1611949 (Refugee) - [2020] AATA 318

1611949 (Refugee) [2020] AATA 318 (15 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611949
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Jane Marquard
DATE:15 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first-named and third-named applicants satisfy s.36(2)(a); and
(ii)that the second-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.

Statement made on 15 January 2020 at 6:34am
CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Tabligh background – practising Christian – particular social group – women in Nigeria – uncircumcised girls in Nigeria – victim of domestic violence – female genital mutilation (FGM) – sisters forcibly circumcised – credibility assessment – lack of education – mental health condition – incorrect information in visitor visa application – well-foundedness of fear – freedom of religion – inter-marriage and conversion – history of family abuse – prevalence of FGM – harm from non-state agents – gender-based violence – inadequate state protection – reasonableness of internal relocation – single woman without employment prospects – mother of young children – availability of mental health services – right to enter and reside in a third country – member of the European Community of Western African States (ECOWAS) – admissibility of non-citizens – valid travel document – international health certificate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 2.08; Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMAC v SZRHU [2013] FCAFC 91
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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
Suntharajah v MIMA [2001] FCA 1391
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
V856/00A v MIMA (2001) 114 FCR 408
WAGH v MIMIA (2003) 131 FCR 269
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

The first-named applicant is a [age]-year-old woman from Lagos, Nigeria. She is from the Ijebu ethnic group and speaks Yoruba. The second-named applicant is her son, who was born in Australia in [year]. The third-named applicant is her daughter, who was also born in Australia, in [year].
The first-named applicant arrived in Australia [in] January 2014 on a [visitor] visa.
The first-named applicant applied for protection visas for herself and the second-named applicant under s.65 of the Migration Act 1958 (the Act) on 17 February 2014. After the application, but prior to decision, the third-named applicant was born on [date].
A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the applicants the visas on 26 July 2016.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicants meet the refugee criteria or complementary protection criteria under the Act.
In reaching a decision, the Tribunal has taken into account written and oral evidence before the Department and this Tribunal. The applicants appeared before the Tribunal on 21 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Yoruba and English languages. The applicants were represented in relation to the review by their registered migration agent, [Ms A].
Evidence before the Department
A summary of the evidence provided to the Department in the application forms and supporting documentation is as follows:
·The first-named applicant was born in Lagos in [year]. She lived in Lagos with her parents, [and number of siblings]. Her father also has other wives and children. The families all knew each other but ‘did not really interact’. Her parents, [and number of siblings] are still living in Nigeria. One of her sisters has passed away.
·Her father was a [Occupation 1], [undertaking specified tasks]. When in Lagos he stayed with her family. Her mother did not have a set job, but sold [products] at local markets. The applicant and her siblings helped her by [products] in front of [place] at a stall. From time to time the applicant would go around selling products on her head.
·At the Departmental interview she was asked how her family practised their religion when she was a child. She said that she did not wear Islamic dress but she and her sisters went to ‘programs’. The case officer asked her if she went to a ‘synagogue’ and she did not correct the case officer. She said her father was devout.
·She claimed that her father was harsh and violent and she had an unhappy childhood. He beat her mother, and physically and verbally assaulted her and her siblings. She said that it was difficult to watch him beating her mother, and her mother was afraid to leave him. Her mother wanted the children to be educated and have a better life than she did. Her father allowed them to go to school however they could not afford anything at school. She cannot read or write properly, although she did finish secondary school in Lagos in [year].
·She claimed that in her father’s culture, when a girl was old enough to be married then she should be circumcised. Her older sister, [Sibling B], was circumcised very brutally and became ill a week after. Her mother got her medication from a chemist. A week later she died, which was very upsetting for them. They thought that because of this she and her sister would be spared. However, her other older sister, [Sibling C], was also circumcised. Her mother did not know her father was doing it, and he just took her away. She was very ill and would not stop bleeding. She is ‘still like that now’ and was never able to be married or have a normal life, and is ostracised.
·At the Departmental interview she was asked why she was not circumcised as a child. She said that she did not know. She said that in her father’s tradition, female genital mutilation (FGM) was practised prior to marriage.
·After school she [did specified work] to raise money.
·When the applicant was [age] years old, she met a Christian boy from the south of Nigeria and they started dating, although her father did not know. She dated him for a year and her father found out and was very angry. Her father told her that she needed to be circumcised as he had already arranged for her to marry someone else. At the Departmental interview she said that he wanted her to marry an older man.
·She said that she was very afraid after her father found out she was dating. She then became pregnant and her father was very angry and he threw boiling water on her and kicked her in the stomach and she lost the baby. She has scars from this. She said in her Departmental interview that she was three months’ pregnant when he beat her. He did not take her to hospital as he was so angry. Her mother treated her with medicine from a chemist.
·She decided to leave Nigeria. She tried to leave and live with other people but her father found them and harassed them. She lived under a bridge for some time. Her mother tried to go to the police, but they did not want to get involved. Her mother wanted her to leave Nigeria to be safe.
·She said in her application forms that her father was harassing her boyfriend and trying to get him arrested. He paid ‘some people’, and her boyfriend was arrested. He lost his job and she lost contact with him. She found out later that her father threatened to kill her boyfriend. He later left for [Country 1]. When asked about this at the Departmental interview, she said that she was [age] when she started seeing her boyfriend in 2008. She met him in the neighbourhood as she was a hawker who stopped by his house. When asked by the Departmental delegate if her father tried to arrest her boyfriend, she said he was arrested although she was not sure of the charge or how he was released after one week. She said that this took place in August 2012.
·She said that people did not like her being in a cross religious relationship and she fears Muslim groups.
·She told the Department that her mother arranged a passport for her and she flew to [Country 1]. She lived in [Country 1 from] August 2012 [to] January 2014, when she travelled to Australia. At the Departmental interview she said that she supported herself by meeting some Nigerian people who offered her accommodation.
·Her mother organised someone to pick up her passport from [Country 1] so her mother could arrange a visa for Australia. Her boyfriend found her in [Country 1] and she became pregnant again. She was at a gathering and saw her uncle and became afraid. Then some boys came to their house and threatened her boyfriend that he should return to Nigeria or they would kill him. They also harassed him by telephone. One day after a telephone call he left and never came back.
·Her mother arranged her visa, but she is not sure how her mother paid for her travel. She said her mother sold [products]. She then boarded the aeroplane to Australia heavily pregnant at that time. She flew to Perth and a man helped her get to Sydney. When she arrived she had nowhere to go so she approached [Church 1] in [Suburb 1] when she got off the train.
·She said that she fears for her son. She has converted to Christianity and if they return, he will be targeted. At the Department interview she was asked when she became a Christian, and what type of Christian, but she did not respond. She said that she attended Bible Study and choir practice at the ‘[specified church]’. She said that she went to pray at [Church 1] in [Suburb 1] at 8 am on a Sunday. The Departmental delegate put to her that this church advertises its services at 10 am and 12 noon but not at 8 am. She did not answer.
·She also fears that her son will be kidnapped by Islamic militants as there are many reports of this.
·She said that if she returns she fears being forced to undergo FGM by her father and members of society. Her sisters underwent FGM four years before she left the country and they were older than her. She said that Nigerian authorities cannot protect her and allow FGM.
·She claimed to fear domestic violence from her father as ‘something happened to her older siblings’.
·The delegate asked her how her father did not find and harm her after 2009, and she replied that she lived under the bridge when he was home.
On her visitor visa application form, the first-named applicant stated that she was a [Occupation 2] at [Employer 1], Ogbomoso. The purpose of her visit was to attend [a conference], held in January 2014 in Perth. She was sponsored by [Employer 1].
Submissions were made by the applicant’s representative on 12 November 2014. The representative submitted that:
·     The applicant grew up in a strict Muslim family with a controlling and domineering father. Her father’s sisters were circumcised when at a marriageable age. Her older sister, [Sibling B], died after forcible FGM. Her other sister, [Sibling C], had the procedure performed on her without her mother’s knowledge and became sick.
·    In response to the delegate’s concerns about the lack of substantial evidence to support the applicant’s claims, although there is no direct evidence that shows the injuries the applicant suffered, country information indicates that domestic violence and FGM is a problem in Nigeria.
·    In relation to the mental health of the applicant, during the Departmental interview, the applicant was in a state of confusion and agitation. The trauma she had experienced and lack of support lead to concerns regarding her mental health and impacted on the interview. An article on trauma in relation to refugees was referenced in support of this claim.[1]
·    In response to the delegate’s concerns about the reason the applicant went to [Country 1] and not one of the countries in the European Community of West African States (ECOWAS), the applicant’s mother had organised her travel and it was never an option to enter one of the ECOWAS countries.
·     In response to the delegate’s concerns regarding reasons that the applicant would be subjected to FGM, since she has given birth, it is reasonable to suspect that if the applicant returned to Nigeria, she would be subjected to FGM as a form of punishment for disobeying her father. Country information was referenced to support this claim.[2]
[1] Hunter J, Steel, Z., Pearson, L., San Roque, M., Silove, D., Frommer, N., Redman, R. (2010). Tales of the Unexpected & Refugee Status Decision-Making: Managing and Understanding Psychological Issues Among Refugee Applicants, Sydney: Faculty of Law and Psychiatry Research and Teaching Unit, University of New South Wales
[2] United States Department of State, 2013 Country Reports on Human Rights Practices – Nigeria, 27 February 2014
Claims were also made in relation to the second-named applicant. The representative claimed that the first-named applicant left Nigeria as she was pregnant with the second‑named applicant and was afraid that they would both be harmed. The second‑named applicant fears harm from his grandfather and Muslims in Nigeria as they were both Christians. He also feared being kidnapped.
The third-named applicant stated that she relied on the claims of her mother.
The first-named applicant provided a copy of her passport, issued in Lagos [in] 2012. The passport expired [in] 2017.
Medical evidence
A letter dated 14 June 2016 from [Ms D], clinical psychologist at Infant, Child and Adolescent Mental Health Service, [Hospital 1], was provided to the Department. [Ms D] stated that the applicant had been a client of their services for a year and a half for severe symptoms of depression. She had thoughts of self-harm, and ‘significant feelings of despair, hopelessness and guilt. She ‘appeared sometimes to disassociate’. She had ‘faced a number of losses in her life’. The psychologist witnessed burns on her body which the applicant told the psychologist were the result of her father throwing hot water on her. She also told the psychologist that she had lost contact with her mother.
A letter from [Ms E], Consultant Clinical Mental Health Practitioner, and Social Worker dated 26 August 2019 and titled ‘psychological report’ was provided to the Tribunal. [Ms E] noted that the applicant was [age] years old, single and has two children. The applicant reported to her that the father is in [Country 1] and has no contact with her. [Ms E] said that the applicant had been consulting with her since 2017. She presented with elevated anxiety and depressed, flat mood attributed to her ‘presenting pathology with Department of Human Services”. The applicant reported disturbed sleep patterns, anxiety and uncertainty. [Ms E] said that she presented with symptoms of ‘Generalised Anxiety Depression’ and ‘Adjustment Disorder Symptoms’. She was currently attending ongoing psychological counselling related to clinically significant levels of diagnosed depression, anxiety and Adjustment Disorder Symptoms and had attended 15 sessions. A number of tests were conducted – an interview, Depression, Anxiety and Stress Scale (DASS 21), Kessler Psychological Distress Scale (K10) and the ‘Self-Esteem Test’. Her scores on the DASS 21 were severe. Her score on the K10 test was indicative of clinically significant levels of Depression, Anxiety and Adjustment Disorder. Her self-esteem test indicated diminished self-perception. A recommended treatment plan of monthly psychological counselling for 6 to 12 months was recommended.
Evidence before the Tribunal
A summary of the evidence before the Tribunal is set out below.
The Tribunal outlined the processes and law to the applicant and apologised for the cancellation of two prior hearings due to interpreter issues. The Tribunal noted that medical reports from 2019 and 2016 referred to the applicant’s depression and adjustment disorder. The applicant told the Tribunal that she felt capable of giving evidence at the hearing. She said she was still having treatment but was not on medication.
She then provided details of her background. She said that her parents are from Lagos and she was born there in [year] Her father worked as a [Occupation 1], [undertaking specified tasks]. She does not know where he is now as she has not spoken to him since she left the country. Her mother sold [products] at the markets. She does not speak to her mother as she has lost contact with her. She last spoke to her when she was in [Country 1]. Her grandparents have all passed away. She has uncles, aunts and cousins living in Lagos.
She had two sisters, [Sibling B] and [Sibling C], and one brother. [Sibling B] passed away four years before she left Lagos. [Sibling C] was very sick when she left Nigeria. She has not been in contact with her since she left Nigeria as she has been sick herself. She does not know where her brother is living or working.
She said that when she grew up her family were practising Muslims. They usually went to the mosque twice a day to pray. Their sect was ‘Tabligh’. Asked if this is Sunni or Shia, she said that they do not have those sects in Nigeria. She did not attend a religious school, but the women in the family wore hijabs. They fasted during the festival called Ileya. Asked if they prayed a certain amount of times per day, she said that it depended on ‘how often they had to do it’. She said that they did follow the Five Pillars of Islam, but she could not remember what they were except that they had to pray in the morning, – which they called ‘yalla’. She said that she never really ‘put her mind’ to religion. She did not like Islam because it was difficult to observe. Then she found the church and the ‘Christian method is not difficult’.
She was asked how she first became interested in Christianity. She said that she ‘followed her friend’ to church, when she was about 10 to 12 years old. Her friend lived in the neighbourhood. After that she went to church many times and made friends there. Her parents knew about it. At her school some children were Christian and some were Muslim.
She went to primary and secondary school in Lagos, and after that she ‘did nothing’ although she sometimes worked [specified tasks]. She lived at home with her parents.
During her childhood her father was very violent to her mother on many occasions. On occasion he injured her mother, and twice she went to hospital. Her mother did report him to the police once, but the police told her to settle the matter at home. She asked if her mother asked her own family to help, and she said that her grandparents were deceased and her mother had no brothers. She did not try and leave him. She claimed that her father was violent to her and her sisters and brother as well and would often beat them.
She said that in her culture girls were generally circumcised at birth. She does not know if girls at her primary school were circumcised. Her mother was not circumcised because her mother’s side of the family did not engage in circumcision practices. However, her paternal aunts were circumcised. She does not know why she and her sisters were not circumcised at birth.

The first she heard about the requirement for circumcision was when her sister [Sibling B] was circumcised in around 2008 when she was [age] years old. She was asked why that specific time was chosen. She said that it was because at that time ‘you are believed to be a woman’. Her parents were marrying her off and would collect a lot of money.
She found out about her sister’s circumcision after the event and does not know who performed the act. She knew that her sister was with her father but she did not know what they were planning. She found out about the circumcision when her father brought her sister home. She became ill and she passed away six months later from an infection. She said that there were no medical records or death certificate. She said that her mother did not go to the police because she had been to them once to report her father and was told it was a family issue.
Her other sister, [Sibling C], was circumcised two years later, at the age of [age], but she does not know why. She was taken from home by her father as well. Her mother was not home at the time. They did not report it to the police.
The Tribunal referred the applicant to statistics which indicate that about 40% of Yoruba women are circumcised, and that 88.7% of Yoruba report that they were subjected to FGM before the age of five. The studies suggest that in rare cases only, FGM is practised prior to a woman’s marriage, during her first pregnancy or upon her death.[3] She said she does not know the reason the sisters were not circumcised at birth and why the particular dates were chosen.
[3] European Asylum Support Office, Country Guidance: Nigeria, February 2019, >
She said that she met her Christian boyfriend as they were living in the same street, and they were together for four years. She was asked how she was able to have a relationship without her father finding out. She said that her father was not there all the time. His family, and her mother and sisters knew about the relationship and accepted it. They were planning to marry. She said her father found out when she got pregnant as her mother told him. He threw boiling water on her when she was three months’ pregnant. She was asked if she went to the doctor or the hospital. She said that she did not, and her mother took care of her at home but she lost the child. Not long after, she left for [Country 1] as her mother sent her there to take care of her. She was given money by her mother. She worked in [Country 1] doing [specified work] and her boyfriend was with her. Some boys threatened her boyfriend and told him to go back to Nigeria if he did not want to die. She did not know who they were. She thought one was Nigerian but she is not sure. She said that her boyfriend then received a call telling him to return to Nigeria, which he did, and she never saw him again. She tried to get hold of him and contact him through his family but they just told her to look for him.
Her father arranged for her boyfriend to be arrested and charged with improper sexual relations, which was not true. He was not taken to court, because she did not give evidence.
When she was in [Country 1] she did not consider seeking asylum as she did not think about it.
She said that she saw her uncle at a party in [Country 1]. He told her that her father was looking for her and he would tell her father that this was where she was.
She lived in [Country 1] for two years and did not return to Nigeria. Her mother made arrangements for her to travel to Australia while she was in [Country 1]. She was asked if she was involved with preparing the visa forms to come to Australia. She said she was not. Asked how she could afford the travel costs, she said that her mother could have asked family members for funds, or made the money through selling products. She said that a mother wants to do anything for a child, especially as she had one daughter who had already passed. She was asked why she did not keep in touch with her mother once she came to Australia if her mother had done this for her. She said that she lost contact with her. Asked if she had details for her when she first came to Australia, she said that she lost all the information she had for her.
She first attended church in Australia at [Church 1]. This was the first church she came into contact with through a person who helped her, and she attended regularly until she moved to a new church in her neighbourhood. She has attended Bible Study, helps with children’s activities and assists with cleaning the church.
She was asked what Christianity means to her. She said that Christianity ‘gives people a chance’ and ‘there is love in the religion’. She said that she loves John 3:16, the Gospel of the Lord, and that he gave his only son. She said that she celebrates Christmas (the birth of Jesus) and Easter.
She was asked if she still feared circumcision now that she is older and has had children. She said that she is still afraid that they would want to harm her, but she is afraid for her children. She was asked why she said she still has this fear, as last time her father wanted to circumcise her prior to an arranged marriage. She said that it is a family tradition that would ‘carry on’. She also fears harm if she returns to Nigeria because of her religion and the fact that her father believes that she has disgraced him. She was asked why she thought he would harm her. She said that when she lived there, she was pregnant to a Christian man, and that was when ‘the trouble started’ with him. Her father said that she disgraced him because she was pregnant, and he beat her and poured boiling water on her, and she lost her baby. She fears that he would harm her children as she has given them Christian names. She does not know how she would protect them.
She was asked if there was anything extra to say and she said that she was afraid for her daughter as she does not want FGM performed on her.
The Tribunal said that as there were a number of distractions in the Tribunal room due to the presence of the two children and the fact that the interpreter was on the telephone, they could have until 6 December 2019 to make further submissions. Post-hearing submissions included the following:
·The United Nations Convention on the Rights of the Child applies in relation to the second‑ and third-named applicants. Article 3 requires administrative decision‑makers to consider the best interests of the child when making decisions. The children were born out of wedlock and the applicant is worried that [the third-named applicant] will be forcibly circumcised if she returns, as well as suffering other forms of violence to which women and girls are subject.
·A letter from Juliana Nkrumah AM, a Board Member of National Education Toolkit on Female Genital Mutilation/Cutting. She said that she had been a program co-ordinator, spokesperson, advocate and trainer for over 25 years. She said that she supported the applicant’s claims about an imminent threat to her daughter. She said that she had undertaken extensive research and conducted conversations with many women. She said that women had to be with daughters 24 hours a day to prevent cutting.
Letter from the Church
The applicant provided a letter from [Pastor F], the pastor-in-charge of [Church 2] in Sydney, dated 4 October 2019.
The pastor confirmed that the applicant is a church member who assists children with Sunday school services every Sunday and tidies up the church when needed. The pastor said they had known her and her children for a few years, and they were of good character.
FINDINGS AND REASONS
Relevant legal principles
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 or 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. 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 technicalities or rules of evidence, although it is 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.
Nationality/receiving country
The Tribunal is satisfied on the basis of the passport and other documentation provided that the first-named applicant is a citizen of Nigeria and that Nigeria is the receiving country for the purposes of the legislation.
Section 438 Certificate
A preliminary issue for consideration concerned a certificate restricting disclosure of certain information in the Departmental file.
The Tribunal received a Departmental file which contained the application for protection and associated documents. The delegate had placed a non‑disclosure certificate on the Department’s file pursuant to s.438(1) of the Act. The reason given for the restriction of certain folios was that they “contain information relating to an internal working document and business affairs”. The certificate purported to restrict folios 108 to 121, 125, 136 to 139 and 183 to 184. The material in these pages consists of the following:
·     Emails by an officer from the Australian Border Force regarding a birth certificate, a document from [Hospital 1] containing birth details, copies of the birth certificate and emails between officers from Australian Border Force.
·     Emails between an officer at the Department and a staff member at [Hospital 2], where the applicant was admitted after giving birth to her son, an email between a Department officer and the applicant’s next of kin, discussing the applicant’s visa status and the applicant’s incoming passenger card, dated [in] January 2014.
·     A previous version of the Department’s disclosure decision checklist, and non-disclosure certificate, dated 27 July 2016.
In considering the validity of this certificate, the Tribunal has taken into account recent case law on the issue. In MZAFZ v MIBP [2016] FCA, 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’.[4] 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.
[4] MZAFZ v MIBP [2016] FCA 1081
As discussed with the first-named applicant at the hearing, the Tribunal considers that the certificate in this case is not a valid certificate as its description of the reasons for restriction, that is, that the relevant folios ‘contain information relating to an 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 described in the certificate, and put it to the applicant that there was no material in any of these documents that 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 applicants and does not undermine the prospects of a favourable decision by the Tribunal.
The reasonable approach to fact-finding
When assessing claims, the Tribunal makes 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, and 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’.[5]
[5] 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 judgments 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 Federal 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.” [6]
[6] 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 has considered carefully the overall consistency and coherency of the first‑named applicant’s evidence, as truthful witnesses often present coherent, consistent and detailed accounts of events. The Tribunal notes however that psychological research on memory of trauma[7] indicates that inconsistencies, fragmentation of memory and lapses in memory do not necessarily reflect lack of veracity in relation to recalled events.
[7] 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 is guided by these decisions and commentaries, 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,[8] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[8] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, the first-named applicant’s vulnerability into account
The Tribunal has also had particular regard to the Tribunal’s Guidelines on Vulnerable Persons[9] in light of the evidence about the first-named applicant’s mental health. A letter dated 14 June 2016 from Dina Dehauteur, clinical psychologist at Infant, Child and Adolescent Mental Health Service, [Hospital 1], confirmed that the applicant has severe symptoms of depression. A letter from [Ms E], Consultant Clinical Mental Health Practitioner, and Social Worker dated 26 August 2019 and titled ‘psychological report’ stated that the applicant presented with symptoms of generalised anxiety, depression and adjustment disorder. The Tribunal notes that although the applicant was referred to [Ms E] for psychological assessment, [Ms E] is not a qualified psychologist. However, [Ms E] had been treating the applicant since 2017 and conducted a number of reputable psychological tests on the applicant. The Tribunal has given both documents significant weight in confirming that the applicant has a number of vulnerabilities. The Tribunal took steps to ensure that the applicant was supported during the review process including giving priority to the matter, encouraging the representative to make submissions, creating an informal setting in the hearing room and allowing extra time to provide additional evidence. The Tribunal accepts also that the applicant’s mental health may have impacted on the presentation of evidence and it has made allowances for this in the assessment of her evidence.
[9] AAT, Migration and Refugee Division, Guidelines on Vulnerable Persons, available on the AAT Website, of fact in relation to the claims
Religion
The Tribunal is satisfied that the first-named applicant came from a Muslim family as claimed. She was able to provide information about Tabligh, the sect of Islam practised by her family, which is an active sect in Africa.[10] She also referred to prayers at the mosque, wearing hijabs and fasting during Ileya. Although she did not have a detailed knowledge of Islam, for example she could not name the Five Pillars of Islam although she said that her family followed these pillars, this may have been because she was not herself a strict adherent. Not all people who practise a religion have detailed religious knowledge, and she said that she did not pay particular attention to the religion as a child. The Tribunal notes that the Departmental delegate noted that when the word ‘synagogue’ was mentioned, the applicant did not correct the delegate. The Tribunal, in making these findings of fact, has taken into account the applicant’s vulnerability and the fact that she may well have not corrected the delegate due to her lack of education and sophistication. The Tribunal is also satisfied that the first-named applicant’s father was a practising Muslim. The Tribunal notes that she may not have been aware of all his practices as he did not live with them permanently, and was also visiting the homes of his other wives and travelling for work.
[10] See for example, type="1">
The Tribunal is also satisfied that the first-named applicant attended a church primary school notwithstanding the family’s Muslim faith, as her mother enrolled her in this school as it was free. As her father was travelling and had other wives, it is plausible that her mother put her in a free, local school run by the church, particularly as she has claimed that her mother wanted her daughters to be educated.
The Tribunal is satisfied that even though she was from a Muslim family, the first-named applicant took an interest in Christianity in Nigeria and is now a practising Christian. The Tribunal is satisfied that the applicant attended church with friends in her hometown, as she has given evidence that her school was comprised of both Christians and Muslims. The Tribunal is satisfied that she herself had not paid much attention to her Islam religion, and she enjoyed the church and went there many times. Country sources do indicate that in the south of Nigeria there is interaction and co-operation between Christians and Muslims. For example, a Canadian Immigration Board Report references a senior research fellow at the Institute of African Studies at the University of Nigeria who has said that Muslims may participate in Christian events in churches while, similarly, Christians may attend Muslim events in mosques.[11] The Tribunal is also satisfied for the same reasons that the first-named applicant secretly dated a Christian boy as both Christians and Muslims lived in her area. Her first point of contact in Australia was [Church 1] in [Suburb 1] and the Tribunal is satisfied that after making contact straight after her arrival, she did attend services there. Her evidence about her interest in Christianity has been consistent to the Department and Tribunal.
[11] Immigration and Refugee Board of Canada, , Nigeria: Treatment of Christians who convert to Islam; treatment of Muslims who convert to Christianity; information on state protection for mistreated religious converts, 8 November 2012, >
The Tribunal is satisfied that the applicant has maintained an interest in Christianity by attending a church in Australia, where she has taken part in Bible Study, helps clean the church and assists with children’s activities. She was able to quote her favourite verse, and she provided a letter from a pastor who confirmed that she had attended church for a few years and took part in various church activities. The Tribunal is satisfied that she has engaged in this conduct for reasons other than bolstering her refugee claim, given her descriptions about attending church in Nigeria and her explanation that she was attracted to Christianity as she enjoyed it and it is less complex to follow than Islam.
Domestic violence
The Tribunal is satisfied that the first-named applicant’s father is a violent man, and that during her childhood he often beat her mother, as well as assaulting the first-named applicant and her siblings. Her evidence about this violence has been consistent to the Department and the Tribunal, including evidence of having boiling water thrown on her and being kicked while pregnant, an incident which caused the loss of her baby and scarring on her stomach. The scarring was witnessed by her psychologist as referred to in the medical report in June 2016. The first-named applicant has given compelling evidence about how difficult it was to witness the violence on her mother, who did not try to leave her father but went to hospital twice and reported him to the police once. Further, her attempts to escape from her father, including living ‘under a bridge’ and relocating to [Country 1], are consistent with a person who is the victim of violence. Her father also threatened to kill her boyfriend, who later disappeared mysteriously from her life. While it is not definitive that her father was involved, the Tribunal accepts that at the least, her father threatened her boyfriend. The reports to the applicant’s mental health practitioners consistently detail these experiences and how they have impacted on her life. Her experience is a common one in Nigeria, where domestic violence is a significant problem.[12]
Female genital mutilation
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
The Tribunal had some significant doubts about the veracity of the evidence that the first‑named applicant’s sisters were forcibly circumcised and that one of her sisters, [Sibling B], died following the circumcision. The doubts arise from the following factors.
Firstly, in regard to the applicant’s sister, [Sibling B], the applicant told the Department that after her sister was taken away and circumcised, she came home, had an infection and died within a week. However, when the Tribunal discussed this matter with the applicant, she said that her sister was very sick when she came home and died after six months. The Tribunal put to the applicant at hearing that it would expect her to remember if her sister died within a week or six months and that this conflicting evidence about such a significant matter did cause the Tribunal to question the veracity of her claims, particularly as she had not provided corroborating evidence such as statements from her mother, medical records or a death certificate. She said that she was not thinking straight and everything was too much for her. The Tribunal acknowledges that the process of visa application and interview can be extremely stressful, as well as reliving memories of trauma. Notwithstanding this, it is still difficult to understand how the applicant could not recall if her sister died one week or six months after returning home.
Secondly, country sources indicate that most Yoruba women are primarily circumcised before the age of five. For instance, a European Asylum Status Office Report suggests that 88.7% of Yoruba report that they were subjected to FGM/C before the age of five[13] and that it is rare for circumcision to take place prior to marriage or in adulthood.[14]
[13] European Asylum Support Office, Country Guidance: Nigeria, February 2019, European Asylum Support Office, Country Guidance: Nigeria, February 2019, >
Thirdly, the first-named applicant has admitted that she has provided some information to the Department which was not true. In her visitor visa application form, she stated that she was a [Occupation 2] at [Employer 1], Ogbomoso, and that she was travelling to Australia to attend a [conference], all of which was false. This does indicate a propensity to lie to the Australian government although in itself does not indicate that the information provided in her application is untrue.
After carefully considering these factors, the Tribunal is nonetheless prepared to accept that the first-named applicant’s sisters were forcibly circumcised. In making this finding, the Tribunal has taken the reasonable approach to assessment of evidence as discussed above, and in particular accepts the proposition that unless there are good reasons to the contrary, she should be given the benefit of the doubt.[15] In making the finding that her sisters were forcibly circumcised as claimed, the Tribunal has also taken into account the fact that although FGM is declining in Nigeria, evidence suggests that the rates of FGM are still high, with one survey suggesting that the Yoruba people have one of the highest rates of FGM, stating:
Some of the ethnic groups with highest prevalence rate of FGM/C are Yoruba (52–90% in different studies).[16]
[15] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
[16] European Asylum Support Office, Country Guidance: Nigeria, February 2019, >
Further, DFAT reports that FGM is more common in the southern states and is closely tied to concepts of family honour and girls’ marriageability.[17]
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
The Tribunal has considered this information alongside the fact that the first-named applicant’s father was particularly violent, even beating his daughter when she was pregnant. Such a person, if also adhering to traditions within his own family, could well be capable of insisting on forcible circumcision of his daughters. Furthermore, the applicant’s evidence that her father’s sisters were circumcised at a marriageable age is consistent with her claims that the attempts to circumcise her and her sisters were made at a similar age.
The Tribunal, in making this finding, has taken into account the fact that the first-named applicant is not well-educated and suffers from a number of mental health conditions, which could well impact on the presentation of her evidence. Her mental health practitioner stated that she feels overwhelmed and confused. Her lack of education and mental health symptoms could have impacted on the presentation of her evidence about her sister’s death.
In regard to the untruthful evidence provided in the visitor visa application, although this does indicate a willingness to lie to the Australian authorities, the Tribunal accepts her evidence that the applicant’s agent formulated the application without her knowledge as to the details of it, as a means to get her to escape Nigeria. She is not well-educated and does not have good literacy skills. The Tribunal notes that a practice of formulating an untruthful visitor visa application is by no means unusual and the fact that the information in the application was not true does not lead to a conclusion that the applicant’s entire account should not be believed (see, for example, the comments of their Honours in Abebe v Commonwealth of Australia (1999) 197 CLR 510).
Considering the evidence in its totality, therefore, the Tribunal is satisfied that the first-named applicant’s sisters were forcibly circumcised in Nigeria. The Tribunal also accepts that one of her sisters has passed away following this circumcision.
Well-founded fear of persecution – general principles
The next issue for determination is whether the applicants have a ‘well-founded’ fear of persecution. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution if he or she has a genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.
In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason, stated that the expression ‘a real chance’:
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[18]
[18] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
The High Court’s decision in Chan establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is ‘well-founded’ and it can be reached even if the event feared is ‘unlikely to occur’ and has only a ‘10 per cent chance’ of occurring, however, the chance of it occurring must be more than ‘far-fetched’ or ‘remote’, and the evidence must indicate ‘a real ground for believing that the applicant … is at risk of persecution’; a fear ‘is not well-founded if it is merely assumed or if it is mere speculation’.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Does the first-named applicant have a well-founded fear of persecution for reasons of her religion, or conversion to Christianity?
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution from members of her community for reasons of her religion, or her conversion to Christianity.
According to the DFAT Report in 2018, the Nigerian Constitution guarantees freedom of religion as well as the freedom for individuals to change their religion, and to propagate their religion or belief through worship, teaching, practice and observance. State and local governments are prohibited from adopting a state religion or from giving preferential treatment to any religious community.[19] The Tribunal notes that Christian communities at risk from Muslim militia groups are those in the northern states, not in the south where the applicant resides. The DFAT Report ‘assesses that Christians and Muslims residing in the middle belt and southern states face an extremely low risk of violence from Boko Haram or ISIS-WA.’ [20] The applicant comes from Lagos where Christianity is a major religion of the Yoruba people and in the major cities there is a fluid mix of ethnicities and religions.[21] An academic article in 2016 suggests that Yoruba are exceptionally tolerant of religious differences and have harmonious relations between religions. The author suggests that while most Ijebu used to be Muslim, by the 1920s over a third of Yoruba Christians were Ijebu.[22] Other sources confirm that religious differences have not been the source of any major conflict among the Yoruba.[23]
[19] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[20] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[21] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[22] Peel, JDY, Christianity, Islam and Orisa-Religion: Three Traditions in comparison and interaction, University of California Press, 2016, Simpson, A & Oyètádé, A 2008, ‘Nigeria: Ethno-linguistic Competition in the Giant of Africa’ in A Simpson (ed.), Language and National Identity in Africa. Oxford: Oxford University Press, p.176 >
The attitudes to inter-marriage and conversion are also generally tolerant, although convertees can face ostracism. An Immigration and Refugee Board of Canada research response reports:

..a senior research fellow at the Center for the Study of Law and Religion at the Emory University School of Law, indicates in an article published in the Emory International Law Review journal that intermarriage "is often the occasion and motivation for religious conversion" (2011, 958). The US Department of State International Religious Freedom Report for 2011 for Nigeria indicates that "[i]n many communities, Muslims or Christians who converted to another religion reportedly faced ostracism by adherents of their former religion" (30 July 2012, 8).

Both Christianity and Islam have influence among the Yoruba (Senior Research Fellow 17 Oct. 2012; US 30 July 2012, 2). The senior research fellow at the Institute of African Studies at the University of Nigeria provided the information contained in the following paragraph.

The senior research fellow says that Yoruba people of both religions share an attachment to the "traditional value system," which partly explains the "absence [among the Yoruba people] of the kind of bitter rivalry between Christianity and Islam found in the North." He further explains that Muslims may participate in Christian events in churches while, similarly, Christians may attend Muslim events in mosques. However, the senior research fellow says that "there still exists subtle rivalry arising from interreligious conversions" and that both communities engage in efforts to convert members of the other community.[24]
[24] Immigration and Refugee Board of Canada 2012, Nigeria: Treatment of Christians who convert to Islam; treatment of Muslims who convert to Christianity; information on state protection for mistreated religious converts, 8 November 2012,

These sources, which indicate religious freedom in Nigeria and a co-existence between Christian and Muslim Yorubas, including inter-marriage and conversion, were put to the applicant for comment. She said that the information is not true and that ‘in her family that is what they do’. She said that her father’s belief was different.
The Tribunal is not satisfied that the first-named applicant would face serious harm from members of the community for reasons of her religion. The country information set out above indicates that the Yoruba people are a mix of Christians and Muslims and the south-western Nigerian states are predominantly a mix of Christian and Muslim communities. While the country information suggests there is sensitivity to conversion in the northern Hausa-Fulani states[25] the situation in the southern states is quite different. There is a greater level of tolerance of both mixed religious marriages and religious including in in Lagos. Among the Ijebu, there has been significant conversion to Christianity.
[25] Immigration and Refugee Board of Canada 2012, Nigeria: Treatment of Christians who convert to Islam; treatment of Muslims who convert to Christianity; information on state protection for mistreated religious converts, 8 November 2012, >
The Tribunal has also considered whether the applicant’s father would harm her for reasons of her religion. Given the tolerance between Muslims and Christians in her community and the fact that she indicated that her parents were aware that she attended church, the Tribunal is not satisfied that the applicant would be harmed by her father for the essential and significant reason of her religion. However, this could well be a factor in harm he may inflict on her, discussed in more detail below.
Does the first-named applicant have a well-founded fear of persecution from her father?
The Tribunal is satisfied that there is a real chance that the first-named applicant’s father may inflict serious harm in the form of violence on her as he has done in the past. This is a man who assaulted his wife and children throughout her childhood, and beat and threw boiling water on the first-named applicant when she was pregnant, which led to the miscarriage of her baby, and is evidenced by scars on her stomach. The Tribunal is satisfied that there is a real chance, one that may not be more than 50%, but one which is substantial and not remote.[26]
[26] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
The Tribunal is satisfied that it is possible that the violence the applicant’s father may inflict on the first-named applicant would include forcible circumcision, however the Tribunal is satisfied the chance of this is remote, given changes in the country and her particular circumstances.In regards to developments within Nigeria, while the statistics suggest there is wide practice of FGM, with one survey suggesting that approximately 40% of women have been subjected to FGM,[27] more recent reports suggest there is some decline in FGM. The recent Multiple Indicator Cluster Survey (MICS 2016-2017) shows that 18.4% of women aged 15–49 years now undergo FGM; a decrease from 27% in 2011.[28] The European Asylum Support Office (EASO) published a 2019 report on Nigeria which also showed that general prevalence of FGM shows a downward trend.[29] As referred to earlier in this decision, the EASO report stated that 88.7% of Yoruba report that they were subjected to FGM/C before the age of five. It is only in rare cases that FGM is practised prior to a woman’s marriage, during her first pregnancy or upon her death.[30] Another report in 2006 quoted a 2003 Nigerian survey. The report stated that ‘60.7% of Yoruba women aged between 15 and 49 years had undergone FGM with 87.4% of FGM performed before the age of one.’[31]
[27] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[28] Unicef, Take Action to eliminate female genital mutilation, 6 February 2019, European Asylum Support Office, Country Guidance: Nigeria, February 2019,
[30] Ibid
[31]National Population Commission Federal Republic of Nigeria & ORC Macro Calverton 2004, ‘Female Circumcision’, 2003 Nigeria Demographic and Health Survey, April, Chapter 13, as quoted in RRT Research Response, NGA30924 – Yoruba – FGM – Christians and Muslims – State Protection, 1 December 2006

There have also been developments in the law which may deter the first-named applicant’s father whereas it may not have done so in the past. The national Violence against Persons Prohibitions Act was passed into law in 2015, criminalising FGM and including penalties for those who inflict it. Although there have been no convictions under the Act, partly because national laws must be domesticated in particular states and this has only taken place in some states[32], this does indicate a change in official attitudes and is likely to result in deterrence for perpetrators and a capacity to request police protection. Incidentally, 13 out of 36 states have state laws expressly prohibiting FGM, including Lagos, the applicant’s hometown.[33] This change in the law has been backed up by a focus on public education campaigns by the federal government and there are several NGOs working to reduce the practice.[34] The Tribunal notes that DFAT assesses as credible advice from local sources that it remains extremely difficult for women and girls to obtain protection from FGM. There is strong community support for the practice and the attitudes of police are very traditional.[35] The UK Home Office report in 2019 has referred to numerous sources which suggest that the response of police is piecemeal and reluctant, notwithstanding that the Nigerian police force is one of the largest in the world. However, they suggest that implementation varies and is easier in urban areas, such as Lagos, which was the applicant’s home. There are non-governmental organisations which are active and can potentially assist the person to avail themselves of the protection of the state. Prominent figures such as the President’s wife, the Minister of State for Health, and some State Governors have spoken out against FGM, demonstrating the authorities’ willingness to tackle the issue. [36]
[32] Impakter, Female genital mutilation in Nigeria etc, 25 June 2019, European Asylum Support Office, Country Guidance: Nigeria, February 2019, Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[35] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[36] UK Home Office, Country Policy and Information Note Nigeria: Female Genital Mutilation, August 2019
Further, the Tribunal has carefully considered the applicant’s personal circumstances now and in the reasonably foreseeable future. She managed to avoid circumcision while living in the country. She said that her father wanted to marry her to an older man at the time. However, from 2009 until 2012 when she went to [Country 1], she evaded circumcision. She said she did this by living under a bridge. However, if her father had wanted to forcibly circumcise her, it is likely he would have made attempts to do so during this time. Now, given her age and the fact that she has more life experience and is the mother of two children, and given the new laws and attitudes mentioned above, it is far less likely he would attempt forcible circumcision, and it is more likely she could avoid it.
The Tribunal is not satisfied therefore that there is a real chance of serious harm in the form of forcible circumcision. Even though she has said that it is a family tradition which will ‘carry on’, and the reports are not accurate, the Tribunal is not satisfied that there is a real chance, in the sense of a substantial and non-remote chance (Chan v MIEA (1989) 169 CLR 379), that the applicant would be threatened with or face FGM if she returned to Nigeria in the reasonably foreseeable future.
As discussed earlier, the Tribunal is satisfied that there is a real chance of serious harm by the first-named applicant’s father in the form of other types of violence, given the history of family abuse.
Persecution feared must be for one or more of the reasons mentioned in the Convention, including membership of a particular social group. The phrase ‘particular social group’ in the Convention has generally been given a broad interpretation by the courts as reflected in the leading judgments of Applicant A v MIEA (1997) 190 CLR 225 and Applicant S v MIMA (2004) 217 CLR 387. The Tribunal is satisfied that ‘women in Nigeria’ are a particular social group on the basis of the criteria set out in these decisions. The group is identifiable by the characteristic of gender, rather than a fear of persecution, which distinguishes them from society at large. The Tribunal notes the comments of Justice Callinan in MIMA v Khawar (2002) 210 CLR 1 in which he said that it seems an unlikely proposition to regard half of the humankind of a country, classified by their sex, as a particular social group, and that to use the term ‘particular’ reinforces the notion of a specific, readily definable body or group of people forming part of a larger whole.[37] However, the Tribunal notes that Gleeson CJ found that it was open to the Tribunal to determine that ‘women in Pakistan’ were a particular social group and there have been differing judgments on this issue.[38] In this case the Tribunal is satisfied that the applicant is the member of a particular social group of ‘women in Nigeria’, given that they are distinguished from society at large by gender, as well as cultural and societal attitudes towards them.
[37] MIMA v Khawar (2002) 210 CLR 1 at [153]
[38] See SZAIX v MIMIA [2004] FMCA 104 (Raphael FM, 15 March 2004) and SDAV v MIMIA; MIMIA v SBBK [2003] FCAFC 129 (Hill, Branson and Stone JJ, 13 June 2003)
The particular social group must be the essential and significant reason for the persecution. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The Tribunal is not satisfied that the harm which the first-named applicant may experience from her father would be for reasons of her membership of the particular social group, ‘women in Nigeria’. It is difficult to ascertain what the reasons for the violence against his family members may be without knowing more about the first-named applicant’s father and his current situation. It may be a result of his own personality traits and need for power, low self-esteem, socio-economic factors or alcohol or drugs, as is often the case with domestic violence perpetrators,[39] or it may be exacerbated because the first-named applicant has deviated from tradition, by not marrying a person of his choice, by embracing the Christian religion so fully, and having children out of wedlock. The motivations for domestic violence are complex and often relate to culture and the sense of power and entitlement of the perpetrator to control female family members, a personal motivation rather than a motivation to harm because of membership of a particular social group.
[39] For example, Goldsmith, T, PsychCentral, What causes domestic violence, 8 October 2018, >
However, the Tribunal is satisfied that there is a real chance of persecution because of discriminatory withholding of state protection for the essential and significant reason of membership of the particular social group of ‘women in Nigeria’. It is well-established at law that harm from non-state agents may amount to persecution for a Convention reason if the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Nigeria is a patriarchal society where women and girls do experience gender-based violence at high levels, particularly in Muslim communities.[40] Independent sources indicate that state protection is withheld from women on a selective and discriminatory basis. The most recent United States Department of State report on human rights practices states that many people consider domestic violence socially acceptable and there are not comprehensive laws for combating violence against women. The report states that ‘victims and survivors had little recourse to justice’ and police often refused to intervene, or blamed the victim. Similarly the government ‘took no significant measures’ to combat child abuse, which remains common throughout the country.[41]
[40] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[41] United States Department of State, 2018 Country Report on Human Rights Practices: Nigeria, >
The Department of Foreign Affairs and Trade has also referred to the frequency of gender-based violence, and the lack of comprehensive laws for prosecuting offenders for acts of violence against women. The report notes that ‘women and girls frequently experience gender-based discrimination and violence in Nigeria. Nigeria remains a highly patriarchal society and cultural traditions including forced child marriage, female genital mutilation and so-called ‘widowhood practices’, which include hair-shaving and confining a woman to the marital home, continue to occur particularly in rural areas.’[42] The report also states that ‘police often turn away domestic violence victims if they report the offence, continuing to view the issue as a private matter that should remain within the boundaries of the marital home’.[43]
[42] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
[43] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
The UK Home Office also notes that domestic violence is widespread and has referred to a number of laws which protect women against violence[44] and new initiatives by the police forces to improve responses, but notes that there is extensive under-reporting due to a perception that police are reluctant to take violence against women seriously and pursue allegations.[45]
[44] UK Home Office Nigeria: Women fearing gender-based harm or violence August 2016
[45] UK Home Office, Country Police and Information Note – Nigeria: Female Genital Mutilation (FGM), February 2017, p.5-6 para [2.3.2]-[2.4.5], >
The Canadian Immigration and Refugee Board published a 2016 report which quoted a source expressing doubt that many would have the courage ‘to take their parents or grandparents to court’, explaining that ‘these are the persons who demand compliance of the practice in cultures where it is the norm’.[46]
[46] Immigration and Refugee Board of Canada, Nigeria: Prevalence of female genital mutilation (FGM), including ethnic groups in which FGM is prevalent, particularly in Lagos State and within the Edo ethnic group; consequences for refusal; availability of state protection; the ability of a family to refuse a ritual practice such as FGM (2014-September 2016), 13 September 2016, >
Another report by the Canadian Immigration and Refugee Board referenced 46 civil society organisations that indicated that police characteristically exhibit bias and discriminatory attitudes in their treatment of female victims of violence, which is informed by cultural beliefs and notions which devalue and subjugate women and often blame the victim.[47] The report also states that conviction rates are low and that courts are insensitive to family violence victims.[48]
[47] Immigration and Refugee Board of Canada, Nigeria: Domestic violence, including Lagos state; legislation, recourse, state protection and services available to victims, 10 November 2014
[48] Ibid
Notwithstanding the fact that there have been some improvements in the operations of the police towards female victims, the Tribunal is satisfied on the basis of these reports considered cumulatively, as well as the applicant’s family’s experiences, that state protection is withheld from women in Nigeria on a selective and discriminatory basis.
The Tribunal is satisfied therefore that there is a real chance of serious harm in the form of violence, because of the withholding of state protection for the essential and significant reason of membership of the particular social group of women in Nigeria.
The Tribunal is satisfied therefore that in the very specific circumstances of this case, the first-named applicant has a well-founded fear of persecution for reasons of membership of a particular social group of women in Nigeria.
Do the second- and third-named applicants have a well-founded fear of persecution from Islamic militants or from the first-named applicant’s father or family members?
By virtue of r.2.08 of the Act, the third-named applicant is taken to be part of the first‑named applicant’s application.

100. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution from Islamic militants. As put to the first-named applicant at the hearing, country sources indicate that kidnapping is a common crime in Nigeria but kidnapping for ransom takes place mainly by Boko Haram in the northern regions, with its reach into the south limited.[49]
[49] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018 and many other reports
101. The second- and third-named applicants have also expressed fear of harm from the first‑named applicant’s father. They fear violence, as they have Christian faith and names, and kidnapping. The third-named applicant also fears forcible circumcision.
102. The Tribunal is not satisfied on the evidence before it that there is a real chance of serious harm from the first-named applicant’s father in the form of kidnapping or violence. The Tribunal has accepted that the first-named applicant’s father was violent to her and that there is a real chance of serious harm for her as she has disobeyed her father and he has a history of violence towards her. However, there is not sufficient evidence to establish that the first‑named applicant’s father would also be motivated to harm his grandchildren. The Tribunal is not satisfied on the evidence that there would be a real chance, that is, a chance that is more than remote or insubstantial[50] of harm from their grandfather.
[50] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
103. However, the Tribunal is satisfied that there is a real chance of serious harm in the form of forcible circumcision for the third-named applicant. She is aged three, which would be a high risk age[51] for forcible circumcision should the father or his family members demand it.
[51] National Population Commission Federal Republic of Nigeria & ORC Macro Calverton 2004, ‘Female Circumcision’, 2003 Nigeria Demographic and Health Survey, April, Chapter 13, as quoted in RRT Research Response, NGA30924 – Yoruba – FGM – Christians and Muslims – State Protection, 1 December 2006
104. The Tribunal is not satisfied therefore that the second- and third-named applicants have a well‑founded fear of persecution from Islamic militants.
105. The Tribunal is satisfied that the third-named applicant has a well-founded fear of persecution from her grandfather or his family members for reasons of her membership of the particular social group of ‘uncircumcised girls in Nigeria’.
Relocation
106. Depending upon the circumstances of the particular case, it may be reasonable for persons to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[52] Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
[52] Randhawa v MILGEA (1994) 52 FCR 437
107. The Tribunal is not satisfied that it would be reasonable in the sense of practicable for the applicants to relocate given that the applicant is a single woman without employment prospects, has two young children aged five and three, and suffers a number of mental health issues. While other parts of the country do have mental health facilities available,[53] there are significant gaps in the availability of mental health services.[54] The first-named applicant will find it difficult to find work with two young children at the same time as adequately managing her health issues. The Tribunal is not satisfied that the applicants would be able to subsist in other parts of the country without family support.
[53] UK Home Office, Nigeria: Medical and Healthcare issue,s 28 August 2018
[54] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018
108. The Tribunal is not satisfied therefore that it would be reasonable in the sense of practicable for the applicants to relocate to another part of the country where there would be no appreciable risk of persecution.
Conclusion in relation to first- and third-named applicants
109. The Tribunal is satisfied therefore that the first- and third-named applicants have a well‑founded fear of persecution were they to return to Nigeria in the reasonably foreseeable future.
Do the applicants have the right to enter and reside in a third country?
110. Having found that the applicants meet the criteria set out in s.36(2)(a) of the Act, the Tribunal has considered whether the applicants have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia.
111. Under s.36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
112. The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91 has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. The right must be a right to both enter and reside, WAGH v MIMIA (2003) 131 FCR 269 per Hill J. The right must be existing, and not a past or lapsed right, or a potential right or expectancy Suntharajah v MIMA [2001] FCA 1391.
113. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A) (i.e. no need to be legally enforceable).

114. Nigeria is a member of the European Community of Western African States (ECOWAS). There are 15 member states including Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. In May 1979, the member states signed ‘Protocol A/P.1/5/79 RelatingTo Free Movement Of Persons, Residence And Establishment’ that formed the foundation for further steps to provide freedom of movement and residence within member states. Since the signing of this protocol, ECOWAS has gradually implemented a number of protocols over three phases that have outlined the legal requirements of member nations.
115. The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[55] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[56] A 2007 UNHCR report [57] showed in ‘Table 1 – Implementation of selected ECOWAS initiatives’ at page 5 that abolition of visa and entry requirements for 90-day stay had been implemented in all ECOWAS countries.
[55] IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.23 ACP Observatory on Migration, Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Liberia country report, 1 January 2014, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, CIS22697, p.42, UNHCR, Promoting integration through mobility: Free movement under ECOWAS, 1 December 2007, p.5‑6, A 2014 ACP Observatory on Migration/IOM report [58] stated in part that:
[58] ACP, Across Artificial Borders: An assessment of labour migration in the ECOWAS region, Research 2014, p.66, [
In relation to the first phase (Right of Entry), all the 15 Member States have abolished visa and entry requirements for those staying up to 90 days. This means that Community citizens in possession of valid travel documents and international health certificate can stay in any ECOWAS member State for up to 90 days without any prior administrative or police formality linked to their stay.

117. The Tribunal notes that the ECOWAS protocols have made considerable legal headway in establishing freedom of movement between ECOWAS member states in practice.[59] According to the most recent DFAT Report on Nigeria:
[59] Integrate Africa website, can freely enter the fourteen member states covered by the ECOWAS Treaty with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS. ..Nigerians can apply for an ECOWAS Travel Certificate from an NIS office. Applicants require less documentation to obtain the Certificate than to obtain a Nigerian passport. An applicant must provide photographs, a birth certificate or statutory declaration of age, a letter of introduction from an employer and a letter of confirmation of Nigerian citizenship from the applicant's local government chairman.
DFAT understands that movement within ECOWAS is generally free. While some countries have rules relating to residence permits, authorities rarely implement them. Porous borders, tribal links (people of the same ethnic background living in different ECOWAS countries), circular and cyclical migration, especially in the field of agriculture, and lack of knowledge of border laws allow the regular movement of Nigerians to and from other ECOWAS countries. [60]
[60] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018

118. While DFAT suggests that Nigerians can freely move into other ECOWAS countries, some sources suggest that full freedom of movement and rights to reside are limited by independent laws and restrictions, administrative harassment and extortion. Reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws[61] particularly as each State determines the admissibility of non-citizens. Commentators have suggested that until States agree to restrict determinations of admissibility to the ECOWAS recommended grounds of public order, public health and public security, the entitlements of the protocols are undermined by States’ recourse to overly broad or arbitrary grounds of inadmissibility.[62] A report commissioned by the UNHCR details inadmissibility provisions in ECOWAS countries.[63] According to the report, ‘the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would‑be migrants seemingly without need of explanation or process’. The report suggests that most countries require some form of medical or health certificate. Some require evidence of a return ticket and means of support. Some countries simply maintain an open discretion to refuse admission.[64] Further, a non-citizen’s right to entry may be limited because of a limited understanding and application by member states of the obligations under the Treaty.[65]
[61] ACP Observatory on Migration, Annex of “Across Artificial Borders: An assessment of labour migration in the ECOWAS region” – Ghana country report , 1 January 2014, pp.46 & 47, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.27, United Nations High Commissioner for Refugees, New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol, 1 December 2007, pp.9 &11 Katy Long and Jeff Crisp , Migration, mobility and solutions: an evolving perspective, Forced Migration Review, vol. 35, pp.56-57,
[63] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010
[64] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010
[65] UN High Commission for Refugees (UNHCR), UNHCR and IOM, Nationality, Migration and Statelessness in West Africa, June 2015, p.86, The Ghana News Agency, in a report appearing on the Government of Ghana Official Website, refers to a meeting between ‘Representatives of civil society, the private sector and the media from the ECOWAS member-states’ held in Accra, Ghana, that attempted ‘to fashion out practical ways to stem harassment on the highways and borders within the region’. The report commented on restrictions to ‘free movement’ between ECOWAS member states, such as ‘illegal barriers and roadblocks’, ‘the extortion of money from travellers’, ‘systematic racketeering’, and some ‘immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document’.[66] While this report was in 2008, these kinds of impediments are still commented on and recognised by ECOWAS itself. An article in 2017 refers to the ECOWAS Commission President stating that harassment comprised a major handicap to free movement of persons.[67]
[66] Ghana News Agency, Ghana Hosts ECOWAS Meeting On Border Harassment, 3 April 2008, ECOWAS website, A UNHCR report in 2015 provides the following information on the implementation of the ECOWAS Treaty and protocols in practice:
Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[68]
[68] UN High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, p.86, The UNHCR report continues:
At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds” … The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[69]
[69] Ibid, p.87
122. More recently, the report of the Special Rapporteur on Migration in Niger found that there are restrictions on entry which violated ECOWAS principles.[70]
[70] UN Human Rights Council, Report of Special Rapporteur on the human rights of migrants – Niger, 16 May 2019, Article 3 of the Protocol gives the right of all ECOWAS members to travel to any state for up to 90 days without a visa, provided that they carry a valid passport and health certificate. If however they decide to extend the stay, an authorisation beyond the 90 days is required. Member states reserve the right to refuse admission to any citizen they consider to be an inadmissible citizen under their law. The phases relating to right of residence and right of establishment have not been fully implemented. Once the 90 days is finished, according to the Protocol, applicants must apply for residence permits, a process which is dependent on national laws and arbitrarily applied by officials.
124. The courts have found that a right under s.36(3) must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise (V856/00A v MIMA (2001) 114 FCR 408). The Tribunal notes that Article 3 of the Protocol Relating to Free Movement of Persons makes it a requirement of entry to any ECOWAS State that the applicant possess a valid travel document and international health certificate.[71] The first-named applicant’s passport expired [in] 2017. She does not therefore have a valid travel document to comprise a presently existing right. Further, there may be difficulties obtaining a health certificate, taking into account her health issues.
[71] Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, ECOWAS, 29 May 1979, < Given the barriers to entry mentioned in the above sources, including the vagaries of the right to refuse admission including in relation to health, harassment at the border which may well impact on a single woman with little education travelling with two young children, and the uncertainty as to whether the applicants would be authorised to stay on after 90 days, the Tribunal is not satisfied that they have an existing right (a liberty, permission or privilege) to enter and reside in the ECOWAS countries.
126. The Tribunal is satisfied therefore that the applicants do not have a right to temporarily or permanently enter and reside in any country other than Nigeria and that s.36(3) does not apply in the applicants’ case.
Member of the same family unit
127. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a child.
128. The Tribunal is satisfied that the second-named applicant is a member of the same family unit of the first-named applicant.
CONCLUDING PARAGRAPHS
129. For the reasons given above, the Tribunal is satisfied that the first- and third-named applicants are persons in respect of whom Australia has protection obligations. Therefore, the first- and third-named applicants satisfy the criterion set out in s.36(2)(a).
130. The Tribunal is not satisfied that the second-named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second-named applicant is a child of the first-named applicant and is therefore a member of the same family unit as the first-named applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first-named applicant’s application. It follows that the second-named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
131. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first-named and third-named applicants satisfy s.36(2)(a); and
(ii)that the second-named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.
Jane Marquard

Member
Attachment A
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children.