1611949 (Refugee)

Case [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

  1. 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].

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Details
AGLC
1611949 (Refugee) [2020] AATA 318
Case
[2020] AATA 318
Decision Date

CaseChat Overview and Summary

The applicant, a Nigerian national, sought a protection visa, claiming a well-founded fear of persecution based on her religion, gender, and membership in a particular social group. The dispute concerned whether the applicant met the criteria for a protection visa under Australian law. The decision was made by Jane Marquard.

The legal issues before the court were whether the applicant had a well-founded fear of persecution for reasons of her religion, membership of a particular social group (specifically, women in Nigeria, uncircumcised girls in Nigeria, and victims of domestic violence), and whether the Nigerian state could offer adequate protection. The court also considered the reasonableness of internal relocation within Nigeria and the applicant's credibility.

The court considered extensive evidence regarding the applicant's background, including her upbringing in a polygamous household, her father's alleged violence and harshness, the forced circumcision and subsequent illness and ostracisation of her sisters, and her own experiences of domestic violence, including a forced abortion. The applicant also claimed to have converted to Christianity and feared persecution from Muslim groups and her father, particularly concerning female genital mutilation (FGM) and forced marriage. The court noted inconsistencies in the applicant's evidence, such as the timing of events and her attendance at a church. The court also considered the prevalence of FGM in Nigeria, the potential for harm from non-state agents, and the limitations of state protection.

The decision under review was remitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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