1608286 (Refugee)

1608286 (Refugee) [2019] AATA 6696 (20 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608286
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Jane Marquard
DATE:20 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 August 2019 at 8:03am
CATCHWORDS
REFUGEE – protection visa – Nigeria – imputed political opinion – husband’s political involvement – Action Progressive Congress (APC) – murder of husband and child – particular social group – mental health conditions – PTSD and Traumatic Grief – stigma associated with mental illness – access to mental health services – credibility concerns – vulnerable person – photographic evidence of marriage and child – evidence of claimed murder – validity of non-disclosure certificate – ‘internal working document and business affairs’ – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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
OVERVIEW OF APPLICATION FOR REVIEW

The applicant is a woman from Nigeria. On 20 March 2015 she was granted a [visitor] visa. She arrived in Australia [in] April 2015.
She applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 20 May 2015.
On 20 May 2016 a delegate of the Minister for Immigration (the Department) refused her application for a protection visa.
This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal).
After consideration of all the evidence, the Tribunal has decided to affirm the decision under review as the applicant does not meet the refugee or complementary protection criteria. Notwithstanding that the Tribunal does not accept the applicant’s account of what took place in Nigeria, the Tribunal has considerable sympathy for her. She lost her father in 2017 and this brought her ‘loneliness and unbearable grief’. She had a stillborn child in 2019 in Australia, and clearly this has devastated her. She spoke of loss of the child ‘she had longed for’. The Tribunal accepts that she has suffered greatly as a result of these incidents.
CLAIMS AND EVIDENCE
In coming to a decision the Tribunal has taken into account the evidence produced to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Nigeria.
Evidence before the Department
Information before the Department indicates that the applicant was granted a[visitor] visa on 20 March 2015. She was granted the visa as one of [the] employees of [Employer 1] in Abuja for the purposes of travelling to Australia to attend [a] conference on [specified issues] in [City 1] in March 2015. Her visa ceased on 13 April 2015 and she became an unlawful non-citizen. On 20 May 2015 she lodged her protection visa application.
The applicant stated in her application forms for the protection visa that she was born in [year] in Lagos, Nigeria. She speaks Ibo and Yoruba, belongs to the Ibo ethnic group and is a Christian. She lived in Lagos until she was [age] years old then moved with her family to Benin, Edo-State, where she lived until she travelled to Australia. She said that she attended school in Benin and [Town 1], and from [year] to [year] studied for a [qualification] in Benin. She has a son, born in [year], who was born in Benin. Her parents and [siblings] are still living in Nigeria. From 2007 until 2011 she operated a business called ‘[Business 1]’. Prior to travelling to Australia she was still living in Benin.
The applicant has a Nigerian passport, issued [in] 2011.
She said that she left Nigeria because her husband and son were assassinated, and she fears being killed if she returns. She fears the ruling political party and the authorities of the country. After the deaths, her pastor arranged for her to move from Benin to Lagos to stay in the church parish. She claims that one Sunday, a few weeks later, some strange men came to ask about her. So she felt that she had to leave the country. She could not relocate to another part of Nigeria because the party has powerful connections and she would be easily harmed.
The applicant also provided a handwritten statement as part of her application to the Department for a protection visa. In this statement she claimed that:
·She was born in [year]. Her family had a [specified] business.
·She was married in 2010. Her husband, [Mr A], was a [Occupation 1]. He was a devout Christian, and participated in political affairs. He belonged to the leading party of the state, the Action Progressive Congress (APC). She and her husband were very close.
·She had a son, [Child B], from a previous relationship, born on [date].
·She had a son with [Mr A] called [Child C], born on [date].
·From 2012 her husband became more active in APC, participating in [various events].
·Problems arose in 2014 from members of the opposition party as well as some of his own party members. Her husband became despondent and withdrawn. She worried for him and suggested calling the pastor. Her husband then opened up to her and told her that there was a threat to his life from members of his own party as he had threatened to defect to another political party due to corruption in his own party. There was a planned rigging of elections against the opposition People’s Democratic Party. He wanted to expose his party, and thus threatening text and telephone messages were sent to him. He told the police but they said not to be concerned as two of the messages were from a woman, and this may have been a woman who had had an affair with him.
·In early August 2014 her husband said he would bring home a flash drive on which was a recorded conversation of plans to rig the elections, but he had not brought it home.
·On 4 August 2014 at midnight she woke up to say her prayers. She noticed her husband was not in bed. He and [Child C] had fallen asleep watching soccer in another room. She decided to take [Child C] to his room when she heard voices. She saw the shadow of a man raising a cutlass and wearing a mask. She sensed the presence of another man, who had a sledge hammer. She saw her baby who was only [age] years old, covered in blood at [Mr A]’s feet. At that moment one of the men called out, saying that whoever was there should come out or be killed. She tiptoed and hid behind a glass door. The men ransacked everywhere saying ‘where is the disc’. She jumped out the window and ran into the bush. She stayed there for perhaps 10 hours, and is sure she must have passed out. She went to her pastor who told her that certain men had come calling on him the previous week asking about her family. She told him what had happened. A small burial was arranged for her family. She then took her passport and belongings and left the country.
Decision of the Department
The Department noted that she had told officers at Sydney airport that she was a [Occupation 2], and that in her visitor visa forms she stated that she was an [employee] of [Employer 1] in Abuja State. The Department noted that she had delayed her application until after the expiry of her visitor visa. The Department rejected her claims in their entirety.
Evidence before the Tribunal
Prior to the Tribunal hearing the applicant provided a statement dated 24 March 2019. She was invited to appear at a hearing of the Tribunal on 4 April 2019. On 3 April 2019 she requested an adjournment as she had given birth to a still born baby on [date]. A letter from [Hospital 1] was provided. The adjournment was granted. A new hearing was scheduled on 18 June 2019 and the applicant appeared on that day.
She provided the following documents to the Tribunal:
·Copy of Birth Certificate for [Child C], born [date] in Benin City. His father is named as [Mr A], and his mother as the applicant. The birth certificate was issued [in] 2016.
·Copy of Death Certificate for [Mr A], date of death [date] at age [age] in Benin City. His address is stated to be [Address 1]. The certificate was issued [in] 2014.
·Copy of Certificate of Death for [Child C], date of death [date], age of death [age]. The certificate was issued [in] 2014.
·Copy of letter dated 26 March 2019 from [Dr D] at [Medical Centre 1], [Suburb 1], who said that he had been the applicant’s general practitioner for two and a half years. He reports that the applicant had been troubled by depression, loneliness and thoughts of self-harm. He said that she still had troubles of post-traumatic stress disorder (PTSD) related to the violent trauma experienced by her family when her husband and son were murdered. She was also grieving the loss of her father who died in ‘recent months’. He said that she had been making good contributions in her work in aged care and disability. She belonged to a church and is a regular blood donor, and is planning to study.
·Extract from [a Nigerian police officer diary]. The Diary Extract ‘Details of Entry’ stated that ‘today being [date] at about [time], (the applicant)..came to the station and make a report of the assassination of one [Mr A] (father) and [Child C] (son) both of them are residing at [Address 1]…(the applicant) make a report that on 4^th August 2014 some gang of hire assassin came to the above address…and killed [Mr A] and his son [Child C] and all efforts that they made to trace them proved abortive. Action: based on the information of the Report. Extract is issued to them to contact issuance authority for necessary investigation.’
·[Mental Health Service 1] report of treatment for the applicant dated 16 June 2017. The report states that she fled Nigeria after coming home to find her then [age] year old son and husband brutally killed. The report stated that she presented with symptoms associated with Traumatic Grief and PTSD. In the professional opinion of the social worker her symptoms correlated with someone who had witnessed the loss of loved ones in a horrific manner.
·Discharge papers from [Hospital 2] dated 23 April 2018 stating that the applicant was admitted on 12 April 2018 and discharged on 20 April 2018. She had presented at [Hospital 1] due to suicidal ideation. She mentioned that she had lost her father in December 2017 and was unable to attend to the funeral rites. She had wanted to kill herself but images of her deceased son and feeling his presence was there had stopped her. It had recently been her son’s birthday which was difficult for her.
A summary of the applicant’s evidence before the Tribunal and in written submissions is set out below:
·The Tribunal member expressed condolences at the recent loss of the applicant’s unborn child and indicated to her that in light of the trauma of losing her child, the hearing could be paused at any time and the Tribunal would do all it could to ensure that she was supported. The Tribunal also acknowledged medical reports provided which referred to PTSD and depression. The Tribunal asked her how she was feeling and if she felt capable of giving evidence. The applicant said that she was willing and able to give evidence. During the hearing the Tribunal asked a hearing officer to assist the applicant on a number of occasions when the applicant became distressed, and took a break when needed.
·The applicant confirmed that her parents came from Lagos and she was born there. Her family then moved to Benin when she was [age] years old. Her father was an [Occupation 3] and regularly moved job locations. Her mother looked after the children and later on she worked as a [Occupation 4]. The applicant has [a number of siblings] and [step siblings]. Her mother is living in Benin, and her sisters live in Lagos and Benin. Some of her step brothers are overseas and others in Nigeria. She has uncles, aunts and cousins in Lagos and Benin. She is not very close to her mother but she is close to her sisters.
·The applicant started primary school in Lagos then finished primary and high school in Benin in about [year]. She worked for a few years as a [Occupation 5] and then went to university in Benin. She qualified with a [Qualification 1]. After university her mother helped her set up a business selling [goods]. She bought the products in Lagos and sold the products from home, then later from a shop. She gave the business to her younger sister when she came to Australia.
·The applicant’s son [Child B], who is nearly [age] years old, is living with her mother. [Child B] was living with her until she came to Australia, but he sometimes lived with her mother.
·In 2009 she had gone to do her hair at a friend’s house and she met her husband, [Mr A], who was also from Benin. They married in February 2010. They did not have a big wedding as she had already had a child prior to marriage. They had a small traditional wedding at her parents’ house. She is Christian but did not have the wedding in a church. She asked the pastor who said that he did not support it as they were living together.
·There were photographs of the wedding but she could not get hold of them after the ‘incident’. She also has no photographs of her son, [Child C]. She said she could not get the photographs because ‘things got spread between her sisters and mother’. Asked why she did not get her sister to get hold of the photographs for her, she said that her sister was working, and so she asked her mother to get hold of the photographs, but her mother ‘kept making excuses’. She said she had to rely on her in-laws. She then said that her sisters took the photographs. Her mother said she did not want to go to the house. She asked her sister to send her photographs, the clothes she was wearing and her ring, but they said they could not find these items. She was asked why her mother and sisters did not locate and take care of these items considering the tragic circumstances. She said that she was not close to her mother. Asked if her father could not have got hold of these items for her, she said that he was old. She said that she did not have a marriage certificate from the registry as they had a traditional marriage.
·She said that [Child C] was born on [date] in [a] hospital. [Mr A] was a [Occupation 1] working in a [company]. He was always interested in politics. She was not interested in politics. They were living in a three bedroom [house]. They lived very close to her parents. Her mother helped her with the children. Her sisters lived a little further away. There was a shopping area close by.
·[Mr A] joined a political party called the Action Progressive Congress (APC). He went to meetings and ‘helped the big bosses with rallies and campaigns’. APC was the ruling party, and he felt that it was a ‘good party and could make a difference’. He did not always talk about it, but sometimes he would talk about how things could be changed and it was good for society. She did not know much about it. She did not know who the leaders were although she knew some of his colleagues. He helped with [various campaigns]. He ‘started small’, and later on ‘he was more involved and he went to more meetings’.
·In 2014 he told her he was stressed as he wanted to do good things but people did not always support him. She told him that maybe later on people would support him. He stopped talking about new developments in 2013. In 2014 things were a bit better and they had a good new year. She knew something was weighing on his mind. During 2013 she asked him if everything was alright, and he said it was, as he did not want to drag her into his affairs. In late 2014 he seemed ‘down’. She asked him ‘if everything was ok’ and he said he was fine and ‘she would not understand’. Then he told her that some people were ‘not in favour of the party going forward’. She reassured him that other people had their own opinions, but he did not like this view and stopped talking to her and she knew something was wrong. He did tell her that he had confided in a friend about some corruption. Asked if we could call the friend he had confided in, she said that she did not speak to him anymore.
·She was asked if she knew who won the elections in 2015. She said that she was not too sure. She thought [Mr A] was supporting the ruling party.
- The applicant asked [Mr A] if he wanted to talk to someone, like her father or a doctor. He said that he would be fine. There were no other indications that anything was wrong, except that he was withdrawn. He said that someone was calling him on blocked numbers, telling him to ‘stop now or he would be in danger’. She told him that they should report this to the authorities, which they did together, but the police did not do anything about it, saying that if it carried on they should come back. Asked how long after the texts the murders took place, she said ‘maybe weeks’.
·When the men who murdered her son and husband were in the house, they mentioned a flash drive. She was asked if the men knew that she was in the house when the murders took place, and she said they may have known she was there. Asked if they would not have looked for her if they knew she was there, she said that they did, but they would not have known which door to go through. She said that she does not know how many people were in the house, ‘maybe two or three’. Her other son was with her mother at the time. She does not know who the men were talking to when they were asking about the disc. She escaped and hid in the bush. Asked why she did not go and seek help straight away for her husband and son, she said that she panicked. She could not think straight. Asked why she would not go to her parents’ house which was nearby, seek medical help or call the police, she said that she does not know why and she was just selfish and blames herself. She does not know how long she was in the bush for. She was asked who the first person she saw afterwards was. She said she wishes she was close to her mother. She was asked if she could have gone to her father, and she said he was blind and old. She said she walked to the pastor. Asked when this was, she said that she thinks that it was night time. She said ‘who harms a child?’
·Asked why she would not go to the police when she saw her husband and son being attacked, she said the Nigerian police did not help with the threatening calls when they had approached them. The Tribunal asked her if they would not take a murder seriously. She said that she went to the police ‘later’. Asked why she did not go to a neighbour to call help, she said that she was not thinking.
·After she went to the pastor he said that they needed to go to the police, so they went straight to the police station in the evening. The police went to the house and started a murder investigation. The police asked her some questions. Asked how she knew her husband and son had passed away, she said the pastor told her that they had passed away, but from what she saw it would have been hard for them to make it.
·She was asked what she did after going to the police and she said she went to her mother’s house, but ‘then she had to go back to the pastor’s house as she felt lost’. The pastor and her family arranged the burial. She was asked when the funeral took place, and she said her mother ‘did most of that’. She said that it was a few days later’. She was asked if there was an autopsy but she said that the police did not want to keep the bodies for investigation. Somebody at the hospital gave her a death certificate.
·Asked what the outcome of the police investigation was, she said that the police did not provide an outcome. Asked if she checked on the outcome, she said that she did. They asked her questions about whether he had problems at work or owed any money.
·She did not attend the burial as she was too upset. She was also advised by her pastor that ‘those people’ may be around at the burial. Her sisters went to the burial, as in her culture her mother could not attend. Asked if people from her husband’s place of employment attended, she said that one of the men did attend.
·She did not stay with her parents after the murder as she went to Lagos as she did not feel safe. She did not take her other son with her because he was with her mother most of the time.
·The political party did pay their respects. She did not want to see anyone at the time. She did not know who to trust.
·The incident was not reported in the newspapers. Asked why a murder of a person significantly involved in a political party and his son would not be reported upon, she said that it was ‘too much for her to handle’. It would have been too much for her. He was still rising in the party. She did not get as much support from her mother as she would have liked, although she got support from the pastor and her sisters. She ‘misses the little boy a lot’.
·She was asked about the birth certificate dated [in] 2016 and the death certificates which were provided after the Department hearing and why they were not provided earlier. She said that her sister provided it and ‘a lot of things went wrong in the house. The original birth certificate must have been in the house’.
·It was put to the applicant under the procedures of s.424AA of the Act, that she had stated in her application for a visitor visa and passenger cards that she was a [Occupation 2], providing corroborative documents, information which is inconsistent with the information she has provided to the Tribunal. This indicates that she may not be telling the truth to the Tribunal at least about her occupation and indicates a propensity to provide false information. She commented that she only said that to get into the country, otherwise she could not get in.
·She said that she could not relocate to Lagos because the pastor said that people were asking for her there, so she could not be safe. She could not move anywhere else in Nigeria as she did not feel safe.
·Her father arranged for her sisters to remove things from the house. She was asked if she had any other information to demonstrate that she had a husband and child, such as medical documents or lease documents. She said they paid cash and she only had a birth certificate.
·Asked if there was anything she wanted to say, she said that she was grateful that the Tribunal did not ask about her recent loss of her child. She just wanted to be safe and for Australia to help her.

In her post-hearing submission she said that at the Tribunal hearing, she was in a ‘bad place, broken hearted, still grieving from yet another recent loss of a child she had longed for’. She said that she was not able to provide all the answers so she would clarify the answers in the submission. She made the following clarifications:
·She did not present photographs from her traditional wedding as they were not ‘in her case’ and she could not bear looking at these photographs.
·When asked if the Tribunal could call someone to verify the assassination, she said that she did not want to as she does not want to disclose her whereabouts as those seeking her out could find her.
·She has struggled with her mental health and is grateful for the support she has received through [Mental Health Service 1] and from a bereavement officer. In Nigeria, people are quick to attribute mental health problems to witchcraft, bad luck and possessed demons.
·She could not go to her parents’ house on the night of the murders as her ‘brain had freezed, her head was not thinking right’. She passed out for some time. When she regained consciousness she went to the first place she thought of. She did not go home as she had never mentally ‘shared a bond with her mum’, who was not affectionate to her. As a child she told her mother about something that happened, and her mother beat her and told her to keep it quiet. Her mother blamed her for what happened to [Child C]. Her father suffered from blindness and could not do much for her. Her sisters were nice to her but each one had their own lives to live.
·She wasn’t able to be safe and live without having to look over her shoulder.
·After the ‘evil happened’, [Mr A]’s family helped ‘look after things’, and the materialistic things meant nothing to her, even her wedding ring. Her mother said that she could not find her jewellery.
·When she got to the police station, she did not get sympathy and was made to look crazy. One officer told her she was lucky to be alive.
In her post-hearing submission, she provided copies of the following documents:
·A receipt in the name of [Mr A] and [the applicant], from [a shop], Benin dated 23 November 2010 for [purchased goods].
·Two house rent receipts dated 15 June 2012 for the months of 15 June 2012 until 14 June 2013, and dated 15 June 2009 for the months of 14 June 2009 to 14 June 2010 in the name of [Mr A].
·Two house rent receipts dated 14 June 2010 for the months of 14 June 2010 to 13 June 2011 and dated 14 June 2013 for the months of 14 June 2013 to 13 December 2014 in the name of [the applicant].
·A Birth Certificate for [Child C] dated [in] 2016 in Benin with the names of the applicant and [Mr A] listed as parents and stamped by the National Population Commission.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. A summary of the relevant law is set out in Attachment A.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is not bound by legal forms and technicalities or rules of evidence, although can be guided by them. The Tribunal considers all of the evidence available in order to make the correct or preferable decision.
The findings of the Tribunal, based on the evidence provided, are set out below.
Findings of fact
The reasonable approach to fact-finding
When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1]
[1] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Further, there may be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[2]
[2] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
The Tribunal is guided by these decisions, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[3] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[3] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal has considered carefully the overall consistency and coherency of the applicant’s account, as truthful witnesses often present coherent, consistent and detailed accounts of events. The Tribunal notes however that psychological research on memory of trauma[4] indicates that inconsistencies, fragmentation of memory and lapses in memory do not necessarily reflect lack of veracity in relation to recalled events.
Taking into account vulnerability
[4] Conway, M, ‘Episodic Memories’, 47 Neuropsychologia 2305, 2009; Herlihy, J, Jobson, L and Turner, S, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’, 2012 26 Applied Cognitive Psychology 661
The Tribunal has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons,[5] in light of the evidence about the applicant’s mental health. A [Mental Health Service 1] report dated 16 June 2017 indicates that the applicant had been treated for three months. The report stated that she presented with symptoms associated with Traumatic Grief and PTSD. Supportive counselling and relaxation techniques were being provided as treatment. The Tribunal accepts that PTSD and Traumatic Grief may affect how an applicant gives evidence. In particular, an applicant may have variations in detail provided about an event and disclose new information about an event, or may have altered expression of emotion.[6]
The death of the applicant’s husband and child in Nigeria
[5] AAT, Migration and Refugee Division , Guidelines on Vulnerable Persons, available on the AAT Website, UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017
The Tribunal has taken into account the decisions and guidance referred to above. However, the Tribunal has serious concerns about the veracity of the applicant’s evidence relating to her husband and child for a number of reasons, considered cumulatively.
Firstly, she has not provided evidence of her marriage to [Mr A], such as a marriage certificate, or photographs of the wedding. She has said that they had a traditional rather than a church wedding, however it is common for photographs to be taken at all weddings. She also has not provided photographs of herself and [Mr A] as a couple on other occasions. It would be expected that at least one photograph would be in existence, and that even if not in her own records, she could have accessed them through family or friends in Nigeria. She told the Tribunal that her father arranged for her sisters to remove things from the house so it would be expected that she would have these items.
At the Tribunal hearing the Tribunal member discussed these concerns with the applicant. When asked about the absence of photographs she said that she could not bear looking at photographs. The Tribunal accepts that such photographs may bring her sadness, however it would be expected that she would have been able to produce at least one photograph to the Tribunal. The Tribunal asked her if she had lease documents for the house, or any other items to evidence their relationship. She said that she did not and paid cash for rent. However, following the hearing, she provided copies of a number of lease documents which contained her name and [Mr A]’s name, and a receipt for purchase of furniture. The Tribunal has given these documents little weight, considering the late presentation of this evidence, her statement to the Tribunal that they paid cash and did not have these documents, and the fact that, as discussed with the applicant, Nigeria experiences high rates of document fraud with most documents being able to be falsified and procured, from birth certificates to diplomas.[7]
[7] DFAT, Country Information Report Nigeria, 9 March 2018, Immigration and Refugee Board of Canada, Prevalence of fraudulent documents etc, NGA 106159.E, 28 August 2018, >
Further, while telling the Department that she and [Mr A] were very close, she knew very little of his political involvement. The Tribunal asked the applicant if she knew who won the elections in 2015. She said that she was not too sure and she did not know the leaders. She said that she thought that [Mr A] was supporting the ruling party. It would have been expected that if she did suspect that he was murdered for political reasons, she would have some very basic knowledge and insight into the party he supported and those who she suspects killed him, even if she was not interested in politics.
Secondly, the applicant did not provide any photographs of her child [Child C]. It does seem unusual that she would not have at least one digital or print photograph of her child, or other items to remember him by such as clothing or toys. She was able to obtain her personal documents from the house where the murders allegedly took place from the pastor, and as she had done so, it would be expected that she would have wanted to obtain photographs of her son. Before the Tribunal hearing she produced a birth certificate for [Child C], stating that her sister ‘must have had access to the house’ in order to obtain the certificate. She also told the Tribunal that her ‘sister took the photographs’ and her father arranged for her sisters to remove things from the house so it would be expected that she would have these items.
The only evidence she has provided of her son, [Child C] are the birth and death certificates, which were only provided after the Department decision. She has said that she was close to her three sisters such that it could have been expected that they could have provided her photographs or personal items pertaining to [Child C]. In fact she has said that she gave her business to one of her sisters when she left for Australia. Yet she was unable to get photographs or documents from them. When asked about this, she said that things got ‘spread between her mothers and sisters’. She said that her sister was working and her mother kept making excuses and she was not close to her mother. The Tribunal does not accept that she could not have accessed photographs given the closeness to her sisters and the fact that her mother was looking after her other son.
The Tribunal affords the birth certificate little weight as it was not provided to the Department despite the fact that she had an agent assisting her in Nigeria, her family obtained documents from the house, and as discussed with the applicant, there is prevalence of fraudulent documents in Nigeria.[8] The Immigration and Refugee Board of Canada has said that:
According to the IRCC representative, of particular interest is Benin City in Edo State which is notorious for internet-fraud scams, fraudulently issued civil documents, criminality, robberies, and kidnappings; all these things are very common. For example, if a birth certificate was registered extremely late and it was issued in Benin City, we would not put much weight on the document. (Canada 14 Feb. 2018a)
The IRCC Migration Program Manager added that "any document that comes out of Benin City" is discounted and that such documents are unverifiable (Canada 14 Feb. 2018b).According to the researcher, "[t]he most notorious and frequent form of documentation fraud is found with birth certificates" (Researcher 17 Aug. 2018). The IRCC representative indicated that many civil documents, such as birth certificates, can be issued on the strength of a statutory declaration. Even if verified as being legitimately issued by the proper issuing authority, the value placed on the document is minimal. (Canada 14 Feb. 2018a).[9]
[8] DFAT, Country Information Report Nigeria, 9 March 2018, Immigration and Refugee Board of Canada, Prevalence of fraudulent documents etc, NGA 106159.E, 28 August 2018, Immigration and Refugee Board of Canada, Prevalence of fraudulent documents etc, NGA 106159.E, 28 August 2018, >
Thirdly, the Tribunal has found it very difficult to accept the evidence that the applicant gave about the attacks on her husband and child. The applicant said that she woke up to say her prayers at midnight and noticed that her husband had not gone to bed. He and [Child C] were watching a football match in the parlour and ‘perhaps fell asleep on the couch’. She said that she saw the shadow of a man raising a cutlass and wearing a mask and her baby covered with blood at his feet. She said that ‘at that moment’ one of the men called out, saying that whoever was there should come out or be killed, but that she managed to tiptoe behind a glass door. She said that they ‘ransacked everywhere’ asking where the disc was. She then jumped out of a window and ran into the bush, where she stayed for 10 hours, and ‘must have passed out’. She then went to the pastor’s house. At the Tribunal hearing she said that the men may have known that she was there but ‘they did not know which door to go through’. She said that she did not know who the men were talking to when they asked where the disc was.
On the basis of this evidence it appears unusual that the intruders did not find the applicant in the house, considering they called out to her, and were ‘ransacking’ the place. She was there long enough to observe them asking for a disc as well as ransacking the house and they called out asking if someone was in the house. Furthermore if they had killed her husband and child, it appears unusual that they would be asking where the disc was. Most importantly the Tribunal is not satisfied that the applicant would not seek help for her husband and child once she escaped by jumping out of a window. The Tribunal does not accept that she would not immediately have sought help from neighbours or passers-by to call the police and ambulance, or at the very least that she would not have run to her parents’ house, which was ‘very close’ to seek help. She did not at that stage know that her husband and child were dead, saying that the pastor told her this later, and it just seems implausible that she would not seek help if she thought that they had been hurt and were in imminent danger. The Tribunal is not satisfied that she passed out in the bush for ten hours and then went to the pastor’s house. Even if she did pass out for a while, it would be expected that she would have sought help from family or the police when she woke up. When asked about this by the Tribunal she said that she did not seek help from her family as she never mentally ‘shared a bond with her mother’ and her sisters had lives to lead. However this was a dire situation and it would be expected that a family would assist. Earlier in her evidence she said that she was close to her sisters and her mother helped her set up her business and was looking after her other child. She has not provided a plausible explanation as to why she did not seek out their help even if she was not close to her mother or her sisters were busy, only saying that she was not thinking, she was selfish, she does not know why and she blames herself. The Tribunal has taken into consideration the fact that people may react to trauma differently, however the Tribunal does not accept that she would not seek help for her child, when considering the other evidence cumulatively. Further, asked if the Tribunal could call someone to verify the assassinations she said that she did not want to disclose her whereabouts as those seeking her could then locate her. The Tribunal does not accept that there would not be close family members or friends who would not be able to verify her story without disclosing her location.

Fourthly, the Tribunal gives the ‘police report’ provided little weight. The report is in the form of a Crime Diary which extracts ‘Details of Entry’. This report is not of a type which would be expected in a murder investigation. Independent sources suggest that a crime diary is used for property loss or incidents not investigated.[10] Sources suggest that when an offence is reported to the police, there are no written documents that are issued to the complainant by the police but an ‘interim police investigation report’ can be issued by the police at the complainant's request after ‘some actions have been taken on the case.[11] Asked why the report was in the form of a crime diary, she said that she was given the report as evidence of the circumstances of the case. She said that the police did not investigate as powerful people were involved. The Tribunal also discussed with her suggestions in the crime diary that efforts had been made to trace the assassins. She was not able to provide an answer as to why this is stated on the crime diary as she said there was no report. She said that there was no report of the police going to the house or finding the bodies and the police made her look crazy. The Tribunal does not accept that she would not have been able to initiate a police investigation into the murder of a supporter of the ruling party and his child, given her husband’s work and political connections and family assistance. Given the prevalence of forgery of documents in Nigeria[12] the Tribunal is not satisfied that the police report is evidence that the murders took place, particularly given that it refers to property and contains information about assassins not being traced. Sources indicate that police documents, including police certificates are not verifiable or reliable and there is a high degree of corruption in the police force.[13]
[10] Immigration and Refugee Board of Canada, Nigeria: Documents issued by police during criminal investigations or in response to a complaint, including police reports; procedures for an individual to obtain a copy of a police report within the country as well as from abroad; appearance of police reports, including whether there are uniform characteristics or variance across the country (2015-November 2017), 6 November 2017, NGA105999.E, available at: Immigration and Refugee Board of Canada, Nigeria: Documents issued by police during criminal investigations or in response to a complaint, including police reports; procedures for an individual to obtain a copy of a police report within the country as well as from abroad; appearance of police reports, including whether there are uniform characteristics or variance across the country (2015-November 2017), 6 November 2017, NGA105999.E, available at: DFAT, Country Information Report Nigeria, 9 March 2018
[13] Immigration and Refugee Board of Canada, Prevalence of fraudulent documents etc, NGA 106159.E, 28 August 2018, >
Fifthly, the death certificates provided are given little weight because of the very vague evidence the applicant provided about how she got hold of these certificates, and in light of evidence about fraudulent documents.[14] The applicant said that somebody at the hospital gave her the death certificates. Later she said that the police gave them the death certificates but her mother told her she could not find them. Asked why the police, rather than the hospital issued the death certificates, she said that they got them from the hospital. When the Tribunal pointed out that the death certificates were issued by the National Population Commission (NPC) she said that she obtained them from the NPC. Asked if she got them from the NPC offices, she said that her sister obtained them. She said that she went to the hospital to get the death certificates and then her sister got the certificates from the NPC. She said that she no longer had the death certificates from the hospital. The Tribunal also put to her that country information indicates that death certificates are not issued in Nigeria where there are suspicious circumstances. She said that there was no investigation and autopsy. She was unable to explain why the death certificates do not state the cause of death.
[14] Immigration and Refugee Board of Canada, Prevalence of fraudulent documents etc, NGA 106159.E, 28 August 2018, >
Sixthly, the applicant claimed that her husband [Mr A] was active in the ruling party, [participating in various events]. He was also a [Occupation 1]. Yet there are no media reports of his death. It would be expected that the death of a professional who was also a ruling party activist and of a young child, would have been reported in the media.
The Tribunal notes that the applicant had access to an agent in Nigeria who assisted her to provide numerous documents to support an application for a visitor visa to Australia. These documents included a letter from [Employer 1], payslips and accommodation bookings. The applicant has confirmed to the Tribunal that the information provided in the visitor visa application was false, and she had to provide this information in order to escape Nigeria. The Tribunal does not accept that if her claims about her husband and son were true, that she would not also have been able to access documents to support her protection visa application in Australia if it was her intention to apply for protection once in Australia. However the birth certificates, death certificates, police report and rent and furniture receipts were only provided after the refusal of the application by the Department. For this reason, and the other reasons as discussed above, the Tribunal has given these documents little weight.
Based on all this evidence considered cumulatively the Tribunal is not satisfied that the applicant’s husband and child were murdered for political reasons in Nigeria under the circumstances described by the applicant. The Tribunal has some doubts as to whether in fact she had a husband and child in Nigeria at all, but, taking the reasonable approach to assessment of credibility, is prepared to give her the benefit of doubt. She is clearly saddened and distressed about events in her life, which include the recent death of her father and a still born child in Australia. She has said that at the Tribunal hearing she was still ‘in a bad place, and feeling broken hearted’. The Tribunal accepts that she may have had difficulties in Nigeria which may be related to a husband and child. The Tribunal notes that the applicant’s medical practitioner in Australia, [Dr D] has said that she has been troubled by depression, loneliness and thoughts of self-harm, related to the ‘violent trauma experienced by her family when her husband and son were murdered’. The Tribunal notes that the cause of the trauma was reported to the doctor, and while the Tribunal does not accept that her husband and child were murdered, clearly she is suffering some trauma. Similarly a report from [Mental Health Service 1], reports that the applicant presents with symptoms associated with Traumatic Grief and PTSD. A discharge report from [Hospital 2] dated 23 April 2018 states that the applicant was admitted on 12 April 2018 with suicidal ideation after her father’s death. She also said that she felt upset as the date was near her son’s birthday, which was April in the birth certificate. In a submission to the Tribunal she referred to an incident as a child when ‘she told her mother about something that happened, and her mother beat her and told her to keep it quiet’. The notes from [Hospital 2] also refer to issues of ‘abuse as a teenager’ and self-harm to ‘cover the pain’. While there may be a number of reasons for her trauma, the Tribunal is prepared to accept that she had a husband and son in Nigeria, although it makes no findings as to whether they are alive or have passed away.
The Tribunal is not satisfied for all the reasons set out above considered cumulatively, that the applicant’s husband received threats, and later that he and her child were murdered for political reasons. Furthermore, as the Tribunal is not satisfied that the applicant’s husband and child were murdered in the circumstances described by her, the Tribunal is not satisfied that some strange men came asking for the applicant when she was living in Lagos.
Does the applicant have a well-founded fear of persecution if she returns to Nigeria in the reasonably foreseeable future?
The applicant claims to fear the authorities or ruling party if she returns to Nigeria. As the Tribunal is not satisfied that her husband and child were murdered for political reasons or came looking for the applicant, the Tribunal is also not satisfied that the alleged perpetrators or their associates would seek out the applicant for harm if she were to return to Nigeria.
The Tribunal is also not satisfied that there is a real chance of serious harm from the authorities or members of the ruling party because of her own political views. She has confirmed that she was not involved in politics in Nigeria, and has not indicated that she would be involved in any political activity if she returned.
In any event, as discussed with the applicant at hearing, the Department of Foreign Affairs and Trade assesses that individuals engaged in election protests face a moderate risk of violence, in the form of excessive use of force by police and security forces responding to the violence. Outside election cycles, individuals affiliated with political parties or processes are unlikely to face violence or discrimination on a day-to-day basis.[15]
[15] DFAT, Country Information Report Nigeria, 9 March 2018.
The Tribunal is not satisfied therefore that the applicant has a well-founded of fear of persecution for reasons of imputed political opinion if she were to return to Nigeria in the reasonably foreseeable future.
Does the applicant have a well-founded fear of persecution for reasons of her mental health?
The applicant mentioned in passing that there is no support system for persons with mental health issues in Nigeria, and if a person has a mental breakdown people are quick to attribute it to witchcraft, bad luck or possessed demons. The applicant did not claim to fear persecution for reasons of her mental health but the Tribunal has considered whether there is a real chance of serious harm for this reason, as she has mentioned negative attitudes and poor access to treatment.
The current medical evidence from the applicant’s general practitioner indicates that the applicant had been troubled by depression, loneliness and thoughts of self-harm. He said that she still had troubles of PTSD related to ‘the violent trauma experienced by her family when her husband and son were murdered. She was also grieving the loss of her father who died in “recent months”.’ He also stated that she had been making good contributions in her work in aged care and disability, belonged to a church and was a regular blood donor, and was planning to study.
A report from [Mental Health Service 1] dated 16 June 2017 stated that she presented with symptoms associated with Traumatic Grief and PTSD and had been treated for three months with supportive counselling and relaxation techniques. A discharge report from [Hospital 2] dated 23 April 2018 states that the applicant was admitted on 12 April 2018 with suicidal ideation after her father’s death. The notes refer to ‘issues of abuse as a teenager’ and self-harm to ‘cover the pain’. She ‘described that mental health issues were never openly discussed in her society and this left her to cope with the symptoms on her own’. She was given mirtazapine and discharged on 20 April 2018. The notes indicate that ‘on further reviews her mood was not depressed anymore and she denied any suicidal ideations or thoughts’.
The Tribunal accepts on the evidence before it that the applicant has suffered from depression, loneliness, thoughts of self-harm and PTSD.
The Department of Foreign Affairs and Trade, in its most recent report, notes that the World Health Organisation[16] has reported on significant gaps in provision of mental health services in Nigeria. It also noted that mental health illnesses remain highly stigmatised in Nigeria.
[16] WHO-AIMS Report on the mental health system in Nigeria.2006
In 2019 the Nigerian government has moved towards implementing new legislation to assist and progress the rights of people with mental illness:
The Senate on Thursday passed for second reading a bill to protect persons with mental health and substance abuse problems.The bill is titled "A Bill for an Act to Protect Persons with Mental Health Needs and Establishment of National Commission for Mental Health and Substance Abuse Services for Effective Management of Mental Health in Nigeria and for other Related Matters, 2019."
The passage was sequel to a presentation of the bill by the sponsor, Ahmadu Abubakar (APC, Adamawa State), at plenary.The bill which was first presented on the floor of the Senate on January 23, seeks to provide direction for a coherent response to mental health and substance abuse victims.
Presenting the report, Mr Abubakar said it would protect the rights and freedom of persons with mental health and substance abuse problems as well as ensure a better quality of life and better service delivery. It also seeks to provide a framework for legalisation to take care of issues around mental health.[17]
[17] Premium Times, Nigeria: Bill to protect persons with mental health scales second reading in Nigerian Senate, 24 January 2019, >
The UK Home Office in its 2018 report, discussed medical and health care issues in Nigeria based on a number of sources, including MedCOI which is an Asylum and Migration Integration Fund financed project to obtain medical country of origin information.[18] With respect to mental illness the report notes that there are eight neuropsychiatry hospitals throughout the country and each medical school has a psychiatry department. There are also six state owned medical hospitals:
According to the MedCOI country contact, ‘the treatment of mental illness is possible in public hospitals. There is no form of mental illness for which treatment is not available in Nigeria. Human resources are not sufficient for the country’s needs.’ The online publication Punch noted that a consultant psychiatrist at the University of Ilorin Teaching Hospital stated that ‘there are less than 300 psychiatrists to Nigeria’s estimated 180 million people.’ There is also a training of health care workers at the PHC [primary health care] level to diagnose common mental illnesses, according to the MedCOI country contact and BMC Health Services research…
Treatment facilities are mainly located in the urban and in some semi-urban areas, according to the MedCOI country contact and BMC Health Services research. A Psychiatry Jounal study noted that Nigeria has a significant intracountry disparity in the mental health personnel resources’ distribution. The northeastern region is the least resourced, with a weak mental health system that is poorly funded and has very few mental health professionals, as compared to the rest of the country…
Information obtained from MedCOI sources (based on assessments by MedCOI contacts) indicated the availability of in and outpatient treatment by psychiatrists and psychologists from public facilities; psychiatric counselling, medical assistance by psychiatric nurse, care at home by a nurse from private facilities.
[18] UK Home Office, Nigeria: Medical and Healthcare issues 28 August 2018
The report notes the unequal distribution of doctors and nurses with the south western states (including Lagos) having 20% of Nigeria’s population and having 43.9% of the country’s practitioners. Further, most of the country’s medical practitioners are located in tertiary and secondary health facilities in urban areas. The report notes also that the availability of medication[19] is much better in urban areas than in rural areas. Nigeria has a drug administration and control system and an Essential Medicines List. Medications can be purchased from public and private medicine stores although the report notes shortages of medicines are common and the current system of drug distribution is chaotic.
[19] UK Home Office, Nigeria: Medical and Healthcare issues 28 August 2018 1.4 Pharmaceutical sector
There are a number of non-profit organisations which have been established to educate the public about the nature of mental illness and to raise awareness[20] as well as to assist those with mental health conditions.[21]
[20] Nonprofits take on Nigeria’s struggles with mental health 4 September 2018 Devex A Review of Stigma and Mental Illness in Nigeria; 16 October 2014 Journal of Clinical Case Reports >
The Tribunal accepts that the level of mental health care in Nigeria is not at the same high standard as it is in Australia and that there are gaps in accessibility. However the Tribunal is satisfied that the applicant could access mental health assistance for PTSD and depression including medication as she comes from an urban area. The Tribunal finds that if the applicant returns to Nigeria now or in the reasonably foreseeable future she would return to either Benin, her home area or Lagos where she lived briefly. Benin is the capital and largest city in Edo state in southern Nigeria.[22] There are numerous hospitals and medical clinics in Benin.[23] Lagos is the capital of Lagos state, and is the largest city in Nigeria.[24] There are many hospitals in Lagos.[25] There are also NGO’s providing assistance for persons with mental health conditions. The applicant has her mother, three sisters, many stepbrothers, and aunts, uncles and other relatives in these cities. While she is not close to her mother, she is close to her sisters, who could assist her. The Tribunal is not satisfied therefore that there is a real chance of serious harm for reasons of membership of a particular social group of persons with mental health issues, or a similar group, due to lack of access.
[22] >
The Tribunal notes that a number of reports refer to stigma associated with mental illnesses.[26] A number of these reports reference serious mental illnesses such as schizophrenia being particularly associated with stigma. [27]
[26] Researchgate, 26 January 2019, A review of stigma and mental illness in Nigeria, Adeosun, II, Adegbohun, AA, Jeje, OO & Adewumi, TA 2014, ‘Experiences of discrimination by people with schizophrenia in Lagos, Nigeria’, Journal of Public Mental Health, Vol. 13, No. 4 >
Despite some stigma attached to mental illness, the Tribunal does not accept that the applicant will face a real chance of serious harm for reasons of her mental health if she returns to Nigeria. She is a well-educated woman and her evidence indicates that her mother and siblings are living in Benin and could be of some assistance. Independent sources suggests that there are a number of NGOs and health professionals working to raise awareness of mental illness, and the government has produced a Mental Health Bill which is currently before the Nigerian Senate. She lives in an urban area, where attitudes are generally more progressive.

The Tribunal is not satisfied therefore that there is a real chance that the applicant would suffer serious harm for reasons of membership of a particular social group of people with mental health issues, or a similar group, due to the stigma associated with mental illness.
While there may be some stigma associated with her mental health issues, and ostracism or discrimination from members of the community which may ensue from such stigma, the Tribunal is not satisfied that harm suffered from ostracism or discrimination would reach the level of serious harm envisaged by the legislation.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of membership of a particular social group of persons with mental health issues, or a similar group.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if the Minister is satisfied there are 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: (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition (and pursuant to real chance as referred to in the legislation) : MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the applicant’s husband and child were murdered by political opponents, for reasons set out earlier. The Tribunal has also found that the applicant does not face a real chance of serious harm from members of the ruling party or their associates, for reasons set out earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of the applicant suffering significant harm from alleged perpetrators of her husband’s and child’s murders or their associates or from members or supporters of the ruling party.
For reasons set out earlier, the Tribunal is not satisfied there is a real chance of serious harm for reasons of the applicant’s mental health condition. For the same reasons as set out above in relation to real chance of serious harm, the Tribunal is not satisfied that there is a real risk of significant harm because of the applicant’s mental health. While there may be some stigma from her mental health condition, and some ostracism or discrimination which may result from that stigma, the Tribunal is not satisfied that harm suffered from ostracism or discrimination would reach the level of significant harm envisaged by the legislation.
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 of significant harm.
Section 438 Certificate
The Tribunal had before it Departmental file no. [number] which contains the application for protection and associated documents.
The delegate has placed a non-disclosure certificate on this Department’s file pursuant to s.438(1) of the Act. The reason given for the restriction of folios 61 to 70 and 100 is because they “contain information relating to an internal working document and business affairs”. The material in these pages consists of an application and identification test check, a copy of the applicant’s passenger card and a disclosure decision checklist.
In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue. In MZAFZ v MIBP,[28] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[29]
[28] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
[29] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].
As discussed with the applicant at the Tribunal hearing, the Tribunal considers that the certificate in this case is not a valid certificate as its description of the reasons for restriction, ‘internal working document and business affairs’ does not properly identify a basis for public interest immunity. There is no suggestion that the disclosure of the documents would harm the nation or public service. The Tribunal outlined the nature of the relevant material and put it to the applicant that the material in the application, identification test check and checklists was not relevant to the review and was not information which was adverse to the applicant or that supports the application. The Tribunal considers the material does not result in a loss of opportunity to advance the applicants’ case. The material in the documents does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision by the Tribunal.[30] The passenger card was relevant to the review in that it suggested that she was an [Occupation 2] and the material was discussed with the applicant at hearing such that she could provide comments or response.
[30] Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [72].
CONCLUDING PARAGRAPHS
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 s.36(2)(a) of the Act.
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).
There is no suggestion that the applicant satisfies s.36(2) of the Act 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A: RELEVANT LAW
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6696

20 August 2019

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction