in Nigeria, including the Oodua People’s Congress and the Reformed Ogboni Fraternity. He also asserted that his father's prominent role in a particular clan, and his own Christian beliefs, would place him at risk. Furthermore, the applicant claimed he would face discrimination and lack of adequate treatment for his mental illness if returned to Nigeria. The matter was before the Tribunal for review.

The central legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), and if not, whether he was entitled to complementary protection. This involved assessing the applicant's claims regarding persecution based on his imputed political opinion, his membership in a particular social group (people suffering from mental illness), and the availability of protection within Nigeria.

The Tribunal determined that the matter should be remitted for reconsideration. While the specific reasoning for this remittal is not fully detailed in the provided text, it is indicated that the Tribunal concluded the applicant satisfies section 36(2)(a) of the Migration Act. This suggests that the Tribunal found the applicant's claims regarding fear of harm and persecution to be sufficiently substantiated to meet the refugee criterion, necessitating a re-evaluation of his protection visa application.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has determined to remit the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant is [an age] year old Nigerian male who came to Australia on a student visa [in] February 2013 which was valid until [March] 2015. On 13 October 2013 he applied for a protection visa which is the subject of this review. The applicant claimed he feared for his safety by factional groups in Nigeria. He also stated that his father is a senior member and head of the [Clan 1]. He claimed to have been beaten and shot by these groups and he claims he cannot return because he will be harmed by these factional groups and forced to join them against his Christian beliefs and educational status. The applicant also stated that he is receiving psychiatric care in Australia and such care is extremely expensive in Nigeria and he and his family would not be able to pay for this. He stated that he would therefore be limited in his treatment options and would face serious discrimination and face the risk of being harmed by others in the community due to his mental illness. The applicant stated that the general public in Nigeria treat people suffering from mental health issues very badly and they receive no care and end up living on the streets and confront danger regularly. He claims protection is not available to him because he has a mental illness and he would be discriminated against based on his mental health. He also stated that the authorities do not have the resources and means to be able to provide protection against Boko Haram. The applicant supplied a statutory declaration providing further information to support his claims in his initial application and background information (ff. 113-120, Department File [number]). He stated that his parents separated when he was very young and his father had several wives and children. In his own immediate family he has [specified family members] who live in Australia and [specified family members] in Nigeria. He claims their family would not be considered wealthy but average. He claims to be of the Oruba ethnic group and a Christian. He estimated that his father took on the role of head of the [Clan 1] around [year] when a more senior member died. He stated that due to his father’s position he has spiritual powers which he uses to influence who rules in politics and he is knowns in political circles and with political leaders however because of his powers he lives a solitary life. He claims his father is a member and powerbroker and he is members of the Reformed Ogboni Fraternity (ROF) and most members of [his church denomination] in his area also belong to the ROF. He stated that it is a group where people who want to be political leaders must subscribe. He claims that sons of ROF members must be initiated into the group and he claims that he was informally initiated by his father. He said that the sign of a member is that they use an ‘oja’ which is a white handmade cloth used to cover themselves at night in private. M. he stated that he did not bring it to Australia. Its purpose is to shield the user from night marauders that may attack him including those in his dreams and spiritually. He stated that his family whilst being Christians also worship the God of Iron and they sacrifice a dog with a sharp piece of glass, cook its flesh and eat it and use holy drinks. He stated that this protects him

Evidence

Evidence Before The Court

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.CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has determined to remit the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant is [an age] year old Nigerian male who came to Australia on a student visa [in] February 2013 which was valid until [March] 2015. On 13 October 2013 he applied for a protection visa which is the subject of this review. The applicant claimed he feared for his safety by factional groups in Nigeria. He also stated that his father is a senior member and head of the [Clan 1]. He claimed to have been beaten and shot by these groups and he claims he cannot return because he will be harmed by these factional groups and forced to join them against his Christian beliefs and educational status. The applicant also stated that he is receiving psychiatric care in Australia and such care is extremely expensive in Nigeria and he and his family would not be able to pay for this. He stated that he would therefore be limited in his treatment options and would face serious discrimination and face the risk of being harmed by others in the community due to his mental illness. The applicant stated that the general public in Nigeria treat people suffering from mental health issues very badly and they receive no care and end up living on the streets and confront danger regularly. He claims protection is not available to him because he has a mental illness and he would be discriminated against based on his mental health. He also stated that the authorities do not have the resources and means to be able to provide protection against Boko Haram. The applicant supplied a statutory declaration providing further information to support his claims in his initial application and background information (ff. 113-120, Department File [number]). He stated that his parents separated when he was very young and his father had several wives and children. In his own immediate family he has [specified family members] who live in Australia and [specified family members] in Nigeria. He claims their family would not be considered wealthy but average. He claims to be of the Oruba ethnic group and a Christian. He estimated that his father took on the role of head of the [Clan 1] around [year] when a more senior member died.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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