1613456 (Refugee)

1613456 (Refugee) [2018] AATA 5884 (24 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613456
COUNTRY OF REFERENCE:                  Nigeria
MEMBER:Louise Nicholls
DATE:24 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 24 January 2019 at 11:27am

CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – women – mental illness – religion – Muslim convert to Christianity – political opinion – People’s Democratic Party connections – sexual violence – supernatural powers – financial assistance from father-in-law – claims of perceived homosexuality – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5J – 5LA, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
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 applicants are husband, wife and child. The applicant husband ([age] years old) and wife ([age] years old) were born in Nigeria and claim to be Nigerian citizens. The applicant child ([age] years old) was born in Australia in [year]. The applicant husband and wife have had a second child, born in [year]. She is not included in the application for review as she was born after the applicants were refused protection visas.
The applicant husband and wife arrived in Australia [in] January 2015 as the holders of [temporary] visas. They lodged applications for protection visas on 3 March 2015 and the applicant child was added to the application on [date].
The applicants provided a number of documents with their application, including:
·     Undated statutory declaration made by the applicant wife (provided on 1 March 2016).
·     Undated statutory declaration made by the applicant husband (provided on 1 March 2016).
·     Photocopies of the applicant husband and wife’s Nigerian passports.
·     Nigerian marriage certificate showing the marriage of the applicant husband and wife [in] December 2014.
·     Victorian Birth Certificate for the applicant child dated [date].
·     The applicant wife’s student card for [University 1] [specified years]; her student residence hall card for [a residence at] [University 1] [relevant department and years].
·     Photocopy of the applicant wife’s [named] degree from [University 1] dated [in] April 2014.
·     Receipt for applicant wife’s student fees.
·     Youth Service call up letter addressed to the applicant wife. Date of reporting: [in] 2014.
·     Letter from [named] Local Government, Osun State confirming the applicant wife’s residential details dated [in] July 2000.
·     Applicant husband’s student cards from [University 2].
·     Course registration form for the applicant husband from [University 2] External System in [years].
·     Letter from [Church 1], dated 4 February 2016.
·     Report from [a named] Psychologist, [Agency 1] dated 29 February 2016.
The applicants attended an interview with the delegate of the Minister for Immigration on 7 March 2016.
On 3 August 2016 the delegate refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicants met the requirements for that visa.
There are no certificates restricting disclosure of any information on the Departmental files.
This is an application for review of the refusal decision, made on 24 August 2016. The applicant provided further documents to support the application for review, including:
·     Delegate’s decision record dated 3 August 2016.
·     Email submission made by the applicant husband on 12 December 2016; handwritten submission received 12 July 2017 and further handwritten submission received on 23 January 2018.
·     Letter from a friend of the applicants – [named].
·     Letter from the Pastor of [Church 1] dated 4 February 2016.
·     Letters from [Ms A], Mental Health Social Worker and Art Therapist, [Agency 2] - 13 January 2017, 17 February 2017 and 12 July 2017.
·     Undated letter from [name], Child and Family Practitioner, [Agency 2].
·     Medical certificates concerning the applicant wife’s second pregnancy dated 23 May 2017 and mental health issues dated 14 February 2017 and 14 March 2018.
·     Letters from [Agency 3] Family Worker dated 21 December 2017 and 9 March 2018.
·     Letter from [Agency 4] dated 22 February 2018.
·     Letter from [a childcare] Centre regarding failure to pay child care fees for the applicant child in August/September 2017; letter from Centrelink regarding Special Child Care benefits.
·     Letter from [a named] Psychologist, [Agency 4] dated 23 July 2018.
·     Lost property report for the applicant husband’s passport said to have been lost between Sydney and Melbourne and reported [in] January 2014.
·     Report to Police of Burglary dated [in] December 2016.
·     The applicant wife’s drivers licence.
On 29 August 2018 the applicants’ representative provided written submissions on matters of fact and law. She also referred to country information on the situation in Nigeria. Following the hearing the applicant’s representative provided further submissions on 14 October 2018.
The applicants appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted in English.
The applicants gave evidence about their respective personal histories, their migration history, claims for protection and current circumstances.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether either or both applicants meet the refugee criterion and, if not, whether either or both are entitled to complimentary protection. The applicant child seeks a protection visa on the basis of her membership of her parents’ family unit.
The relevant law is set out in Attachment A.
Background
The applicant wife is [age] years of age. She was born in Somolu, Lagos in Nigeria. She is married with two children; [named]. The applicant claims she is of Yoruba ethnicity and is a Christian.
The applicant wife claimed both in writing and in her oral evidence that she was raised by her mother. Her father would drop by their house from time to time but she claimed she had a poor relationship with her father. Her father did not demonstrate any care for the applicant wife but her mother advised her to be polite to her father and not to hold grudges against him.
She claimed that after she left school she attended [University 1] to study [subject] from [specified years]. While she was studying she would often visit her [Relative A] in a suburb close to the university. She met the applicant husband through her [Relative A’s] neighbour and they commenced a relationship in 2008/2009. They married in Lagos [in] December 2014.
The applicant husband is [age] years of age and was born in Lagos, Nigeria. He is of Yoruba ethnicity and claims that he was born in a Muslim family but has converted to Christianity. He claims that after he left high school he did not work for about five years and then was [apprenticed]. After he met the applicant wife he commenced part time [Subject 1] studies at [University 2] but did not complete his studies.
The applicants arrived in Australia travelling on [temporary] visas [in] January 2015. They had previously applied for visas for [Country 1] and [Country 2] but those applications had been refused.
The couple have lived in Melbourne since January 2015 and have accessed a number of mental health and counselling services following their arrival. They now have two children born in Australia and the applicant husband does part time shift [and] the applicant wife is undertaking further studies in Australia.
Country of reference
The applicant wife claims she was born in Somolu, Lagos, Nigeria. She provided a number of documents including a copy of her Nigerian passport, which indicated she was born in Nigeria. Her passport was issued [in] 2014. She also provided a copy of her Nigerian marriage certificate, a local government registration document from Osun State, Nigeria and educational documents indicating she had been a student at [University 1]. She has consistently claimed that she is of Nigerian nationality and is familiar with the geography and culture of Nigeria.
The applicant husband claims he was born in Lagos, Nigeria. He provided a number of documents including a copy of his Nigerian passport, which indicated he was born in Nigeria. His passport was issued [in] 2013. He also provided a copy of his Nigerian marriage certificate, and educational documents indicating he had been an external student at [University 2]. He has consistently claimed that he is of Nigerian nationality and is familiar with the geography and culture of Nigeria.
The applicant husband and wife provided an Australian birth certificate which showed that the applicant child was born in Victoria to the applicant husband and wife on [date]. At the time of her birth neither the applicant wife nor the husband was an Australian citizen or permanent resident. Accordingly the applicant child did not acquire Australian citizenship at birth.
Article 25 (1)(c) of Chapter III: of the Constitution of the Federal Republic of Nigeria[1] provides that:
25. (1) The following persons are citizens of Nigeria by birth-namely-
(a) every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria;
Provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria.
(b) every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and
(c) every person born outside Nigeria either of whose parents is a citizen of Nigeria.
[1] >
Taking into account the documents and oral evidence provided by the applicant husband and wife as well as the provisions of the Nigerian Constitution the Tribunal is satisfied that the applicants are all citizens of Nigeria and that Nigeria is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicants’ claims?
The applicant wife and husband’s claims are set out in the applications for protection and their statutory declarations provided on 1 March 2016. The claims for protection were further discussed with the delegate on 7 March 2016.
The applicants’ representative made written submissions on the applicants claims which included a discussion of their claims as well as country information on the situation in Nigeria. The applicant husband also made a number of written submissions relating to request for priority processing as well as submissions on the applicants’ mental health issues.
The applicants gave oral evidence concerning their claims at a Tribunal hearing held on 25 September 2018.
Essentially the applicant wife and husband claim that they departed Nigeria because they feared they would be seriously harmed by the applicant wife’s father who is influential in the People’s Democratic Party (PDP) and is a member of [a named] Secret Society.
The applicant wife claimed that her father arranged for her to be sexually assaulted on four occasions and the Nigerian police did not take any action to investigate her complaints. The applicant husband claimed that he worked for his father in law for a number of years and this involved travelling overseas for short trips. He claimed that he was involved in transporting large sums of money out of the country for his father in law. He claimed that during a trip in 2013 the applicant wife’s father forced him to have homosexual sexual contact with him and he fears being ostracised, humiliated and faces discrimination due to that sexual contact. He also claims that he will face harm from the applicant wife’s father because he is aware of his father in law’s secrets involving weapons and money trafficking. The applicants also claim that the applicant wife’s father has supernatural powers.
The applicant wife also claims she faces serious and significant harm as a woman in Nigeria where the risk of sexual violence is widespread and that effective protection is not available.
In addition, the applicant husband claims that he has converted to Christianity to marry his wife after becoming interested in the religion. He claimed that he will suffer mistreatment from Muslims in his area and fears retribution from the Muslim community if he returns.
The applicants claim they fear harm anywhere in Nigeria. In any event, they cannot relocate because they do not have family or support mechanisms in other areas.
The applicants claim they cannot access third country protection in other countries in West Africa in which they have a right to enter. They claim their right to residence in these countries is limited and these countries have the same problems as Nigeria, that is, corruption, violence and poor living standards.
Assessment of claims and evidence
The Tribunal accepts that the applicants are both of Yoruba ethnicity and that they were born in Lagos as claimed. The Tribunal accepts that the applicant husband grew up in Lagos and the applicant wife grew up in Ibadan, Osun State and lived in Lagos during her attendance at university. Lagos and Ibadan are located in the south west of Nigeria and are 130 kilometres apart.
The applicant wife has claimed, and the Tribunal accepts, that she was raised by her mother and that she only saw her father a few times a year. She stated that her father lived with the family when she was a child and she remembers he separated from her mother when she was in primary school. She claims that she had a poor relationship with her father as he was harsh and demanding when they did have contact from time to time during the year.
The Tribunal accepts that the applicant wife’s family were Christians. She described her mother as having strong Christian values.
She stated, and the Tribunal accepts, that her mother sent her to a private school and then she enrolled in [University 1] and obtained a [named degree] majoring in [subject]. After she left university she undertook national service in Edo State where she undertook work [for] a few months. She stated that she did not do the usual 12 months of national service because she married and departed for Australia in January 2015.
The applicant husband stated that he attended high school but could not remember how old he was when he left high school. After high school he did not work for about five years and then he became an apprentice [and] studied [for] about four years.
The applicants claimed and the Tribunal accepts that they met in about 2008. When the applicant wife was studying at [University 1] she used to visit her [Relative A] in [town]. During these visits she was introduced to the applicant husband who was a friend of her [Relative A’s] neighbour. They used to talk and then the applicant husband asked the applicant out and they eventually formed a relationship.
Their relationship strengthened and in 2014 the couple registered their marriage, although the applicant husband stated that they regarded themselves as a committed couple long before their marriage. The applicant wife claimed that they did not invite members of their respective families to the wedding which was held in a registry office in November 2014. She claimed that she did not want to invite her mother as her mother would insist her father be invited and the applicant husband stated that his family objected to his marriage to a Christian.
The applicant husband’s relationship with his father in law
The applicants both claim that the applicant husband met his father in law in Easter 2009 when the couple were visiting the applicant wife’s mother. The applicants claimed that the applicant husband was introduced to the applicant wife’s father as her boyfriend. They also claimed that at this meeting the applicant wife’s father offered a job to the applicant husband which involved significant travel outside Nigeria.
Despite exploring the issue at some length the applicant wife could not explain her father’s occupation or how he made money. She claimed he used to be [a specific occupation] and then became an influential person within the PDP although he was not an official or a politician. He was just someone who had influence.
The applicant wife could not adequately explain her father’s occupation, the nature of his business or employment or how he earned an income. She could also not explain the nature of the employment offered to the applicant husband. When pressed on this issue the applicant wife stated that he worked as a personal assistant to her father and this involved obtaining a passport and travelling. She stated that in Nigeria you never knew when you might get a job so if you were offered a job you just took the job, particularly if the person is known to you.
The applicant husband stated that he first met his father in law in Easter 2009 when he visited the applicant wife’s mother’s home. His father in law gave the applicant husband a “compliments” card and offered him a job. The applicant husband was flattered because he thought his wife’s father liked him. He could not give any details about the nature of the work offered, only that it involved overseas travel. He claimed that the applicant wife’s father did not tell him the nature of the proposed employment except that the applicant husband needed to get a passport. The applicant husband claimed he did not really work with him until 2012. At first his father in law stated that he had to build his travel history on his passport first and so he had to travel to some neighbouring African countries. From 2009 to 2012 he travelled to some African countries such as [specified countries]. He claimed that from 2009 to 2014 his father in law supported him and provided him with substantial sums of money.
Despite claiming to have worked for his father in law from 2009 to 2014 the applicant husband could not explain to the Tribunal the nature of his employment with his father in law. Even though the Tribunal rephrased questions and gave examples, the applicant husband could not satisfactorily explain what he did when he worked for his father in law or accompanied him on his travels. When asked to describe his activities he stated the job required international travel, he applied for a passport and his father in law suggested he build his travel history on his passport by travelling to neighbouring African countries between 2009 and 2012.
He also stated that he was studying [Subject 1] part time from 2010 to 2014 however, he did not complete the [Subject 1] course at [University 2]. His student card shows that he was an external student at [University 2] in 2014-2015.
In 2012 he claimed he went overseas with his father in law for the first time and his first trip was to [Country 3]. On the overseas trips from 2012 to 2014 they took sums of money to Europe. When asked to explain, he stated many people could not keep large amounts of money in Nigeria and wanted to deposit it in banks in Europe.
When asked what the applicant husband’s role was in transporting money, he did not give a responsive answer. He stated his father in law started sexually assaulting him in 2012 and he thought his father in law just wanted him to be close to him. His father in law organised tickets and gave him some money.
The applicant husband’s 2013 passport shows that from July 2013-November 2014 he travelled to many European destinations including [specified cities], some on several occasions. He had a number of [visas]. In his application for a protection visa he listed 25 overseas visits from September 2009 to [November] 2014. Despite the evidence of extensive travel he was not able to satisfactorily explain what he did at those destinations or explain his role. His only explanation was that he and his father in law were taking money from Nigeria to different European locations.

The Tribunal found the applicant husband’s evidence to be generally evasive and incoherent. He frequently prevaricated and was not responsive to questions about his activities. He could not adequately explain why he needed to go on these trips or what his role was during the travel.
The applicant wife stated that she did not know what her husband’s work for her father involved. The Tribunal put it to her that she and her husband must have discussed the nature of his employment with her father given their long standing relationship but she claimed they had not discussed this issue. The Tribunal does not accept this evidence and considers the applicant wife has been evasive and is unwilling to discuss the nature of the applicant husband’s employment and activities with the Tribunal.
In submissions made to the Tribunal on 14 October 2018 the applicant’s representative stated that the applicant husband wanted to clarify the work he completed with his father-in-law between 2009 and 2012. He instructed that he acted as a personal assistant to his father in law, attended PDP events and meetings and watched over his father in law’s goods and belongings while he attended the meetings and would wait outside the meetings until his father-in-law was finished. He reiterated that between 2009 and 2012 his father in law required him to travel to neighbouring African countries to build his travel history so that he could obtain visas to European countries in the future.
From 2012 onwards he then accompanied his father-in-law on trips abroad. He claims his father-in-law attended meetings and he was required to wait outside. He carried his father-in-law’s goods and baggage. The representative submits that it is plausible that the applicant husband did not question his father-in-law about the particulars of the job, rather he was eager to work with him given it assisted him financially and provided him with an opportunity to travel. At the time he met his father-in-law he did not have a reason to believe his father-in-law was sinister and had no reason to question his motives. As time went on he was not comfortable in questioning him about his work.
The more detailed description of the work undertaken by the applicant husband has been provided by way of submissions following the Tribunal hearing where he was given an opportunity to describe his work in greater detail. In these circumstances the Tribunal has given the submissions pertaining to his employment with his father in law little weight.
In the written submissions he added new claims that between 2009 and 2012 he attended PDP meetings with his father in law, waited outside the meetings and watched over his goods and belongings. There is no explanation of why he could not provide the information at the hearing and the Tribunal does not accept the claim that he assisted his father in law when he attended PFP meetings or events.
Furthermore the submissions do not allay the concerns about the lack of plausible detail as the content of the submissions does not adequately explain the applicant husband’s role or his functions during his numerous overseas visits.
The Tribunal accepts that the applicant husband travelled internationally on numerous occasions between 2009 and [November] 2014. The evidence indicates he travelled to a number of African states until 2012 and then travelled extensively in Europe. The Tribunal finds that despite the suggestion his father in law was involved in arms and money trafficking the applicant husband was not willing to discuss his role in these activities.
Was the applicant husband sexually assaulted by his father in law?
In the applicant husband’s protection visa application he stated that his father in law sexually abused him every time he needed him and especially when they were travelling. He stated he would provide more details in his statement.
In the applicant husband’s statutory declaration he stated that in approximately September 2012 while the applicant and his father were travelling in [Country 3] together, his father in law invited him for a drink. At that time his father in law asked a lot of questions and started making advances towards him and suggested they have sexual relations. The applicant husband initially thought his father in law was testing him out to ensure he would refuse and be faithful to the applicant wife. The applicant declined his offer and left and did not want anything to do with him but he also did not want to upset him.
After the trip to [Country 3], he and his father in law later travelled to [Country 4]. They shared a meal together and his father in law started speaking about having a sexual relationship. He refused however his father in law would not take no for an answer and took him to a hotel room and forced him to have sex with him. He stated he felt powerless and ashamed and could not tell the applicant wife that the assault had occurred.
From this point on his father in law continued to force him to have sexual relations with him and threatened if he did not satisfy his needs he would be killed. He would demand that they meet regularly and he also told him he wanted the applicant husband to break up with the applicant wife. He claimed that his father in law was very powerful and was aligned with the PDP and a secret society. He was also influential in weapons trafficking and given his power the applicant husband felt compelled to comply with his demands.
In March 2013 the applicant wife told him she had been drugged and sexually assaulted and then in February 2014 she stated she had been kidnapped, drugged and sexually assaulted on two more occasions. The applicant husband told her about the mistreatment he had been subjected to by his father in law and he came to realise that her father was ordering these assaults. He stated in their culture when a woman is raped they are considered a shamed woman and cannot enter into relationships. He believes that his father in law was using his associates to target her as a means of ensuring she broke up with the applicant husband.
In mid-2014 he was asked by his father in law to travel with him and he refused that request and his father in law arranged for his bodyguards to beat him as a result of that refusal. A couple of months later he again refused to travel and said he wanted to study and his father in law demanded he come and see him again. He felt he had no option and had to visit and he was again bashed by his bodyguards when he went to explain his refusal to travel. In approximately August 2014 the applicant wife contacted him and claimed she been sexually assaulted again and he went with her to the police station to make a complaint.
As they did not want to continue being subjected to assaults they made arrangements to leave Nigeria and initially applied to [Country 1] and [Country 2] for visas but were unsuccessful.
At the Tribunal hearing the applicant husband claimed that in 2012 when the applicant husband and his father in law went to [Country 3] his father in law asked the applicant husband why he enjoyed having a girlfriend. He suggested that the applicant husband could have a relationship with a man like him. The applicant husband was not concerned; he thought his father in law was testing him and seeing the kind of person his daughter was intending to marry.
He stated that when he and his father in law next visited [Country 4] they stayed in a hotel near a train station. He and his father in law were drinking together in reception. They went to a hotel room where his father in law stated a man like the applicant husband would enjoy sexual contact with a man more than a girl. The applicant did not want to ignore him and his father in law started assaulting him. After this trip to [Country 4] the applicant continued to go overseas with him because he felt could not refuse to go due to his father in law’s power.
The Tribunal invited the applicant husband to give further evidence about what happened on his visits to Europe with his father in law; however, the applicant husband’s evidence was limited and superficial.
The Tribunal has considered the possibility that the applicant husband was unable to provide more detailed evidence to avoid recalling the experiences, but the applicant husband was not upset or emotional when he was asked these questions; he appeared to be quite good humoured. The Tribunal formed the view that he could not provide further detail about his experiences because he had not experienced the events he claimed took place. The Tribunal considers that the applicant husband has manufactured claims that he was sexually assaulted by his father in law to strengthen his claims for protection.
The Tribunal does not accept the applicant husband’s evidence that he was sexually assaulted by his father in law or coerced into a sexual relationship. The Tribunal found his evidence of these incidents to be superficial and limited. The Tribunal also does not accept that the applicant husband was beaten by his father in law’s bodyguards on two occasions because he refused to travel overseas with him. The evidence indicates that the applicant travelled frequently in 2014 with his last trip taking place in November 2014. This is not consistent with his claim that he refused to travel with his father in law. Further he did not provide any oral evidence relating to these claimed assaults.
However, the Tribunal has also taken into account the following matters which are not consistent with the applicants’ claims that the applicant husband was assaulted by his father in law and his associates and that the couple made a decision in 2014 that they had to leave Nigeria in 2014 to escape further mistreatment.
The applicant husband stated that his last European trip with his father in law was in mid-2014, possibly in October 2014. However, his passport shows that his last trip to Europe took place in November 2014. He departed [a European city] on [a date in] November 2014 and returned to Nigeria on that date. The applicants also married in November 2014 and were granted Australian [temporary] visas on 19 November 2014.
Despite the applicant husband’s claims that earlier in 2014 he refused to travel with his father in law and refused future sexual contact, the Tribunal notes that the applicant husband travelled frequently to Europe in 2014 until his last trip in November 2014.
Further the applicants provided information to the Department which suggested that they were assisted by the applicant wife’s father in obtaining Australian [temporary] visas in 2014.
By way of explanation, after the applicants arrived in Australia they sought financial assistance through [a support program] and they provided certain financial information and statements in relation to that application.
In the delegate’s decision record, which was provided to the Tribunal by the applicants, the delegate noted that the delegate had discussed the information provided by the applicant wife to the Department at the time the applicants were applying for financial assistance under the [support program] in 2015.
The Tribunal also asked the applicant husband and wife to comment on this information. The Tribunal advised the applicants that when the applicants arrived in Australia they applied for financial assistance under the [support program] and in responding to the refusal of that assistance the applicant wife stated in writing that the applicant husband had a bank account in Nigeria in his own name but that her father had opened that bank account and deposited money in that account so that the couple could provide financial evidence to support the Australian [temporary] visa application. After the visas were granted the money was transferred back into her father’s personal assistant’s bank account.
The Tribunal put it to the applicant wife that this information indicated that her father had supported the couple’s [temporary] visa application by depositing money into her husband’s account. She claimed the bank account was her husband’s travel account and when they applied for the visa they were told by their agent to get a statement showing they had funds in that account. She stated that it was just a way to get to Australia and her father did not know the specific purpose of the deposit of the funds. She claimed he did not know that they intended to go to Australia. Notwithstanding this claim, the Tribunal put it to her that the deposit indicated that her father was not hostile to the couple at the time he made the deposit. She stated that the money may have been deposited some months before the [temporary] visa application was made and that money circulates through that account.
The Tribunal put it to the applicant husband that the information indicated that his father in law helped the couple obtain a [temporary] visa for Australia by depositing money in the applicant husband’s bank account and this was not consistent with their claims that he wished to harm them.
The applicant husband stated that whenever he wanted to obtain a European visa his father in law would arrange for money to be deposited into the applicant husband’s account. He explained that his father in law’s personal assistant was running this account. In November 2014 he and his wife wanted to leave the country and were advised by their agent just to get a bank statement for this account and the agent would submit it to the Australian authorities as financial information to support the application for a [temporary] visa. The applicant husband had explained to the officer of the [support program] that the money in the applicant husband’s account was his father in law’s money but was held temporarily in an account in the applicant husband’s name.
The post hearing submissions state that the explanation that the bank deposit was provided for other visas and not for an Australian visa was plausible.
The Tribunal does not accept the applicant wife or husband’s explanation. The applicant wife had provided information that her father had provided the funds to the applicants to support their application for a [temporary] visa and after the evidence was provided to the Australian authorities the money was returned to her father’s assistant. This was set out in the decision record which was provided to the Tribunal.
The Tribunal considers that the applicant husband’s father in law allowed the applicants to use his funds temporarily to support their application for a [temporary] visa for Australia. This indicates that they did not fear him and that in or about November 2014 he intended to assist them in their visa application for Australia. The evidence also indicates that the applicant husband was travelling overseas for his father in law in November 2014. This evidence is not consistent with the applicants’ claims that the applicant wife’s father was hostile to them and intended to harm them in Nigeria.
The Tribunal also found the evidence of the applicant husband’s repeated applications for visas for [Country 1] and [Country 2] indicated that he had intended to migrate to a Western country well before he made claims of sexual assault in 2012 and 2013. In their applications for protection both applicants referred to previous applications made to [Country 1] and [Country 2] indicating that the applicants had applied but had been refused visas a number of times. They also gave oral evidence to this effect. As set out in the delegate’s decision record, the Tribunal noted that evidence held by the Department showing that the applicant husband had made a number of applications for visas to [Country 1] and [Country 2] with the applicant husband’s first application being in 2009, before the claimed assaults on himself and the applicant wife. He agreed he had applied many times for visas to [Country 1]. The delegate’s decision record noted that from 2009 the applicant had applied at least ten times for a visa to [Country 1].
He told the Tribunal that when he first applied he wanted to visit his cousin in [Country 1] but was not successful; he applied about two or three times. Later, when the applicants wanted to leave, the agent who helped him advised him to apply again on his own and if he was successful his fiancée could apply and would be more likely to be successful. They wanted to escape from Nigeria and that is why they kept trying many times.
The Tribunal does not accept the explanation. As put to the applicant husband, many of his applications pre-dated his claims that the applicants had been mistreated by his father in law in 2012.
Taking all of the above into account, the Tribunal does not accept that the applicant husband’s father in law sexually assaulted or coerced the applicant into any sexual contact at any time. The Tribunal considers the applicant husband’s evidence relating to the claimed assaults was unsatisfactory. Further the applicant husband’s father in law’s actions in assisting the applicant to obtain [temporary] visas by depositing a sum of money in the applicant husband’s account were not consistent with the applicants’ claims that his father in law assaulted or attacked the applicants, or caused them to be assaulted or attacked. It does not accept he intends to harm the applicants if they return to Nigeria now or in the foreseeable future.
Did the applicant wife’s father arrange for her to be assaulted on four occasions?
In the application for protection the applicant claimed that she was sexually assaulted on four occasions by a group of men between 2013 and 2014. She claimed that on the first three occasions she was on the university campus and on the other occasion she was taken just before her national service. She claimed she did not know her attackers because she was blindfolded.
The applicant claimed the first time she was assaulted, she and the applicant husband went to the police station and the police took down her complaint. She claimed they never followed up on this. She did not complain to police on the second and third occasions because she felt ashamed and did not think they would take complaints seriously. The fourth time she was assaulted she and the applicant husband went to the police station together because they wanted to have it on record but the police said they did not have her first complaint on file and told her they would have to create a new file. She claimed they did not do anything to track down those who had assaulted her.
In the applicant wife’s statutory declaration she stated that the applicant husband commenced working with her father in 2009 and worked for him until the applicants departed for Australia. While working for her father the applicant husband travelled frequently.
In her declaration she stated that in approximately March 2013 she was walking back from the bus stop after visiting a market and was walking on the University campus towards her hostel at approximately 3.30 in the afternoon when a car pulled up and the occupants grabbed her and pulled her inside. She does not remember what happened to her until she was dropped off in the same place at 9:30pm. When she woke she was dizzy and sore. She claims she knew she had been sexually assaulted given the pain she was suffering. She called the applicant husband and advised him what happened and went to the basement of her hostel rather than her dormitory as she wanted to avoid being questioned by her roommates. The applicant husband came to meet her.
That night she received a phone call from her father who asked her where she was and if she was all right. She claimed it was very odd that he called her as it was not something he did regularly. The next morning she went to [Police Station 1] however the police were not interested in assisting her and were dismissive of her report. She claimed they did not follow up on her complaint. The applicant thought she had been randomly attacked and hoped it would not happen again. She then went to see the doctor where she was given the morning after pill.

The applicant claimed in November 2013 she was sexually assaulted on a second occasion. At the time she was at university walking back from a lecture to her dormitory and was near the chapel where she was grabbed. She claimed she had no memory of what happened from then on and regained consciousness back at the same place she had originally been grabbed. When she awoke a passer-by helped her up. The applicant wife knew she had been raped. The applicant husband was not in the country at the time; he was in Europe with his father in law on business. That night her father called her and asked how she was and where she was. The applicant felt ashamed and could not understand why this was happening to her and felt it was her fault this had occurred. She obtained the morning after pill from the pharmacy but did not report the assault to police as she knew they were unwilling to assist her. She did not tell anyone else at this time what happened to her.
After being attacked twice she became very afraid and hypervigilant. She found it difficult to concentrate and became withdrawn and rarely left her dormitory. In February 2014 she was walking from the main library to [a specified] building to attend an early evening tutorial when she was taken again. She did not remember anything that happened to her and a few hours later she awoke on the ground on campus. Another lady from the hostel assisted her to go back to the dormitory. She went straight to bed as her mind was cloudy and she did not really know what was happening. The lady from the hostel came by the next morning and asked her if she had taken any drugs to help her study but the applicant wife did not want to tell her what had been happening and therefore did not deny she had taken medication to assist in studying. On the same day she had a couple of calls from her father. She stated the only time she was receiving calls was on the day she had been taken and assaulted.
She called the applicant husband and he came over and she explained what happened to her and the calls she received from her father. Upon explaining the situation to him he advised her that he was being threatened and abused by her father. At this point she knew her father had to be behind what was happening to her and she became increasingly withdrawn. She wanted to tell her mother what had happened however her mother had health issues and she did not want to cause her stress. She was also concerned her mother may blame herself for what had happened.
In approximately August 2014 she was walking to her [Relative A’s] house when she was taken again. She could not recollect what happened and assumed that she was again drugged. She regained consciousness and realised she was bleeding heavily and was on the side of the road near her [Relative A’s] place. She contacted the applicant husband and they went to the police station to make a further complaint. The police station claimed they had no record of her first complaint. She was scared to tell the police that she had been assaulted again as she did not believe they would do anything.
At the Tribunal hearing the applicant agreed that she had claimed she had been sexually assaulted four times but had no memory of the assaults. When asked how she knew she had been sexually assaulted she stated she was a girl and would know if she had sex; she felt sore. She did not do this voluntarily and she knew that it happened.
The Tribunal put it to her and she agreed that she had no memory of the incidents or any knowledge of who had abducted her. The Tribunal asked her why she thought that her father had organised the assaults. She stated he telephoned her around the time each incident took place. She stated that after the second time he called she did not think it was co-incidental. She assumed that he had organised the assaults from the fact that he called her to ask her how she was at the time of the four claimed assaults.
The Tribunal asked the applicant about the delegate’s concern that in her initial claims she talked about being blindfolded but at the interview said she was drugged. She stated that when she put in her first application she found it extremely difficult to talk about the assaults. The agent told her to just put down what she remembered. After that she did not want to talk about it again. Further, when she made her initial application she did not know her words were going to stand against her. She was not herself in 2015 and after seeing counsellors she was encouraged to talk about the incidents but found that talking about what happened made her agitated.
She did not have any memory of the assaults and she was not conscious of what had happened. She recalls being grabbed off the streets and waking up about four to five hours later. She could not offer any explanation of how she was drugged; she stated that perhaps the drugs were in a handkerchief.
The Tribunal asked the applicant about the delegate’s observation that it was odd that she would be dropped off in a public place in the same location that she had been picked up in each of the assaults. She stated she was the victim and could not explain why her attackers did this.
She stated that after the first attack, which took place in March 2013, she went to the doctor and obtained the morning after pill. She did not take a test for HIV because she did not want to know if she had been infected because that knowledge would scare her.
She stated that she reported her first assault to police to [Police Station 1]; however, they did not take her complaint. They questioned her and appeared to be sceptical. She gave them her phone number and they told her they would follow it up but they did nothing. She claimed that they took a statement but did not type it out or provide her with a copy.
She claimed that after the second and third assaults she did not go to the doctor or police and just got the morning after pill from the chemist. She told the applicant husband what had happened after the third assault and he told her what had been going on with her father.
After the fourth assault the applicant husband advised her to go to the police again as she had nothing to lose. As she was bleeding she went to [Police Station 1] but they stated they had no record of her earlier complaint so she did not take it any further. She told the Tribunal that police were corrupt in Nigeria so there was no point in making a further report.
The Tribunal asked the applicant wife to comment on the delegate’s concern that each account of the claimed assault was essentially the same. She stated she could not give any more details because it was not a joyful experience that she wanted to remember or tell people about. She explained that she was concerned no one would believe her and furthermore there is a stigma attached to sexual assault in Nigeria.
She stated that she thought she would not be believed because she was a [University 1] student and those students had a particular reputation. She claimed that the students were known for going into modelling, entertainment and prostitution and she thought that she would be seen as someone who had been responsible for the sexual assaults. Other universities such as the [specified university] had a reputation for more serious students.
She claimed that she did not tell anyone else about the sexual assaults because she thought her father was behind it. She did not tell her mother because she did not want to add to her burdens or make her feel guilty knowing that he has been responsible for causing the applicant wife harm.
The applicant wife claimed that if she returned to Nigeria she feared she would be harmed by the associates of her father who had previously attacked her on several occasions.
In post hearing submissions it was submitted that the reason the applicant wife formed the view that her father was behind her assaults was because he contacted her shortly after each attack despite him rarely contacting her. The applicant’s representative submitted that it is conceivable that the applicant wife was drugged on each occasion and can only recollect certain aspects of what occurred. She also submitted that the applicant wife’s evidence was consistent with the information she gave at the departmental interview.
The Tribunal considers there are several difficulties with the applicants’ claim that the applicant wife’s father arranged for her to be sexually assaulted. The applicants could not satisfactorily explain the applicant wife’s father’s motive for wanting to cause her harm in this way. The Tribunal does not accept that if the applicant wife had been sexually assaulted four times it would have led to their relationship breaking down, thus allowing the applicant wife’s father to continue having a sexual relationship with the applicant husband.
During the delegate’s interview the applicant wife stated she did not know why her father arranged for her to be assaulted; later she stated that the only reason her father would harm her is because he wanted to be with the applicant husband. However, she did not explain why the assaults would result in the applicant husband being with her father. At the Tribunal hearing the Tribunal asked the applicant wife why her father had harmed her and why she feared he would act to harm her if she returned to Nigeria. She stated she did not know why he wanted to harm her.
The applicants also could not satisfactorily explain the basis upon which they had both confidently formed the view that the applicant’s father had arranged for his associates to assault the applicant wife.
With respect to evidence of the father’s responsibility for the claimed sexual assaults, the Tribunal has first considered the evidence relating to the claimed assaults.
The applicant claimed that she had been abducted by unknown persons in a car on four occasions and on each occasion she had no recall of what happened to her during each abduction. She just recalled being grabbed and then waking up in the same place she had been picked up. She claimed that she must have been drugged but could not explain how she was drugged. In her application for protection she claimed she was blindfolded and made no mention of being drugged. Despite getting medical attention after two of the alleged assaults she did not seek to have any testing for drugs in her system or for the HIV virus which is prevalent in Nigeria. UNAIDS notes in its 2017 report that “Nigeria’s HIV epidemic affects all population groups and geographic areas of the country. It is the second largest epidemic globally.”[2] As a well-educated young woman, the Tribunal would expect the applicant wife would have been aware of the prevalence and the risks associated with HIV infection. She claims that she did not want to know if she had contracted HIV as it scared her but the Tribunal does not accept that after being assaulted on four occasions she would not seek testing given the impact a positive result would have on her life and that of her future husband and children and possible treatment options.
[2] UNAIDS Nigeria Overview >
Apart from some differences in where the claimed abductions took place, the applicant wife’s account of the incidents is essentially the same and the Tribunal finds the claim is far-fetched. She did not make an attempt to explain how her attackers identified her or were aware of her whereabouts at any particular time. She also does not explain how she knew she had been sexually assaulted; she stated that she was sore and knew she had been assaulted but did not provide or describe the results of any medical examination following the claimed assaults.
She claimed that she knew her father was responsible for the assaults because he called around the time of each assault and asked her how she was feeling. This evidence is not logical nor does it satisfactorily explain his motivation for making these calls. If her father wanted her to know he was responsible he would have told her he had arranged the assaults and presumably explained his reasons or made further threats. If he had been responsible for the assaults but not wanted to be associated, he would not have called and asked after her welfare at the time of the claimed assaults. The applicant wife did not explain whether she raised the incidents or her suspicions with her father at the time he called. The Tribunal also found the applicant wife’s account of the claimed assaults and her father’s enquiries to lack concrete contextual details.
The Tribunal does not accept that the applicant’s claims that she was abducted and sexually assaulted by unknown persons on four separate occasions between March 2013 and August 2014. It does not accept that she was drugged and that she had no recollection of being sexually assaulted or anything that happened to her during the claimed abductions. The Tribunal does not accept that the applicant wife’s father arranged for her to be sexually assaulted as claimed.
The applicant wife claims that sexual violence is common in Nigeria and that she has been sexually assaulted several times. The Tribunal does accept that sexual violence in Nigeria is common[3]. However, for reasons set out above the Tribunal does not accept that the applicant wife has been sexually assaulted in the manner, or for the reasons, claimed.
Does the applicant wife’s father have influence and will he use his influence to harm the applicants?
[3] UK Home Office Country Information Report Nigeria: Women fearing gender based harm or violence August 2016 >
The applicants claim in writing that they fear they will face mistreatment by the applicant wife’s father if they return to Nigeria. They claim they cannot access reasonable state protection because he is influential in the PDP and in [a named] Secret Society.
Despite earlier written claims that the applicant wife’s father was involved in a cult, the applicant wife explained that cults are groups which usually operate on university campuses and are different from fetishes and witchcraft. She stated her father was not involved in a cult but she believed he had supernatural powers. She stated that this is why he has escaped retribution for many of his illegal activities. The applicant husband also stated he believed that the applicant father had supernatural powers because he was powerful and had many connections. He was able to engage in many illegal activities and this indicated he was protected by supernatural powers.
As the Tribunal does not accept that the applicant wife’s father mistreated the applicants or intends to mistreat the applicants if they return to Nigeria, it does not accept that the applicants will need to access state protection to protect themselves from any possible future harm at his hands. In these circumstances it is not necessary to make findings as to whether the applicant wife’s father had political influence with the PDP or whether effective protection can be accessed by the applicants.
In any event, as discussed with the applicants the PDP lost the Nigerian elections in 2015 and the current ruling party is the All Progressive Congress[4].
[4] DFAT Country Information Report Nigeria 9 March 2018
At the Tribunal hearing the applicant wife stated that her father was not a member of a cult but instead had supernatural powers and they feared his power and influence for this reason. The Tribunal accepts that there are some strongly held traditional beliefs that witchcraft exists in Nigeria and that the applicants may have a genuine belief in the father’s supernatural powers. However, the Tribunal considers that there is no rational evidence that the applicant wife’s father has supernatural powers and it does not accept this claim.
Is the applicant husband a Christian convert from Islam?
In the applicant husband’s statutory declaration he claimed that in 2012 he decided to convert to Christianity. After he commenced his relationship with the applicant wife she taught him more about Christianity and he wanted to learn more about the faith. It was also important to him that he followed the same faith as his wife. He claimed he was baptised at [a named church in] Lagos, Nigeria.
He stated that he continued to attend church in Australia each Sunday. He and the applicant wife attend [Church 1], Melbourne. The applicants provided a letter from the pastor of [Church 1] confirming that the couple had been regularly attending services at the church.
The applicant husband claimed in writing that in early 2013 he was kidnapped, blindfolded and taken away. He was detained in a room and told he must convert back to Islam and was badly beaten with a belt. He claimed he still had scarring on his head. He claimed that after a couple of weeks he was dropped off on the side of the road and was released on an undertaking he would stop attending church. He claimed his father is a religious sheik in his home area and that his decision to convert was not looked upon favourably by his community.
The applicant repeated these claims at his interview with the delegate.
At the Tribunal hearing the applicant husband claimed that his family were Muslims and that he was brought up in a polygamous household where his father had [number] wives and [number] children. His father had a [business]. He described the household as crowded and not particularly happy. His mother was the first wife and felt alienated when his father married his [subsequent] wives. He stated that due to the number of children in the household he had to find a spot to sleep each night; either on the couch or on the floor.
The applicant husband described his father as a sheik. When questioned about this claim he stated that his father used to attend the mosque regularly and was a well-regarded member of that mosque. His father could speak Arabic and was familiar with the Koran. On the other hand, the applicant husband displayed very little knowledge or understanding of Islam or Islamic beliefs and practices. He was not familiar with the Koran and did not know which branch of Islam he followed and stated that Muslims in Nigeria did not have a tag like that.
He told the Tribunal that when he was young he used to attend the mosque sometimes and that he was supposed to pray five times a day. He did not understand what was going on at the mosque; he probably understood about 10% of the words. He knew that there were times of the year for fasting and he also described washing himself before he entered the mosque. He stated in the mosque you had to kneel down but if you “farted” while kneeling the people behind you would shout at you and tell you to leave the mosque and start again. It appeared to the Tribunal that he recalled this memory with some amusement. The Tribunal considers that this was a childhood memory.
The Tribunal put it to him that he did not have much knowledge of, or familiarity with, Islam and by way of explanation he stated that, unlike the applicant wife, he was not very well educated. However, the Tribunal does not consider this adequately explains his lack of knowledge as he had demonstrated that he has had the ability to enrol in part time [Subject 1] studies at a university in Lagos, he has travelled overseas on numerous occasions and was familiar with Christian principles and practices.
Notwithstanding his lack of knowledge, the Tribunal accepts that the applicant husband was born into a Muslim family and that he lived in a polygamous household when he was young which he described as tense and overcrowded. The Tribunal considered that his evidence demonstrated that as a child he had attended the mosque and could recall the practice of washing before prayers and kneeling to pray in the mosque as a young child. His recollection of being obliged to leave the mosque when he “farted” with some amusement suggested that he had childhood memories of attending the mosque. However, his evidence also demonstrated he lacked knowledge of the practices and beliefs of Islam which an adult adherent would have and the Tribunal considers he did not strongly identify as a Muslim as he grew older. The Tribunal considers that the applicant husband did not have a strong commitment to Islam as an adult and has very little knowledge of or familiarity with Islamic beliefs and practices.

The Tribunal does not consider that he continued to attend the mosque as he got older and was generally uninterested in the religious practice of Islam. If he had, the Tribunal considers he would have had a greater knowledge than displayed and one which displayed a more mature understanding of the practices.
At the Tribunal hearing the applicant told the Tribunal his father had passed away. When asked about the date of his father’s death he spent a long period of time trying to recall when his father died and how old he was at the time of his father’s death. He thought his father died in about 2005.
The Tribunal invited the applicant to comment on, or respond to, information in Melbourne hospital records held on the Department’s file which related to an attempted suicide attempt by the husband when he [details deleted] and was later taken to a hospital for assessment. Those records show he told the hospital staff that he was born in Nigeria and that his father had died when the applicant husband “was young -from war”.
With respect to his suicide attempt he told the Tribunal he was just feeling frustrated at the amount of time that the application was taking to process and wanted to make a point. He later regretted taking that action.
He stated that the information in the hospital records about his father’s death was incorrect, in fact, his father died from natural causes. However, he did not have a death certificate and he could not identify the cause of his father’s death; he also could not remember how old he was when his father died. He explained that in Nigeria it is not common to get a death certificate unless you need it for inheritance or property issues. The Tribunal accepts the applicant husband’s evidence and the post hearing submissions which indicate that the applicant husband’s father did not die from war when he was a young child and that the history taken during his hospital admission was incorrectly recorded.
The applicant claimed in his statutory declaration that his father was a religious sheik in his home area. In his interview with the delegate he claimed that his father was a sheik and member of the Muslim society. The manner in which these claims were expressed at that time seemed to suggest that his father was still alive in 2012. However, the applicant stated and the Tribunal accepts that his father died when he was an adult and well before he made his application for protection.
The Macquarie Dictionary gives the meaning of “sheikh”[5] as:
a. a chief or head; the head person of a village or tribe.
[5] Macquarie Dictionary online “sheikh” the head of a Muslim religious body.
Taking into account the oral evidence of the applicant, the Tribunal considers that the applicant husband’s father was not the head of a religious body or the chief or head person of a village or tribe in the local area. It does accept that the applicant husband may have used the term “sheik” to express his view that his father had been a well-regarded person in the local mosque, that his father spoke Arabic and that prayers were said in his honour when he died in 2005 (or earlier).
Notwithstanding his father’s reputation, the applicant husband’s evidence indicates he did not have a close relationship with his father; he grew up in an overcrowded and not particularly happy household with [number] siblings, and his father had [number] wives. There was no evidence indicating that he has maintained significant contact with remaining family members. The Tribunal accepts that his family members did not attend his wedding in 2014.
The Tribunal accepts that the applicant husband started attending a Christian Church in Nigeria in about 2012 and his decision was influenced by his relationship with the applicant wife. As he had no strong commitment or belief in Islam and did not appear to have a strong relationship with members of his family, the Tribunal considers that the decision to attend a Christian Church and become a practising Christian did not involve the applicant in a major confrontation with his family or the wider Islamic community. If the applicant husband’s father died in 2005 this was at least four years before he met the applicant wife and seven years before he first started attending a Christian church with the applicant wife.
The Tribunal accepts that the applicant took up the practice of Christianity in about 2012 but does not accept that in 2013 he was kidnapped and mistreated as claimed in his statutory declaration or at his interview. This claim was not repeated at the Tribunal hearing and in the context of his personal history it is not consistent with his employment with the applicant wife’s father, his frequent trips overseas in 2013 and 2014 or his part time studies at [University 2]. The Tribunal considers that this claim was manufactured to strengthen the applicant’s claim for a protection visa.
The Tribunal accepts that the applicant husband attends a Christian Church in Melbourne and that he currently considers himself to be a Christian.
Was the applicant husband a director of [Business 1]?
As set out in the delegate’s decision record, the applicant husband provided evidence that he was the director of [Business 1] to support his application for a [temporary] visa to Australia. The Tribunal put it to the applicant that when he applied for a [temporary] visa he claimed he was the Managing Director of [Business 1], Lagos and the officers considering his visa had made enquiries and considered this information was correct.
The Tribunal advised him that it could form the view that he either was the director of [Business 1] or had given false information in connection with his visa application.
The applicant husband stated that he had opened a bank account and registered a company in the name of [Business 1]. The company and bank account were genuine but were not used to run a functioning business. He needed to establish the company and corresponding bank account credentials to support his applications for visas.
The Tribunal accepts the applicant husband’s evidence that he did not operate a functioning company in Nigeria and that he registered an inactive company which was dormant and used only in connection with his applications for overseas travel. He claimed, and the Tribunal accepts, that it had no office or employees.
The applicants’ mental health
The applicants gave evidence that they have suffered from mental health problems following their arrival in Australia. In particular, the applicant wife has had continuing treatment for mental health problems.
The applicants provided a number of documents to support these claims.
When questioned about his understanding of the purpose of a [temporary] visa at the Tribunal hearing, the applicant husband gave evidence that once the applicants arrived in Australia on their [temporary] visas they believed they would be able to find a home, find work and establish themselves in Australia. However this has not turned out as they anticipated.
At the Tribunal hearing the Tribunal asked the applicants what their intention was when they applied for their [temporary] visas. They stated they intended to leave Nigeria and remain in Australia. The applicant husband stated that they did not have the intention to visit temporarily when they applied for their visas. They intended to remain in Australia. He gave evidence that they had tried to get visas for [Country 1] and [Country 2] but had been unsuccessful. It appeared from their evidence the applicants did not have an appreciation of the nature of different visa classes or the requirements to meet those criteria. They believed once they got their initial visas they were entitled to remain in Australia indefinitely. The applicant husband explained that this would be the situation in Nigeria and both he and the applicant wife were frustrated by the length of time it took to process the applications and grant them permanent residence. In much of their correspondence with the Department and the Tribunal, and in their oral evidence it is clear that the applicants have an expectation that once they obtained their visas for Australia they were entitled to permanent residence visas and the frustration and uncertainty surrounding the application process has caused them considerable distress.
At the Tribunal hearing the applicants gave evidence that they wanted to get on with their lives in Australia. The applicant husband stated it is difficult to get a job because he is not a permanent resident and the applicant wife is studying at [an Australian university] and is disappointed that she cannot get the Centrelink assistance she needs to pay for child care fees. As a result she had to rely on the applicant husband for assistance with child care and as he is [doing] shift work he is not always available to assist her.
Prior to the applicants’ attendance at an interview with the delegate in March 2016, the applicant wife provided a copy of a report prepared by a psychologist at [Agency 1] dated 29 February 2016. The author noted that she had been the applicant wife’s psychologist since November 2015 (three months). The applicant wife was referred by [another agency] to assess her suitability for treatment. The author noted that as the applicant was pregnant and expecting her first child, she had not pressed her for details of any trauma suffered in Nigeria. After the birth of her [child], the regular sessions were designed to reduce her anxiety about her upcoming interview in connection with her application for protection. The psychologist noted that the applicant wife had discussed her claim that she had been sexually assaulted four times and while she was able to describe what led up to the assaults and the aftermath she was unable to remember the assaults themselves.
The applicant wife told the psychologist that she was highly anxious about the prospect of returning to Nigeria and feared retribution from her father. The psychologist discussed the applicant wife’s suicide attempt in [2015]. By way of explanation, [at that time] police had been advised by an unidentified caller that the applicant wife was [behaviour deleted]. When police arrived they transported her to hospital where she was assessed and treated before her discharge. The applicant wife claimed she had been triggered by a series of vivid nightmares about her and her family returning to Nigeria. The psychologist also noted that she was awaiting the birth of her child and living in a shared house at the time. The applicant wife told the psychologist she was regretful about the suicide attempt and no longer felt suicidal.
The psychologist noted the applicant wife gave birth on [date] and has been prescribed an anti-depressant. The psychologist noted that the applicant wife had bonded well with her [child].
She noted that the applicant wife had seen a counsellor at [an agency] for fortnightly sessions for three months and had a few sessions at [another agency] but ceased this service after the service reported they could not effectively work with her until her visa situation was resolved.
The applicant’s psychologist noted that the applicant had anxiety symptoms, recurrent nightmares and interpersonal mistrust. She concluded she requires continued counselling but on a positive note found she had adjusted well to the birth of her child and motherhood challenges.
Following the refusal of the applicants’ protection visa applications, the applicants sought review at the Tribunal on 24 August 2016. The applicant husband wrote to the Tribunal on 12 December 2016 and expressed his concern at his wife’s mental state. He set out his concerns about her response to the refusal of the protection visas and his concerns about her moods, her depression and fears. In response the Tribunal provided the applicant husband with an extensive list of support organisations. On 11 July 2017 the applicant husband contacted the Tribunal and advised he was struggling to find a job and advised his wife was pregnant again and he was concerned about their financial situation. He stated his wife had a previous suicide attempt in 2015 and following that attempt had received counselling.
On 12 July 2017 the applicant husband wrote to the Tribunal reiterating his concerns for his family and expressing his current sadness. He stated that the uncertainty of their situation was making it difficult for the applicants. He stated that counselling has helped his wife but many of her counsellors have opted out for personal reasons and it has not been convenient or comfortable for her to speak to a new person. He stated that the delegate did not respect them and did not believe their claims. He does not want a repeat of his wife’s attempted suicide which took place in 2015. The uncertainty in their situation has affected many things; they have not been able to change their house, send their [child] to childcare or for him to get another job. The applicant husband also stated he would like to join the Australian Army and his situation has been a stumbling block.
On 11 January 2018 the applicant husband wrote and asked if their case could be prioritised as he could not find work, the applicant wife could not study and the impact of the delay was causing them stress. The applicant husband provided a copy of a demand for payment from a child care centre to illustrate the family’s financial stress.
In January 2018 the applicant husband wrote to the Tribunal expressing his concern about his family as things have been difficult and this was having an impact on his wife and children. He explained that his wife is currently studying a [course] at [an Australian university] and would be returning to her studies in February 2018, but the issue for them is childcare for their two young children. The applicant husband does not have a stable job and does not know when he would be called to do a shift. When the applicant wife started her studies in July 2017 she spoke with someone at Centrelink and asked if they could help with their [child’s] childcare and they were told her there could be some help available. After submitting all the necessary documents they were told to take their [child] to the childcare centre but after going for a couple of weeks they got a letter saying that the special childcare benefit was not approved because of their residential status in Australia. The childcare centre gave them an outstanding bill of $1,200 which it had referred to a lawyer.
The applicant wife gave birth to her second child on [date] and the family do not know what to do because they do not have family support in Australia. Each time they want to move forward the issue of not having permanent residence keeps holding them back. Last month [an agency] told them that family support would stop because the applicant wife is studying. The applicant husband has applied for many jobs but has been told because he does not have residence he is not eligible; the DHHs, the Australian Army and a lot more. He claimed he even tried to borrow money to buy a car so he could become an Uber driver but when the finance company realised he was on a bridging visa they refused to provide him with finance. He stated that he and his wife are having difficulty accepting this situation and he is afraid it will begin to affect the children. He has been able to get a little bit of work but there is no help from any other source. He stated that the applicant wife was trying to recover with the help of counsellors but she still has fear and uncertainty about the future.
The applicants provided a series of letters from a mental health worker and art therapist at [Agency 2], [Ms A]. These letters were written to support the provision of increased support services to the family. [Ms A] noted that her service had been providing the family with an intensive service to promote mental health and well-being. The applicant wife was referred to the program due to depression, PTSD and ongoing stress due to the uncertainty of their situation in Australia. [Ms A] sets out the problems the applicants have including issues of isolation, uncertainty and fear of return to Nigeria. [Ms A] also concluded that the applicant husband was suffering mental health issues. She recommended an increase in support to help them with education, stable work, community connections, securing safe and stable housing and finances. The family expressed a preference for a male worker. In her letter of 12 July 2017 [Ms A] notes that she has been involved with the family since October 2016 and will soon be closing her contact with them. She stated in her work with them the main priority has been their mental health but she had recently supported the family in their meeting with their lawyer to discuss submissions relating to the refusal of their visas.
The applicant provided two letters from [Agency 3] in which the author advises that [Agency 3] was offering the family parenting support. The author stated she had no current concerns regarding the applicant wife’s parenting ability and level of insight into her children’s needs however, she is concerned that in the past the applicant wife’s mental health has been unstable at times and this raises concerns as to her parenting capacity. She stated that the triggers regarding her mental health related to the uncertainty about the future in Australia.
She stated that the applicant wife has been waiting patiently and eagerly for her permanent visa to be approved so that she and her family could access relevant services that will assist them and support their well-being and offer the best level of care for their children. The applicant wife is socially isolated with no family support and has no access to Centrelink benefits and cannot afford childcare for her children. [Agency 4] are currently involved with the applicant wife and provide therapeutic support to ensure her mental health remains stable. The author is concerned that the applicant wife’s mental health and well-being remains stable and the factors which influence this include the balance between her studies, parenting, settlement and migration issues and financial stressors. She hopes that the support letter will support the family’s visa application.
The applicants also provided letters from [Agency 4] which confirmed that they were providing counselling sessions for the applicant wife. The applicants also provided a letter from the applicant wife’s general practitioner who advised that she was being treated for depression, post-traumatic stress disorder and anxiety related to the uncertainty of her situation in Australia. They also provided a letter from [Agency 2] stating that the family has been under significant pressure is due to the time they had been waiting for a decision. They requested that the Tribunal make a favourable decision as soon as possible.
The applicant wife told the Tribunal she currently takes anti-depressant medication. She stated that [Agency 2] used to come to the home but the usual worker went on maternity leave and her replacement resigned. She stated she has attended counselling but found it made her agitated and depressed and does not think it has really helped her. She stated she does not get enough sleep at the moment.
The Tribunal found the applicant wife to be a lucid and competent witness but she became quite sad and distressed when she talked about her own mother in Nigeria and their loss of personal contact. The Tribunal also found the applicant husband to be a competent and good humoured witness. The Tribunal gave the applicants opportunities to take breaks if they or their children needed them.
The Tribunal has considered the material provided by the applicants in relation to their mental health, general well-being and their requests for priority processing.
In the documents provided by the applicants the issue which appears to be causing the most stress for the applicants is the uncertainty regarding their migration situation. It is entirely understandable that the applicants would be stressed and anxious about the outcome of their application for review. Further, if the applicant wife has underlying psychological problems she may lack the resilience to deal with the delay without causing her increased stress and anxiety.

In DFAT’s latest report it notes that the World Health Organisation[20] had previously reported significant gaps in mental health services in Nigeria. It also noted that mental health issues remain highly stigmatised in Nigeria.
[20] WHO-AIMS Report on the mental health system in Nigeria.2006
Recently a number of non-profit organisations have been established to educate the public about the nature of mental illness and to raise awareness.[21]The Nigerian Association of Psychiatrists is currently working with other professional associations and NGOs to review the Mental Health Bill being considered by the Nigerian Senate.
[21] Nonprofits take on Nigeria’s struggles with mental health 4 September 2018 Devex A Review of Stigma and Mental Illness in Nigeria; 16 October 2014 Journal of Clinical Case Reports >
The Tribunal finds that if the applicants return to Nigeria now or in the foreseeable future they will return to either Lagos or to Ibadan in Osun State. Both those areas are relatively well serviced with doctors and nurses and the applicant wife’s current prescription medicine is available in Nigeria. The Tribunal accepts that the level of mental health care in Nigeria is not equal to that in Australia and that there are gaps in accessibility. Further the Tribunal accepts that mental illness is stigmatised in Nigeria. However, current information suggests that there are a number of NGOs and health professionals working to raise awareness of mental illness and the government has produced a Mental Health Bill which is currently before the Nigerian Senate.
Despite some stigma attached to mental illness, the Tribunal does not accept that the applicant wife will face a real chance of serious harm for reasons of her mental health conditions if she returns to Nigeria. She is a well-educated woman and her evidence indicates that her mother and siblings also have high levels of education. It finds if she returns she will live in an urban area in Lagos, Ibadan or one of the majority Yoruba south western states. She will be able to access medical and pharmaceutical assistance if she returns to Nigeria.
The applicant wife’s representative also submits that the applicant will face a real chance of serious harm for reasons of being a member of a particular social group, that is, a woman in Nigeria.
The current DFAT 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.”
The UK Home Office report on gender based harm or violence in Nigeria[22] notes:
2.3.1 Women are protected from discrimination under the constitution but customary and religious laws, including Sharia law in the 12 northern states, restrict women’s rights in practice. The Government is striving to improve women’s empowerment and eliminate discriminatory practices that are harmful to women. While progress has been made towards parity in primary school education, there remain significant gaps in education, political and labour force participation. Discriminatory laws and practices, violence against women and gender stereotypes continue to hinder greater progress towards gender equality. Unmarried women in particular are subject to many forms of discrimination.
2.3.2 There are no laws which prevent women from particular fields of employment or owning property. There are also a number of women who have been elected to the House of Representatives and the National Assembly.
[22] UK Home Office Nigeria: Women fearing gender-based harm or violence August 2016
The report concludes that while women do experience discrimination it is unlikely to meet the threshold required to constitute persecution or serious harm.
The report also notes that domestic violence and rape are widespread, but that there are a number of laws to protect women against violence. In practice there is extensive under-reporting due to a perception that police are reluctant to take violence against women seriously and pursue allegations. However, the report notes that:
2.4.3 The police force is, however, working with other agencies to improve its response and attitude to gender-based violence, including establishing sexual assault referral centres and reconstituting the Gender Unit. There are also many women’s advocacy groups some offering practical help and shelter to assist women
Although the Tribunal accepts that women form a particular social group, it must be satisfied that the applicant wife will face a real chance of persecution for reasons of being a member of that group. The applicant wife’s particular circumstances are relevant. The applicant is married to the applicant husband with two young children. The applicant husband has demonstrated that he is a highly caring and supportive partner who has advocated on the applicant wife’s behalf with various agencies. He also cares for the children when the applicant wife is attending university. There is no evidence that the applicant wife faces any risk of domestic violence at his hands.
The applicant wife is well educated, has attended a private school in Ibadan and has not been exposed to the risks of forced marriage or female genital mutilation. While rape is widespread, the Tribunal does not accept that the applicant wife is at risk of targeted sexual assault or rape arranged by her father, his associates or for any other reason. While the Tribunal accepts that there is a general perception that the police will not provide effective protection to women faced with sexual violence, the country information indicates that the Nigerian authorities in general are willing and able to provide protection from non state agents.
The Tribunal does not accept if the applicant wife returns to Nigeria now or in the foreseeable future she faces a real chance of serious harm for reasons of her membership of a particular group, that is, women in Nigeria.
During the hearing the Tribunal discussed with the applicants whether they could access third country protection in one of the Economic Community of West African States (ECOWAS) Member States if they did not wish to return to Nigeria. The applicant wife stated that she had never visited any of the ECOWAS countries and she did not want to live in an African country as they had the same issues which she faced in Nigeria. She wanted her children to grow up in a Western country. The applicant husband stated that the ECOWAS states had high levels of corruption and violence.
The Tribunal also notes the submissions made by the applicants’ representative as to whether the applicants could enter and reside in any of the Member States of ECOWAS. The representative submitted that despite the treaty arrangements between the ECOWAS states, the practical reality was that Member States imposed numerous limitations on an individual’s right to reside in those states.
The Tribunal has not made any findings as to whether the applicants have a right to enter and reside in the ECOWAS Member States because it has found that the applicants do not face a real chance of serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion in Nigeria.
The applicant wife and husband have both expressed a strong desire to remain in Australia. When questioned about her motivation for coming to Australia the applicant wife stated they could not get visas for [Country 1] or [Country 2] and their agent suggested Australia. She stated she wanted to live in a civilised Western county and did not want to live in another African country, she wanted her children to enjoy the benefits of a Western lifestyle and she wanted the opportunity to earn a good living. She explained that if she returned to Nigeria, despite her education, she may not get a job and even if she did it would not be well paid in comparison to Australia. The applicant husband in his evidence stated that he was initially surprised that once he and the applicant wife obtained their visas for Australia that they could not establish themselves, find accommodation and work. The applicants did not appear to understand the limitations of [their temporary] visa.
The applicants’ desire to live outside Nigeria is consistent with country information indicating that a large number of Nigerian individuals seek to live and work outside Nigeria.
The latest DFAT report notes:
2.14 DFAT assesses that economic conditions in Nigeria create push factors for internal and external migration for individuals seeking employment opportunities. Despite strong economic growth and abundant natural resources, the Nigerian National Bureau of Statistics estimates the number of people living in extreme poverty (under USD1.25 a day) has risen from 52 per cent of the population in 2004 to 67 per cent in 2016. The World Bank attributes Nigeria’s high poverty rates to poor governance, and an estimated five million people are in urgent need of food assistance due to the Boko Haram insurgency and ethnic conflicts throughout the country.
2.15 The Nigerian diaspora is significant with many Nigerians seeking employment overseas. Nigeria receives the highest rate of international remittances in Africa and is the fifth highest globally. Remittances declined by 10 per cent in 2016 due in part to diversion of remittances to informal channels after the introduction of foreign exchange controls in 2015. The World Bank projects a 3.3 percent increase in Nigerian remittances in 2017 to USD34 billion.[23]
[23] DFAT Country Information Report Nigeria 9 March 2018 2.14, 2.15
The Tribunal considers that if the applicants return to Nigeria now or in the foreseeable future they do not face a real chance of persecution for reasons of imputed political opinion, religion or membership of a particular social group.
For the reasons set out above the Tribunal is not satisfied that either of the applicant husband and wife, or both, have a well-founded fear of persecution for any of the reasons set out in s.5J(1)(a) of the Act.
Do the applicants meet the complementary protection criterion?
The Tribunal has considered whether, on the evidence before it, there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Nigeria.
The Tribunal has accepted that the applicants are of Yoruba ethnicity and this is a major ethnic group in the south western states including Lagos and Osun State. It finds that they do not face any risk of harm for reasons of their Yoruba ethnicity.
The Tribunal has accepted that the applicant wife is a Christian and the applicant husband has converted to Christianity. The country information indicates that the Yoruba people are Christians and Muslims with a large number living in the south western states. The applicant husband grew up in Lagos and the applicant wife has lived in Ibadan and Lagos, both of which are located in the south west. Country information indicates that there is a high degree of sectarian tolerance between the two religious groups in relation to religious practice, intermarriage and conversion.
The Tribunal does not accept that either applicant faces arbitrary deprivation of life, the death penalty, torture, cruel or inhuman or degrading treatment or punishment on the basis that the applicant wife and husband are Christians or that the applicant husband has converted.
The Tribunal does not accept, for reasons set out earlier in this decision, that if the applicant wife or husband returns to Nigeria they will face significant harm at the hands of the applicant wife’s father. It does not accept that they will be arbitrarily deprived of their lives, subjected to torture, or cruel or inhuman or degrading treatment or punishment.
Specifically the Tribunal does not accept that the applicant wife will be subject to sexual assault at the behest of her father and does not accept that the applicant husband will be beaten or seriously harmed for rejecting his father in law’s sexual demands. It also does not accept he will face discrimination, ostracism or humiliation on the grounds of perceived homosexuality.
Notwithstanding the rejection of the applicant wife’s particular claims that she was sexually assaulted at the behest of her father, the Tribunal notes the country information in the UK Home Office report[24] that:
2.3.6 Rape is widespread. Societal pressure and the stigma associated with rape reduce the percentage of rapes reported and the penalties imposed on conviction. Sentences for persons convicted of rape and sexual assault were inconsistent and often minor.
[24] UK Home Office Nigeria: Women fearing gender-based harm or violence August 2016
However the report’s policy summary notes, taking into account source information, that:
3.1.3 A woman will generally be able to avail themselves of effective protection from the state, albeit women face greater difficulties in seeking and obtaining protection than men particularly for sexual- and gender-based violence.
3.1.4 Women are able to move throughout Nigeria and it is likely that internal relocation will be an option, depending on their individual circumstances, to escape localised threats from members of their family or other non-state actors.
The US State Department in its 2016 report on human rights in Nigeria[25] noted:
The law criminalizes rape. The VAPP provides penalties ranging from 12 years’ to life imprisonment for offenders older than 14 and a maximum of 14 years’ imprisonment for all others. It also provides for a public register of convicted sexual offenders and appointment of protection officers at the local government level to coordinate with courts and ensure victims receive various forms of assistance (e.g., medical, psychosocial, legal, rehabilitative, reintegrative) provided by the VAPP. The act also includes provisions to protect the identity of rape victims and a provision empowering courts to award appropriate compensation to victims of rape.
Rape remained widespread. According to a study, almost 20 percent of college students surveyed reported at least one incident of rape committed against them. In 2013 Positive Action for Treatment Access, an NGO focused on HIV treatment, released a countrywide survey of 1,000 preadolescents and adolescents (ages 10 to 19), which noted three in 10 girls reported their first sexual encounter was rape.
Societal pressure and the stigma associated with rape reduced the percentage of rapes reported and the penalties imposed for conviction. Sentences for persons convicted of rape and sexual assault were inconsistent and often minor.
[25] US State Department, Country Reports on Human Rights Practices for 2016- Nigeria Section 6 pg. 29
The Tribunal accepts that the applicant wife may have suffered some undisclosed personal harm or mistreatment in Nigeria and that this may have had a serious impact on her health and well-being.
However, despite the information indicating that rape is widespread and an issue of serious social concern the Tribunal does not consider that as a necessary and foreseeable consequence of the applicant wife being removed from Australia, there is a real risk that she will be sexually assaulted in Nigeria.
The country information indicates that rape and sexual assault are widespread but the Tribunal does not accept that the applicant wife faces a risk of sexual assault where she would be intentionally targeted or singled out for sexual assault. Rather the Tribunal considers the risk she faces is one which faces the population generally. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
There is no claim, nor any evidence before the Tribunal, that the applicants face significant harm from Nigerian authorities for any breaches of the law.
Having considered the applicants circumstances singularly, and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of either, or both, the applicants being removed from Australia to Nigeria that there is a real risk they will be arbitrarily deprived of their lives or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Louise Nicholls
Senior Member

ATTACHMENT A
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 5884

24 February 2018

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