DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 May 2021 at 9:18am
CATCHWORDS REFUGEE – protection visa – Nigeria – political opinion – social activism – fear of harm from Baba Alado and the Alado boys – state protection – internal relocation – third country protection – Economic Community of West African States (ECOWAS) – serious, ongoing and irreversible harm and continuing hardship to an Australian citizen – applicant’s biological infant son – Ministerial intervention – decision under review affirmed
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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 March 2017 to refuse to grant the applicant a protection visa under s.65 of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1705555 (Refugee) [2021] AATA 2829
Case
[2021] AATA 2829
Decision Date
CaseChat Overview and Summary
The applicant, a Nigerian national, sought review of a decision to refuse his protection visa application. The applicant claimed to fear harm from a prominent figure known as 'Baba Alado' and his associates, referred to as the 'Alado boys', in Nigeria, citing his social activism and opposition to their activities. The dispute centred on whether the applicant met the criteria for a protection visa, including the availability of state protection in Nigeria and the possibility of internal relocation or third-country protection.
The court was required to determine whether the applicant had a well-founded fear of persecution, whether Australia had protection obligations towards him, and if any exclusion clauses under the Migration Act 1958 (Cth) applied. Specifically, the court considered the adequacy of state protection in Nigeria, the reasonableness of internal relocation within Nigeria, and the availability of effective third-country protection. The court also noted submissions regarding potential ministerial intervention due to compassionate circumstances involving the applicant's Australian citizen infant son.
The court found that while Nigeria's state protection was not perfect, it was adequate to mitigate the risk of serious harm to the applicant, meaning his fear of persecution was not well-founded to the required standard. The court also considered the applicant's prior conduct in Nigeria, suggesting that his claims of fear were not genuinely held before his arrival in Australia, which would enliven the availability of third-country protection under ECOWAS arrangements. However, the court concluded that the applicant could avail himself of state protection in Nigeria, and therefore, the exclusion clause under section 36(3) of the Act did not need to be determined in this review. The court acknowledged the submissions concerning ministerial intervention, noting the compassionate circumstances involving the applicant's Australian son, but stated that this was a matter for the Minister directly.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
With respect to contradictions, inconsistencies and omissions, the Guidelines state:Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[29]CONSIDERATION OF CLAIMS AND EVIDENCE[29]At [27]–[28].First hearing Prior to the first hearing, on 21 January 2021, the applicant’s representative emailed the Tribunal and attached the following material:a.A written submission by the representative dated 18 January 2021;b.A Statutory Declaration, comprising two paragraphs, made out by the applicant on 20 January 2021;c.An extract of the delegate’s Decision Record dated 15 March 2017;d.Five online news articles relating to criminal behaviour in Mushin;e.A 19 January 2021 screenshot of an [Title 1] [social media] Page (created [in] 2011), with 407 members and showing four posts in the previous month;f.A copy of a Nigeria Police Report lodged by the applicant [in] July 2011 and dated [in] August 2011;g.A copy of a Nigeria Police Investigation Report in response to the report lodged by the applicant [in] July 2011, also dated [in] August 2011;h.A screenshot of a threatening text message to the applicant dated [in] March 2016;i.A copy of a superseded DFAT Country Information Report for Nigeria dated 9 March 2018;j.A UNHCR Research Paper (No. 150) on the ECOWAS Protocol (December 2007);k.Western Australian Birth Certificate for a male child born [date] listing the applicant as the father;l.A Statutory Declaration made out by the Australian Citizen mother of the applicant’s son and dated 4 November 2020; m.A parenting plan made out on 29 July 2020 between the applicant and the Australian Citizen mother of the applicant’s son and dated 6 January 2021;n.A National Police Certificate addressed to the applicant declaring no disclosable court outcomes as at 7 April 2020;o.A character reference from the applicant’s employer dated 18 December 2020;p.An undated character reference from the applicant’s former manager;q.A character reference from the applicant’s manager dated 12 January 2021. I note that in a number of respects the representative’s submission of 18 January 2021, at [15]-[26], appears to present evidence on behalf of the applicant, or colour the applicant’s factual claims, in a manner that could be said to intrude both on the ground reserved for an applicant not under a disability who is required to make their own case, and the fact-finding territory of the Tribunal. While zealous advocacy is both expected and laudable, given that the applicant’s representative is a legal practitioner and an experienced migration agent it would have been expected that such information be provided in the usual format of a sworn statement in the applicant’s own terms. I note that, with respect to internal relocation as a possible option for the applicant, the representative’s submission dated 18 January 2021 states as follows:32.It is acknowledged that it may be reasonable for persons to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrent of the feared persecution: Randhawa v MILGEA [1994] FCA 1253.33.A person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of 'practicable', to expect him or her to seek refuge in another part of the same country, with what is reasonable depending on the particular circumstances of the applicant and the impact upon that person of relocation: 1611949 (Refugee) [2020] AA TA 318 at [106].34.It is submitted that the applicant cannot safely relocate to another part of Nigeria to mitigate his risks of persecution. Given his vocal opposition to Baba Alado and the Alado boys, it is submitted that his profile is such that there is a real chance he would be targeted in other areas of Nigeria should he attempt to relocate.
Decision
Reasons for decision
The applicant who claims to be a citizen of Nigeria, applied for the visa on 18 July 2016. The Tribunal’s decision in summary The Tribunal finds that the applicant can avail himself of state protection in Nigeria such that any chance of serious harm or risk of significant harm would be less than a real chance or a real risk respectively. Country information demonstrates that the available state protection is less than perfect, however, it is adequate given the relevant statutory standard of assessment, noting that international standards of adequacy of state protection are applicable. Notwithstanding this finding, the applicant’s own conduct in Nigeria prior to arrival in Australia in 2011 enlivens the availability of effective third country protection under the ECOWAS travel and residency arrangements accessible to Nigerian nationals. His voluntary return to Nigeria from [Country 1] and his continued residence in Nigeria for a period of months prior to departure, all suggest that his claim to fear harm in Nigeria was not genuinely subjectively held prior to his arrival in Australia. Accordingly, although the consideration of s.36(3) exclusion does not arise for determination in this review, it would, nevertheless thwart his application for review of the delegate’s decision.Ministerial intervention The Tribunal notes that the applicant and his representative have made submissions suggesting that circumstances exist that invite the Minister to intervene to grant the visa notwithstanding any decision made by the Tribunal in this matter. The Tribunal finds that this is a matter that should be raised directly with the Minister by the applicant and his representative. Having referred to the published guidelines concerning Ministerial Intervention, I am satisfied that circumstances do exist that permit the making of a case for Ministerial Intervention in the present case. This is because, objectively, there appear to be strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident (the applicant’s biological infant son). While the Tribunal addresses these observations below and acknowledges the intention of the applicant and his representatives to make such submissions inviting Ministerial Intervention, the Tribunal has not had regard to them in the context of this decision. Protection claims The applicant claims to have been raised in Mushin, an impoverished municipality in northern Lagos, the capital city of Nigeria, which with a population estimated at over 20 million souls, is one of the most populous cities in Africa. The applicant claims that a prominent establishment figure in Lagos, exercising influence in Mushin and known by the name of ‘Baba Alado’, is associated with criminal thugs referred to colloquially as ‘Alado boys’.
Ratio Decidendi
Legal Principle Established
Given the limitations at ss.36(4), (5) and (5A) of the Act, in order to be satisfied about the applicability of the exclusion at s.36(3) of the Act, a decisionmaker must conduct some preliminary inquiry into an applicant’s claims for protection, and if necessary, consider the situation that might face such an applicant in both the receiving country and any potential third country that suggests itself as being available for entry and residence in the relevant sense.RELEVANT MIGRATION HISTORY The applicant’s movement history is as follows: ·Applicant arrived in Australia [in] October 2011 travelling on a [temporary] visa.·Applicant granted a [visitor] visa on 8 November 2011. Further [visitor] visa granted on 20 December 2011.·Applicant applied for a combined [partner] visa on 22 February 2012. ·Applicant refused a combined [partner] visa on 10 November 2014. Applicant applied for MRT review.·MRT affirmed the refusal decision on the combined [partner] visa [in] February 2016.·Applicant applied for a Protection visa on 2 March 2016, application determined to be invalid on 11 July 2016.·Applicant lodged a valid application for a Protection visa on 18 July 2016.·Protection visa application refused by a delegate of the Minister by written decision dated15 March 2017. The applicant then applied to this Tribunal for a review of that refusal decision on 22 March 2017.IDENTITY The applicant provided a copy of his Nigerian passport to the Department with his application for protection. There is no reason to doubt the validity of this document. On the basis of the information before the Tribunal, I find that the applicant is a citizen of Nigeria, which is also his receiving country for the purposes of the refugee and complementary protection assessments. The applicant’s potential entitlement to enter and reside in a third country for the purposes of any assessment under s.36(3) of the Act is addressed separately below.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 themselves 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).