1609906 (Refugee)

[2019] AATA 6058

1609906 (Refugee) [2019] AATA 6058 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609906

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Nora Lamont

DATE:9 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 July 2019 at 7:31am

CATCHWORDS

REFUGEE – protection visa – Nigeria – imputed political opinion – opposition to Boko Haram – communal violence – threats of killing – Ebola outbreak – sexual abuse – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 on 22 June 2016 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 11 March 2015.

3. The applicant appeared before the Tribunal on 4 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted in English.

4. The applicant was not represented in relation to her review. The applicant’s partner was a support person at her hearing but he did not give evidence.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.  

9. 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

10. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant’s migration history is as follows: [1]

    ·11 July 2014 applicant applied for offshore student visa

    ·17 July 2014 Student visa granted offshore

    ·[August] applicant arrives in Australia

    ·11 March 2015 applicant applies for a Protection visa

    [1] [File number] page 51

12. The applicants written claims as accurately summarised by the delegate are as follows: [2]

    ·The applicant is [an age] year old Edo woman who identifies herself as Christian. She was born in [named district] in Edo State.

    ·She states that she was forced to come to Australia to seek asylum via a student visa path.

    ·She fears being targeted in amidst the clash between government forces and armed groups across Nigeria. Her family has been displaced as a result of the ongoing violence in Edo.

    ·She claims that the Nigerian government is incapable of protecting her against Boko Haram and against health pandemics such as Ebola.

    ·As a young woman she fears being particularly targeted in the north and north eastern parts of Nigeria.

    ·She claims that she would not be able to relocate because the security situation affects all of Nigeria.

    ·She says she is ‘stateless’ as her [hometown] has been cut off since [2014] by Boko Haram.

    ·She is fleeing war and persecution

    [2] [File number] page 50

13. At the Department interview the applicant raised new claims relating to sexual abuse from [her Relative A]. At the Department hearing the applicant stated the following:

    ·She says that she was living in Jos Plateau since 2005 with her family as her father was transferred to work there.

    ·She stated she didn’t know where her parents were and that her father was threatened by Muslim extremists to leave his job since he was transferred to Jos.

    ·Her [family members] died along many other casualties in a bomb blast at [a location] in 2008.

    ·The main reason she left was that her [Relative A] sexually abused her

    ·She tried to take him to court but ended up in jail and then a mental institute.

    ·A friend named [Alias A] helped her

14. At the Tribunal hearing the applicant changed her claims for a third time telling the Tribunal the following:

    ·She has never been to Jos Plateau

    ·Her parents have never lived in Jos Plateau.

    ·Her [family members] did not die in a bomb blast at [the named location].

    ·She was sexually abused by her [Relative A] but didn’t mean to bring it up at the Department hearing.

    ·One of her [family members] died from cancer.

    ·Her friend [Alias A] is really named [Mr A] and he was her fiancé.

    ·[Mr A] got mixed up with some Boko Haram extremists and she had to leave for her own safety.

    ·[Mr A] is on the run and she doesn’t know where he is.

15. The applicant is [an age] year old female born in [named district], Edo State Nigeria. She is currently in a de-facto relationship with an Australian citizen and is [pregnant].

16. The applicant travelled to Australia on a valid Nigerian passport and states that she is a national of Nigeria. The delegate had no concerns about the applicant’s identity. Therefore the Tribunal has assessed the applicant’s claims against Nigeria as her country if nationality and receiving country.

17. The issues in this review are whether the applicant has a well-founded fear if being persecuted for one or more of the five reasons as set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country if Nigeria, there is a real risk she will suffer significant harm.

18. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Credibility

19. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    ‘Care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted’.

20. The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    ‘The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts’.

21. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers.

22. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

23. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

24. The applicant has changed her claims three times and has been extremely untruthful about her past in Nigeria that the Tribunal does not even know if anything she says can be believed. She is not a credible witness and her credibility was discussed with her at the Tribunal hearing.

    Tribunal Hearing

25. At the Tribunal hearing the applicant presented the Tribunal with a letter explaining her changes in claims and the concerns of the delegate in her decision. The applicant’s letter addressed the lies she had told and that she was sorry for these lies. The applicant also provided a support letter from a work colleague in Nigeria stating she is in danger of Boko Haram because of her relationship with [Mr A]. She also provided a letter from her sister also indicating that she is in harm from Boko Haram.

26. The applicant stated that she worked at a [business] and [Mr A] was [an occupation] at this firm. She first met him when she was in jail. She began working for him as a personal assistant in his office and she also had a relationship with him. The applicant said she attended meetings and dinners with [Mr A] and was therefore a party to the dealings he had going on.

27. The applicant said that she found out [Mr A] was giving sensitive information to Nigerian law enforcement about Boko Haram and some prominent members of Boko Haram were killed. To keep the applicant safe [Mr A] sent her to Australia and paid for her to go to school. It was not her intention to stay in Australia or to seek asylum, she wanted to return to Nigeria. She also said this is why she didn’t seek protection right away.

28. The applicant said she received a letter from [Mr A] telling her he could no longer pay for her school and she was on her own as he was on the run for her life. The applicant said she is a target now too as she worked for [Mr A], she is known to his clients, and has had meetings with them. They will seek revenge on her. She said Abudja is full of Muslims and Boko Haram is bigger than we know, and the security situation in Nigeria hinders her ability to get assistance.

29. The applicant was asked why she brought up her [Relative A] in the Department interview. She said she didn’t want to but she was nervous. The Tribunal asked her about her written claims and she said none of them were true. She said whilst her [Relative A] did abuse her she has forgiven him. She also said her parents know nothing about her situation and think that she is still over here studying.

30. The Tribunal asked the applicant why she couldn’t go back to Edo and she said that she is from a small village and she didn’t want to put her family in trouble. The Tribunal queried how they would find her as the population of Nigeria is 186 million people. She said they are connected and the police are corrupt.

    Findings

31. The Tribunal accepts that the applicant is [an age] year old female from Edo in Nigeria. However, given the applicant’s consistent untruthfulness during the processing of her claims the Tribunal is unable to determine what, if anything is the truth. Therefore, given the applicant’s own admission that she has lied to the Department and in her written claims and during the Department interview the Tribunal is unable to come to a conclusion as to whether or not the applicant’s last set of claims are true or not. The applicant is not credible.  

32. Given these concerns the Tribunal does not accept that the applicant is a credible witness. For the reasons set out above, the Tribunal does not accept the applicant’s claims that she is on the run because of [Mr A] and his dealings with Boko Haram. It follows, that the Tribunal does not accept that the applicant fears harm by Boko Haram for her association with [Mr A]. Based on the same credibility findings, 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 she will suffer significant harm, including that the applicant will suffer significant harm based on these claims, both individually and cumulatively considered.

33. In the context of these adverse credibility findings, both individually and cumulatively considered, the Tribunal does not accept that the applicant has any genuine personally held fear of persecution for any of the claimed nexus reasons outlined in s.5J(1)(a) or any other reason, oral or written, in returning to the applicant’s country of nationality and reference, as the Tribunal finds that the applicant’s written and oral claims for protection are fabricated and embellished solely for migration purposes.

34. Accordingly, the applicant does not have a well-founded fear of persecution if she return to Nigeria for any reason mentioned in s.5J(1)(a) as required by s. 36(2)(a).

35. Based on the same adverse credibility findings as above, both individually and cumulatively, 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, including that the applicant will suffer harm by way of being arbitrarily deprived of her life, the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment as required by s.36(2)(aa) of the Act.

    Conclusion

36. 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).

37. 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).

38. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

39. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Nora Lamont
    Member

    
    

    ATTACHMENT  -  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.

    …