1705555 (Refugee) - [2021] AATA 2829

1705555 (Refugee) [2021] AATA 2829 (17 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705555
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Dr Colin Huntly
DATE:17 May 2021
PLACE OF DECISION:  Perth
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
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
A v MIMA [1999] FCA 116
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v MI [2020] FCCA 2142
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Koe v MIMA (1997) 74 FCR 508
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v MZYYL (2012) 207 FCR 211
MIMA v A (1998) 156 ALR 489
MIMA v Khawar (2002) 210 CLR 1
MIMA v Kobayashi (unreported, Federal Court of Australia)
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
SDAQ v MIMA (2003) 129 FCR 137
Selvadurai v MIEA & Anor (1994) 34 ALD 34
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZBJH v MIAC [2007] FMCA 1395
SZIRA v MIAC [2007] FMCA 1082
SZLGP v MIC [2008] FCA 1198
SZRTC v MIBP (2014) 224 FCR 570
SZSHV v MIBP [2014] FCA 253
Thiyagarajah v MIMA (1997) 80 FCR 543
WAGH v MIMIA (2003) 131 FCR 269
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 the Migration Act 1958 (the Act).
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’.
The applicant claims to have been a [Occupation 1] and [Occupation 2] with a considerable following in Lagos prior to his departure for Australia in 2011. The applicant claims that [his work highlighted] the plight of poor youth in his hometown. The applicant’s [work] developed a profile, particularly on social media, under the applicant’s nom de plume ‘[Alias 1]’.
One [piece of work] produced by the applicant that provided a focal point for non-violent social protest was entitled ‘[Title 1]’ ([English title]). As a result, the applicant and his friends briefly became active in coordinating some informal community meetings and gave a number of [interviews]. In these forums, the applicant highlighted the issues of displacement and social disadvantage that inspired his [work]. These activities came to be referred to in the applicant’s social circle as ‘[Title 1 activities]’.
Following one of the applicant’s radio interviews, the applicant claims that he was harassed and threatened by a group of ‘Alado boys’ and warned to refrain from speaking publicly in negative terms about Baba Alado or the Alado boys.
The applicant claims that between June and July 2011, the [Title 1] group activities were regularly disrupted by Alado boys, who used a combination of violent harassment, victimisation and threats, including perpetrating violence against the applicant personally. The applicant states that three of his close associates were killed as a result of these violent attacks, forcing him to go into hiding, including a brief journey into nearby [Country 1].
The applicant claims that he remained itinerant and under threat of harm when he departed Nigeria for Australia in October 2011. He claims that this threat of harm continues to the present time and extends throughout Nigeria. The applicant also implies that the political influence exercised by Baba Alado means that he is unable to access effective and durable state protection anywhere in Nigeria now, or in the reasonably foreseeable future. On this basis, the applicant claims to be a person in respect of whom Australia has protection obligations for the purposes of a Protection visa.
The delegate refused to grant the visa on the basis that the applicant has a right to enter and reside in a third country (either Ghana or Guinea) for the purposes of s.36(3) of the Act.
Third country protection
Section 36(3) of the Act provides as follows:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
This exclusion from access to statutory protection in Australia is subject to the exception at s.36(5) of the Act which is as follows:
Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a)the country will return the non-citizen to another country; and
(b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
In SZRTC v MIBP the Full Federal Court unanimously held that a temporary period of residence contemplated by s.36(3) need not be linked with protection obligations owed to an applicant, and need not be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances in his or her country of origin.[1]
[1]SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28], [33] and per Flick J at [43]. This rejected the approach of Lee J (obiter) in WAGH v MIMIA (2003) 131 FCR 269 at [34], namely that while the right to reside may not be permanent, it must be co-extensive with the period in which protection equivalent to that to be provided by Australia as a contracting state would be required, should not be followed.
It is of some utility here to extract the legislative history of s.36(3) provided in that case by Tracey and Griffiths JJ:[2]
[2]At [15]–[19].
15. Section 36 of the Act relevantly provided that:
“(1)There is a class of visas to be known as protection visas.
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol;
...
(3)Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a)the country will return the non-citizen to another country; and
(b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A)Also, subsection (3) does not apply in relation to a country if:
(a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”
16.Subsections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth). Subsection (5A) was included by the Migration Amendment (Complementary Protection) Act2011 (Cth).
17.The Supplementary Explanatory Memorandum for the Bill which became the 1999 Act established that a purpose of the amendments then introduced (of which ss.(3)(5) form part) was to counter forum-shopping by refugees who could find protection in countries other than Australia. Paragraph 5 of the Memorandum said that:
“The purpose of proposed subsections 36(3), (4) and (5) is to ensure that a protection visa applicant will not be considered to be lacking the protection of another country if without valid reason, based on a well-founded fear of persecution, he or she has not taken all possible steps to access that protection.”
18.The Minister’s Second Reading Speech contained the following passages:
“The Refugees Convention and Protocol have, from inception, been intended to provide asylum to refugees with no other country to turn to.
Increasingly, however, it has been observed that asylum seekers are taking advantage of the convention’s arrangements.
Some refugee claimants may be nationals of more than one country, or have rights of return or entry to another country, where they would be protected against persecution.
Such people attempt to use the refugee process as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere.
This practice, widely referred to as ‘forum shopping’, represents an increasing problem faced by Australia and other countries viewed as desirable migration destinations.”
19.Paragraph 99 of the Explanatory Memorandum for the Bill which became the 2011 Act explained that:
The purpose of new subsection 36(5A) is to ensure that subsection 36(3) does not operate in relation to a person who could have sought effective protection in another country apart from Australia if the non-citizen has a well-founded fear that that country will return the non-citizen to a different country and the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to that different country.
Helpfully, their Honours also summarise the correct approach to be adopted by decision-makers in relation to an application for protection in the following passage:[3]
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s.36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s.36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s.36(3) applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s.36(3) and keep the “gateway” open.
[3]At [25].
It is apparent from the judgement in SZRTC v MIBP that the actual question before the Court concerned whether or not the applicants in question possessed a ‘right to enter and reside’. It is further evident that the question before the Court in this instance arose in the context of international agreements between nation states and not the status of a visa which had been applied for and granted. The following passage demonstrates the particular issue before the Court:[4]
By s 36(3) Australia is deemed not to have protection obligations to a non-citizen “who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently” any third country. The relevant question posed by the subsection is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU[2013] FCAFC 91, (2013) 215 FCR 35) to “reside .... temporarily” in the third country. There is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word “temporarily”. That, however, is a tension which must be resolved on the facts in each case. It is not a warrant for extending the meaning of “temporarily” such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin.
[4]At [27].
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).
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
President’s Direction
I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:
·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[5] and
·that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[6]
[5]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975, s.33(1)(b)).
[6]At [8.1].
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of an applicant’s credibility. In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[7] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[7]For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA& Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
As noted by Nichols J in the recent Federal Circuit Court decision in DAJ19 v MI:[8]
[8][2020] FCCA 2142 (5 August 2020), at [69]–[71].
69.There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80] [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).
70.The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):
“30.The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”
71.… the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]-[28]):
“41.For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”
In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[9]Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[10]Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[9](1996) 40 ALD 445.
[10]At 482.
I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[11] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[12]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.
[11](1996) 185 CLR 259.
[12]At [25].
The Tribunal is not required to accept uncritically any, or all, allegations made by an applicant. Nor are decision-makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:[13]
where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.
[13][1997] FCA 1198 at (11).
Nevertheless, as Burchett J counselled,[14] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[14]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[15]
[15]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[16]Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[17]
[16]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.
[17]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[18] This is sometimes referred to as the ‘what if I am wrong?’ consideration. I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[19]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[18]MIMA v Rajalingam (1999) 93 FCR 220.
[19](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. In this respect, in Iyer[20] the Tribunal there had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned), supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.
[20]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[21] I recognise that such a principle cannot be relied upon as an iron rule. However, it is potentially a useful illustration of the kind of weighing process that an objective decision-maker must make when making findings relevant to the existence of a well-founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
[21]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

In this respect, I note the comments of Flick J,[22] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[22]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[23]
Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a)failure to afford procedural fairness;
(b)reaching a finding without any logical or probative basis;
(c)unreasonableness; and/or
(d)jurisdictional error as discussed by Flick J in SZVAP.
[23]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, I note that, later in the same judgement,[24] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9th Circuit Court of Appeals decision in Stoyanov v INS[25] (Stoyanov):
The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’.
[24]CQG15 v MIBP [2016] FCAFC 146 at [43].
[25](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.
I note also, that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[26]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[26]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[27]
[27]At [8].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[28]
[28]At [17]–[19].
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.
The Tribunal decision referred to in the above extract involved a single Nigerian woman with two infant female children. While the relevant legal principle appears to be appropriate to the present review, it is not apparent that the factual circumstances of the Tribunal decision relied upon is in any sense recommends the previous decision as a relevant or appropriate comparator for the present application.
I also note that the submission appears to misstate the statutory relevance of ‘relocation’ for the purposes of the present review in terms of whether is ‘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’.
Firstly, the analysis of relevant law contained within the 18 January 2021 submissions at [11]–[14] and [27]–[31], such as it is, describes the statutory formulation of a well-founded fear of persecution (or ‘real chance of serious harm’) in terms of a claim based on the refugee criterion at s.36(2)(a) of the Act. However, in discussing the question of relocation or effective protection, the submission reverts to the ‘real risk’ vocabulary and the decision making matrix of complementary protection in the context of an assessment of ‘significant harm’ under s.36(2)(aa) of the Act. This unhelpfully conflates the two alternative statutory criteria (ie: ‘refugee criterion’ at s.36(2)(a) and the ‘complementary protection criteria’ at s.36(2)(aa) of the Act).
The reason for this misstatement may be that the representative has relied upon a review decision which applied the former, Convention-based, applicable legal framework. As the present review relates to an application made after 14 December 2014, it is the present statutory legal framework that must be applied.
I further note that the assessment of a real chance of serious harm for the purposes of determining the objective well-foundedness of a given fear of persecution at s.36(2)(a) of the Act requires a finding at s.5(J)(1)(c) of the Act that:
the real chance of persecution relates to all areas of a receiving country.
There is also no well-founded fear of persecution ‘if effective protection measures are available to the person in a receiving country’ (ss.5J(2) and 5LA). In this respect, I note that the question of effective state protection does arise at s.5LA of the Act, however, this may be taken to be the case 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.
It is well-settled that under s.5J(1) of the Act (and the previous Convention provisions from which the definition is drawn), while there can be no legal presumption of state protection,[30] there is some authority for the proposition that an asylum seeker in Australia will bear a practical burden of establishing that protection is lacking.[31] I further note that the Supreme Court of Canada stated in Canada (Attorney-General) v Ward (Ward) that in the absence of a state admission as to its inability to protect its nationals, clear and convincing evidence of a state’s inability to protect must be provided.[32] The Court continued:^[33]
Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus … it should be assumed that the State is capable of protecting a claimant.
[30]A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999). E.g. Koe v MIMA (1997) 74 FCR 508, Thiyagarajah v MIMA (1997) 80 FCR 543 at 567, MIMA v Prathapan (1998) 86 FCR 95, MIMA v A (1998) 156 ALR 489 (Nicholson J, 9 April 1998) and MIMA v Kobayashi (unreported, Federal Court of Australia, Foster J, 29 May 1998).
[31]E.g. SZBJH v MIAC [2007] FMCA 1395 (Scarlett FM, 3 August 2007) at [43] and SZIRA v MIAC [2007] FMCA 1082 (Nicholls FM, 7 June 2007) at [32].
[32][1993] 103 DLR (4th) 1 at 23.
[33]Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1 at 23.
In MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[34] Accordingly, I have proceeded on the basis that the Nigerian state ‘is capable within its jurisdiction of protecting [the] applicant’. In making this assessment, I note that the applicant himself has provided evidence that he was able to make a police complaint about the very harm that he has identified as fearing in Nigeria and that this complaint was investigated by Nigerian Police.
[34](2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.
It is noted that the relevant assessment of state protection in relation to complementary protection assessment for the purposes of s.36(2B)(b) is differently framed and the assessment of the available standard of protection in a receiving country is on the basis of ‘international standards’.[35]
[35]MIAC v MZYYL (2012) 207 FCR 211 at [36]–[37].
It will be appreciated that the submissions of 18 January 2021 do not provide anything more than a bare statement of unsupported opinion based on a confused articulation of the relevant statutory formulation as follows:
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.
Even if the applicant’s contention that he continues to be the target of animosity from ‘Baba Alado’ and criminal thugs associated with this person of influence is accepted, there is nothing to suggest necessarily, or even probably, that the threat posed by such individuals has the sanction or condonation of the Nigerian state, or that the reach of these potential agents of harm extends throughout the country of Nigeria. Certainly, the bare assertion made in the submissions above does not meet the probative challenge.
Accordingly, to the extent that the applicant’s claims can be characterised as being based on a well-founded fear of harm in Nigeria for the essential and significant reason of his former [Title 1] social activism targeted by agents of harm including, but not limited to, criminal thugs and other non-state actors, they do not give rise to protection obligations in Australia under s.36(2)(a) of the Act.
As far as the possible application of s.36(2)(aa) of the Act to the applicant’s circumstances, once again, by virtue of s.36(2)(2B)(b) I note that there will not be a real risk that the applicant will suffer significant harm if:
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

For the reasons articulated above, a decisionmaker is entitled to assume (unless the contrary is proved) that the Nigerian state is capable within its jurisdiction of protecting an applicant. Accordingly, as above, I have proceeded on the basis that the Nigerian state ‘is capable within its jurisdiction of protecting [the] applicant’, noting that the applicant himself has provided evidence that he was able to make a police complaint about the very harm that he has identified as fearing in Nigeria and that this complaint was investigated by Nigerian Police.
Accordingly, I am not satisfied that there are substantial grounds to believe that the applicant is a person in respect of whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed from Australia to the receiving country, there is a real risk that the applicant will suffer significant harm, for the purposes of s.36(2)(aa) of the Act.
Even if one were to find that this applicant potentially engaged Australia’s protection obligations by virtue of either s.36(2)(a) or s.36(2)(aa) of the Act, the evidence presented satisfies me that the applicant would be prevented from accessing Protection in Australia by operation of s.36(3) of the Act referred to above, relating to effective third country protection. In passing, I note that this was the reason for the delegate’s refusal decision in the first instance.
Having made this observation, the assertion made in the representative’s 18 January 2021 submission relating to ‘third country protection’ extracted above is noted:
In light of the obstacles in practice restricting citizens of member states from enjoying this freedom of movement within ECOWAS countries, it is submitted that the applicant does not have the right to enter and reside in a third country.
Once again, this submission appears to be based on a restrictive reading of selective country information, all of which is more dated than that which is currently available. It also draws heavily from country information that addresses the specific challenges faced by women without protection or support. Without labouring the distinguishing features of the particular country information, I note that the representative’s submissions on relocation dated 14 March 2021 further stated:
12.The applicant instructs that he moved around a few places in Lagos before travelling by road to [Country 1], which was around [number] hours from Lagos. The applicant advises that he had to return to Lagos as he could not afford to stay in [Country 1].
There is no suggestion that the applicant was denied a right to enter and reside in [Country 1] on this occasion, taking place as it appears to have done, soon after the events from which the applicant derived an apprehension of physical harassment and threat in Lagos. Importantly, this was around the time at which the representative’s selected ECOWAS-related country information would have been current.[36]
[36]Cf: DFAT Thematic Report – Economic Community of West African States (ECOWAS) (3 December 2020).
Accordingly, the applicant was well aware of his freedom of cross-border travel and residence prior to his departure for Australia, further, he voluntarily returned to Nigeria for a period of months prior to his departure for Australia. The applicant’s resort to the protection of [Country 1], accessing the ECOWAS migration freedoms, together with his subsequent voluntary return to Nigeria for a period of months prior to his departure for Australia are sufficient, in and of themselves to satisfy me, not only that the exclusion at s.36(3) of the Act is potentially determinative, but that, in any event the applicant’s subjective view on return to Nigeria voluntarily in 2011, was that he faced less than a real chance of serious harm or a real risk of significant harm in that country at the time of his departure for Australia in 2011 from any person, for any reason.
There is no suggestion that the applicant is a member of the same family unit as a person to whom Australia owes protection obligations under the Act.
Accordingly, the applicant is not a person in respect of whom Australia has protection obligations by virtue of s.36 of the Act.
MINISTERIAL INTERVENTION
In the course of this review, it was suggested by the applicant’s representative that, notwithstanding an adverse outcome, the applicant’s personal circumstances may warrant referral to the Minister for their personal intervention. It is not the usual practice of the Tribunal as presently constituted to comment on such matters.
However, after interviewing the applicant in person and reviewing the supporting evidence regarding his personal circumstances in Australia, the applicant’s representative was invited to provide a copy of any draft submissions that were contemplated for such an eventuality. Draft submissions on the question of Ministerial Intervention were provided to the Tribunal. The Tribunal makes no comment about the draft Ministerial Intervention submission.
The current Minister’s guidelines require a referral by the Tribunal to first be assessed by the Department. Cases which do not meet the guidelines are finalised without being brought to the Minister’s attention irrespective of whether they were referred to the Minister by the Tribunal or not.[37]
[37]Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) (reissued 29 March 2016) at [8].
The President’s Direction - Conducting Migration and Refugee Reviews specifies the appropriate procedure for referring a matter to the Minister for humanitarian consideration. It notes that the Tribunal generally has regard to the Minister’s guidelines when considering whether or not a case should be drawn to the attention of the Minister.[38]
[38]President’s Direction - Conducting Migration and Refugee Reviews at [16.1].
Character, conduct and credibility
By way of background, I note that the applicant appears to have been fully compliant with all his applicable visa conditions while resident in this country for almost 10 years. His personal circumstances have changed considerably over that time and, while I note that the Partnership visa he had applied for was refused (and that this refusal was upheld by the former MRT on review), this appears to have been because of the breakdown of a genuine relationship, rather than any suggestion that it was not a genuine relationship.
The applicant has consistently asserted that, during the relationship he endured domestic violence. His application for review of the refusal decision was found to be non-compliant with the evidentiary format requirements for appeals, based on claims of domestic violence. I note that he has provided a substantial number of signed and sworn statements, including police complaints, in support of his claims. There is no reason to doubt the sincerity of the applicant’s claims in this regard.
He is clearly a contributing member of his community, both socially and in terms of his employment. This is borne out by the character evidence I have seen, and is not contradicted by his National Police Clearance, which reveals no disclosable offences. In addition, after having had the opportunity to interview the applicant at length and in detail on two occasions, I found his evidence to have been straightforward, credible and sincere.
Consequences for ‘an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident’
Of particular relevance to the question of Ministerial Intervention is the role the applicant plays as a co-carer for his biological son (DOB: [date]), an Australian Citizen by birth. The liaison which produced this child was of a casual nature. The parents of this Australian citizen child are erstwhile co-workers, who remain on amicable terms. The principle domicile of the child is with his Australian citizen mother.
Notwithstanding the platonic nature of their relationship, the applicant and the mother of his child (both shift workers in the [specified] sector) negotiated a formal Parenting Plan on 29 July 2020, executing it on 6 January 2021. In general terms, this plan provides for genuine shared parenting of the child. Supporting Statutory Declarations and the in-person evidence of the applicant satisfy me that this agreement is genuine and that the applicant meets his financial and familial responsibilities towards the child.
Given the well documented attachment needs of a child of tender years, I am also satisfied that the removal of the applicant, being both equal joint-parent and principle male role model, would constitute an existential challenge to his infant son’s psychological development. These considerations satisfy me that there are ‘(s)trong 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.’
This ‘serious, ongoing and irreversible harm and continuing hardship’ would be compounded by the financial impact on the child, given that the present care and financial support which allows for the continued employment of the child’s mother would no longer be available and the applicant would be unlikely to contribute any financial assistance or support to assist with the maintenance of the applicant’s Australian citizen son. Viewed from this perspective, the ‘serious, ongoing and irreversible harm and continuing hardship’ would also inure to the child’s mother, herself an Australian citizen. These considerations recommend the applicant as a person whose circumstances meet the published guidelines for referral.
It is further open to the Tribunal, on this assessment, to suggest that the applicant’s exceptional circumstances weigh significantly in favour of an exercise of Ministerial discretion in this case. Accordingly, pursuant to the guidelines the Tribunal will forward a copy of this decision, together with a copy of the applicant’s Tribunal file, to the Department with the request that the material be referred to Minister for favourable consideration as to the exercise of Ministerial Intervention.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Colin Huntly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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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 the 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.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
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