1729652 (Refugee)

1729652 (Refugee) [2019] AATA 6484 (12 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729652
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sheridan Lee
DATE:12 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the fourth named applicant satisfies s.36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 12 August 2019 at 12:16pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Nigeria – Federal Circuit Court Remittal – race – mixed race relationship – religion – Christian – family disapproval – societal discrimination – racism and prejudice – threat by gangsters – threats from Boko Haram – lack of police protection – caste system – mental health issues – threat of kidnapping – third country protection – Economic Community of West Africa – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12
CASES

AUB16 & Ors v Minister for Immigration & Anor [2017] FCCA 2634
MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The application was made on 18 October 2013. The first applicant is a [age] year old Malaysian woman, married to the second applicant, a [age] year old Nigerian man. The third and fourth applicants are the children of the first and second applicants. The third applicant is a dual Malaysian-Nigerian citizen, and the fourth applicant is a Nigerian citizen. Country of nationality will be discussed further below.
The applicants appeared before the Tribunal on 20 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence in person from the applicants’ friend, [Mr A] and over the phone from [Pastor B] from Malaysia. The Tribunal attempted to contact [Mr C] in Nigeria over the phone on the contact details provided by the applicants, however the call was unsuccessful. A written statement was also provided by [Mr C], dated 12 February 2019. The Tribunal provided additional time in case the applicants wished to submit additional evidence from [Mr C]. No further statement was received.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children and spouses.
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background
The applicants claim to fear harm from gangsters associated with [the first applicant’s] family and the general community in Malaysia as a result of entering into a mixed-race marriage. They also claim to fear harm in Nigeria from Boko Haram on the basis of their Christian faith and on the basis that [the first applicant] and the children would be at risk of kidnap as a result of their fair skin.
[The first applicant] is from [Town 1] in Sabah, Malaysia, and is an adherent to the Christian faith. [The first applicant] is one of [number] children, she believes that most of her family remain in [Town 1]. [The first applicant] moved to [Town 2] when she went to college in Kuala Lumpur. She first came to Australia [in] August 2012 on an Electronic Travel Authority (Visitor) visa. She was then granted a [Student] visa on 4 October 2012 to study English and gave evidence that she went on to complete [a qualification].
[The second applicant] is from Port-Harcourt in Nigeria and comes from the Igbo ethnic tribe. He is an adherent to the Christian faith. His family moved to Maiduguri in the North of Nigeria when he was a child; however he was sent to Port-Harcourt to study. [The second applicant] has three brothers and a sister remaining in Nigeria. He is unsure where his brothers reside, but his sister is in Imo State, where his mother lived until she passed away in 2017. [The second applicant] travelled to Malaysia in 2008 in pursuit of business and education opportunities. [The second applicant] was granted consecutive visas to reside in Malaysia from 2008 until 2013. His most recent visa to enter Malaysia expired in July 2013.
[The first applicant] and [the second applicant] met in Malaysia in 2009 and married in 2011. Their first child was born in Malaysia on [date] and their second child was born in Australia on [date]. At the time of the hearing, they were [age] and [age] years old.
[The first applicant] was joined in Australia by [the second applicant] and their eldest child [in] May 2013, after they were granted associated student visas. On 18 October 2013, the first, second and third named applicants applied for protection visas. Their second child – the fourth named applicant – was added by operation of law when he was born.
In addition to the two children included in the protection application, [the first applicant] and [the second applicant] have a third child, born in Australia on [date].
Country of nationality
The first and third named applicants claim to be Malaysian and entered Australia on Malaysian passports. The second named applicant claims to be Nigerian and entered Australia on a Nigerian passport. I accept that the first and third named applicants are Malaysian and the second named applicant is Nigerian.
As outlined above, the couple’s second child was born in Australia to a Malaysian mother and a Nigerian father. The United Nations Commissioner for Refugees outlined Malaysian citizenship laws as follows:
In Malaysia, children born in the country to either Malaysian mothers or Malaysian fathers automatically acquire Malaysian nationality. But children born to Malaysian mothers outside of Malaysia may only acquire Malaysian citizenship at the discretion of the Federal Government through registration at an overseas Malaysian consulate or at the National Registration Department in Malaysia[1].
[1] United Nations High Commissioner for Refugees 2014, Background Note on Gender Equity, National Laws and Statelessness 2014, 8 March, >
Conversely, the Constitution of the Federal Republic of Nigeria sets out that a child born outside of Nigeria is a citizen if either of their parents is a citizen of Nigeria.[2] As such, I find that applicant four is a citizen of Nigeria. This has not been disputed by the parties.
[2] Constitution of the Federal Republic of Nigeria 1999, s.25(1)(c).
In addition to holding Malaysian citizenship, the third named applicant has automatic Nigerian citizenship by virtue of the Constitution of that country. The Tribunal notes that the Federal Constitution of Malaysia restricts Malaysian citizens from holding dual citizenship.[3] However, article 24 sets out that the alternative citizenship must be acquired through a voluntary act (such as registration or naturalization) or the individual must voluntarily claim or exercise a right available to them under the law of that country (for example, voting in an election). In either of those circumstances ‘the Federal Government may by order deprive that person of his citizenship’. Until such time as the Federal Government of Malaysia were to issue an order to deprive applicant three of his Malaysian citizenship, the Tribunal finds that applicant three is a dual citizen of Malaysia and Nigeria.
[3] Chapter 2, Article 24.
There is no evidence before the Tribunal to indicate that applicant one would have a right to enter and reside in Nigeria, or that applicants two and four would have a right to enter and reside in Malaysia. No applications for visas or citizenship have been made with those countries.
History of proceedings
The protection visas were refused by a delegate of the Minister on 18 December 2014. The delegate found that the applicants were not at risk of being harmed in either Malaysia or Nigeria in the reasonably foreseeable future. The applicants appealed that decision and on 24 March 2016 the Tribunal affirmed the decision under review. The applicants appealed that decision to the Federal Circuit Court.
On 31 October 2017, Judge Rieuthmuller ordered that the decision of the first Tribunal be quashed and the matter be remitted to be re-determined according to law.[4] His Honour found that the Tribunal had failed to consider an integer of the claim as it had not considered the potential harm caused by the separation of the first and third applicants from the second and fourth applicants. In making this decision, his Honour acknowledged that it was apparent that the case was put before the Tribunal on the basis that the first and second applicants would be living together with their children in either Malaysia or Nigeria. Nevertheless, there was no evidence that Australia could or would deport them to the same country. Therefore, his Honour considered that the only inference was that they would be deported to different countries.
[4] AUB16 & Ors v Minister for Immigration & Anor [2017] FCCA 2634
Judge Riethmuller drew a comparison between the current matter and that considered in MZAEN & Ors v Minister for Immigration & Anor.[5] In that case the first applicant was a national of Lebanon and the second applicant a national of Jordan. Their child was a national of Lebanon. The second applicant did not have a right to enter and reside in Lebanon as she had not made an application for citizenship. Judge Riley held that the Tribunal should have considered any psychological harm suffered as a result of the separation of the family members in the context of Australia’s complementary protection obligations. She distinguished the matter from SZRSN v Minister for Immigration and Citizenship[6] on the basis that both the mother and child would be removed from Australia and would possibly suffer significant harm in their respective receiving countries, being the possible psychological harm of being separated from each other. Judge Riethmuller found that the circumstances of the current matter are indistinguishable from those in MZAEN.
[5] [2016 FCCA 620.
[6] [2013] FCA 751. In that case, the court held that the consequences of the deportation itself could not amount to persecution. The person who was removed from Australia was a citizen of New Zealand and his children were to remain in Australia.
Summary of claims
The first and second named applicants have each made individual claims for protection, with applicants 3 and 4 included as members of the family unit. In support of their claims, they provided statutory declarations and application for protection forms to the Department and attended an interview with the delegate on 13 May 2014. Further submissions were made to the first Tribunal and the applicants attended a hearing on 17 March 2016. New medical evidence, statutory declarations and legal submissions were submitted to the current Tribunal, and a hearing was conducted on 20 February 2019.
Malaysia
The claims that have been made to the Department and the Tribunal in respect of the potential harm faced by the applicants in Malaysia can be summarised as follows:
·the first and second named applicants will be physically harmed or killed by [the first applicant’s] family as a result of entering into a mixed-race marriage
·the first and second named applicants will be physically harmed or killed by gangsters associated with [the first applicant’s] family as a result of entering into a mixed-race marriage
·the first and second named applicants are at risk of harm from the Sabah community as a result of entering into a mixed-race marriage
·the family would be discriminated against on the basis of their Christian faith in a majority Muslim country
·applicants three and four would be orphaned
·the risk would extend to all areas of Malaysia as the applicants may be identified by members of the community travelling in other areas
·the Malaysian police will not assist in the protection of black people against assault or other crimes.
Nigeria
The claims that have been made to the Department and the Tribunal in respect of the potential harm faced by the applicants in Nigeria can be summarised as follows:
·the family would fall victim to sectarian violence instigated by Boko Haram on the basis of their adherence to the Christian faith
·the first, third and fourth applicant would be at risk of kidnapping because their fair skin would be perceived as signifying wealth
·the second named applicant would be at risk of physical harm or death when protecting his family from kidnapping
·the family would face societal discrimination on the basis that the first, third and fourth applicant fall outside the Ibo Osu caste system.
Evidence
Malaysia
Visa application
In their applications for protection, [the first applicant] and [the second applicant] outlined that they first experienced issues in Malaysia when they commenced a relationship. [The first applicant’s] family was not supportive of her relationship with a black man and threatened to harm them if the relationship continued.
Both applicants submitted statutory declarations, dated 11 October 2013, with their applications. In her statutory declaration, [the first applicant] described an altercation with her sister, who disapproved of the marriage. The two got into an argument and [the first applicant] was pushed and fell down. At the time of the argument [the first applicant] was pregnant and alleges that she nearly lost her baby as a result of the fall. She was hospitalised for two weeks, but later discharged with no ongoing concerns.
Both applicants described alleged incidents that occurred [in] July 2011 and [in] November 2012. The first incident involved a group of young men, described as ‘notorious Malay gangsters’, attending [Location 1], [Town 2], asking for the couple. The group threatened to kill them and told them to separate.
The second incident described was an attack on [the second applicant’s] car, which was smashed by a group of hoodlums that shouted ‘[details deleted]’ - which means leave [the first applicant’s first name] alone in Malay.
On the application forms, both applicant one and two indicated that text messages and photos of the smashed car would be provided. A photograph of a smashed car window was subsequently provided. No text messages were supplied.
Both applicants further expressed a belief that they would receive no assistance from the police, who do not assist people of colour.
In addition to the above, during the departmental interview, the applicants outlined that:
·when applicant one travelled to Sabah with applicant two, he was refused entry to the village because he is black
·[the first applicant’s] family refused to accept the dowry and the couple married with a civil ceremony
·they could not hold hands in Malaysia because applicant two is black.
First Tribunal
Submissions dated 2 March 2016 outline that the applicants spent their life in hiding. [The second applicant] was sleeping at friends’ homes and at his place of business. The submissions explain that [the first applicant] did not need to change her workplace as [the second applicant] was the target of the gangsters. The submissions provided some further information in relation to the attack on [the second applicant’s] car, which allegedly took place at a tea house about 30 minutes from his home, while applicant one was in Australia. [The second applicant] did not report the attack on his car because he thought it was pointless.
The Tribunal was provided with a statement from [Pastor B], Resident Pastor-in-charge of [a named church], dated [March] 2016. The statement outlines that [Pastor B] offered [the second applicant] a place to stay in the Church to avoid danger.
The first Tribunal member spent some time discussing the living arrangements of the couple during their time in Malaysia and identified a number of inconsistencies between the evidence of [the first applicant] and [the second applicant] and between their evidence at the hearing against the information provided on the protection application forms. In particular, it was noted that:
·the statutory declarations, dated 11 October 2013, outlined that gangsters visited the applicants’ apartment at [Location 1], [Town 2], [in] July 2011. The applicants allegedly packed up and moved after their police complaint yielded no results.
·The application for protection form states that applicant one lived at [Address 1] from December 2010 until August 2012 and applicant two from December 2010 until May 2013
·At the hearing the applicants maintained that the gangsters visited [Address 2 at Location 1]. They then moved to [Address 3], [Town 2], but had to leave because the Chinese landlord objected to a black man staying there. Finally, they moved to [Address 1].
·At the hearing, there was a discrepancy in evidence as to how long the couple stayed at [Address 3], with applicant one saying that they stayed for a week and applicant two gave evidence that they stayed two to three months.

At the hearing, [the first applicant] made a new allegation that gangsters waited for her outside her work and screamed at her. When the Tribunal Member asked why she had not raised this previously, [the first applicant] fell silent. [The first applicant] also gave evidence that [the second applicant] had never been to Sabah because people would harass him. She said she had tried to introduce her husband to her Aunt in Kuala Lumpur but he Aunt didn’t want to meet him due to his skin colour.
Applicant two gave evidence that applicant one went to the police after the gangsters visited their home, however she was told to leave the black man alone.
Second Tribunal
During the hearing on 20 February 2019, I spoke with [the first applicant] and [the second applicant] separately and then together. [The second applicant] gave evidence that he met [the first applicant] on a bus in 2009 and they started dating shortly after. [The first applicant] spoke to her family about the relationship and they told her that she could marry a negro over their dead body. [The second applicant] alleged that he received threats over the phone and via text message as a result of his relationship with [the first applicant]. Callers would tell him to leave [the first applicant] and said they would kill him. [The second applicant] wouldn’t know who the calls were from. I asked [the second applicant] in which language the text messages and phone calls were made. He responded that they were mainly in Malay, but sometimes broken English. He thought of changing his number but then he felt like they would track him another way and he wouldn’t see it coming.
[The first applicant] gave evidence that her sister, [name deleted], pushed her down during an altercation while she was pregnant and she was admitted to hospital. She alleged that the incident happened at her Aunty’s house in Kuala Lumpur, where they had met to talk. [The first applicant] was then taken to [a hospital in Kuala Lumpur]. She explained that the hospital staff told her that the baby was good, she just needed to rest. They wanted to make sure the baby was ok because she was heavily pregnant.
[The second applicant] gave evidence that gangsters discovered where he and [the first applicant] were living. He wasn’t around when they came. The gangsters grabbed [the first applicant’s] neck and told her to ‘leave [the second applicant] alone’ or they would kill her in Malay. [The second applicant] gave evidence that he was contemplating if he should leave [the first applicant], but he didn’t want to give the family credit and prove them right. He believes that her family is very racist, especially her sister who is [a government official]. [The second applicant] alleged that gangsters came back to visit the apartment again, but [the first applicant] didn’t answer the door.
[The second applicant] gave evidence that he lived in hiding for a year by moving from house to house. He was sleeping at friends’ houses and so was [the first applicant]. He explained that he was always looking from left to right and the couple would never walk together. During that time he would use the car rather than walk. I asked [the second applicant] how he continued to work, to which he explained that his job didn’t require that he attend the premises each day. Customers would call to say what they want and then he would source that material or part.
When [the first applicant] came to Australia, [the second applicant] stayed in Malaysia with the baby. He gave evidence that he couldn’t stay in the house all the time. He went out to meet some friends at a Chinese tea house and some Malay boys on motorbikes came up beside the car. He alleged that he couldn’t understand what they said because they spoke Malay, but they were saying [the first applicant’s first name]. Everyone rushed to see what was happening. [The second applicant] said he was scared for his boy, but believes they were safe because there were a lot of people around. A photograph of a smashed car window was provided as evidence of the attack.
I asked [the second applicant] how he knew they were gangsters. He explained that it was the way they looked. People would come by the property to ask about the couple and neighbours would complain. [The second applicant] gave evidence that he asked [the first applicant] if her family were capable of killing him just because he is a black man who had come into her life. She would not answer the question, but she would say that her family don’t want anything black.
I asked [the second applicant] if he had ever met [the first applicant’s] family. He explained that he tried to go to Sabah before things heat up, but immigration wouldn’t let him enter. When I asked [the first applicant] if she had ever been to Sabah with [the second applicant], she also said [the second applicant] was stopped by Sabah immigration. He had a Malaysian visa, but it did not allow him to enter into Sabah.
[The first applicant] alleged that the head of her village community, [a named person], contacted her by phone and told her not to marry [the second applicant] or he would kill her and her husband.
She gave evidence that gangsters came to her [workplace] and screamed and shouted from outside. She couldn’t remember how many people. They called her name and said ‘I will kill you and your husband’. I asked [the first applicant] how the gangsters would know who she was. She thought that it would be from her family or maybe they followed her.
I asked [the first applicant] why gangsters would be looking for her as a result of her marriage. [The first applicant] speculated that the gangsters had been hired for money. I asked who would pay for the gangsters and she said she didn’t know – maybe the community. I asked if anyone else from her community had been killed by gangsters and she didn’t know.
The applicant gave evidence that her parents are [farmers]. One sister is a [government official], and [the others are in the defence forces]. She was unsure what her brothers do as they were students when she left Malaysia.
I raised concerns with [the first applicant] as to the plausibility of her story in relation to gangsters and highlighted that Malaysia has a large population, which could make it difficult to locate people. I asked [the first applicant] if she had any documentary evidence to substantiate the threats made against her. She said that she didn’t, because she didn’t know that she would come to Australia for this. I highlighted to [the first applicant] that she earlier gave evidence that she came to Australia because she wanted to see if it was safe for her family. The earlier statement indicated that she was aware that she was travelling to Australia to seek protection. She did not provide any further comment.
The applicants requested that the Tribunal take evidence from [Mr A] and [Pastor B]. [Mr A] gave evidence that he met [the second applicant] in Malaysia in 2008 when they both attended college and lived in the same apartment building. The two formed a friendship as they are both Nigerian and spoke the same language. [The second applicant] introduced [Mr A] to [the first applicant] in about 2009.
[Mr A] gave evidence that when [the second applicant] was going through everything in Malaysia, he recommended that he should seek protection. [The second applicant] would explain what was happening, but [Mr A] also experienced it because they lived together. I asked [Mr A] to explain what he experienced. [Mr A] went on to say that [the second applicant] had told him that he had received threats, but he didn’t get the whole picture until one day they were walking towards the bus stop and guys on motorbikes surrounded them and yelled at them in Malay. [Mr A] didn’t understand what they said, other than the [first applicant’s first name].
[Pastor B] gave evidence that he is a pastor in the church attended by the applicants in Malaysia. The pastor gave evidence that he was happy for [the first applicant] and [the second applicant] when they got married, but they also received some complaints. He alleged that due to threats received by the couple, they were ‘running here and there. Sleeping in the church and other places.’ [Pastor B] explained that as a pastor, he tries to save lives, so he suggested to the applicants that they should leave Malaysia.
In addition to the previous claims, in a statutory declaration dated 13 February 2019, [the first applicant] raised concerns that she would be discriminated against in Malaysia because she is not Muslim.
Nigeria
Visa application
In his application for protection, [the second applicant] outlined that his father was killed by Boko Haram [in] 2013 in an explosion [at a specified location]. He further outlined that Boko Haram destroyed his father’s house and [shop].
[The second applicant] claimed that he has no place to go in Nigeria as the family home and his source of income was destroyed by Boko Haram, who have vowed to kill all Christians in the north of Nigeria.
He further outlined that [the first applicant] and the children would be at greater risk of kidnap due to their fair skin.
First Tribunal
[The second applicant] gave evidence that he attended secondary school in Lagos and University in Imo state, before working in Imo state for two years. Based on this evidence, the Tribunal found that [the second applicant] had lived in the south of Nigeria for 13 years before travelling to Malaysia.
When questioned about his remaining family, [the second applicant] gave evidence that all three of his brothers and his mother continued to reside in Imo state. Two of his brothers were working in [a named] industry and one was studying at [a university] in Imo state. [The second applicant’s] sister was not discussed.
[The second applicant] raised new evidence at the hearing, alleging that his Mother was poisoned. He did not know by who or why.
[The second applicant] confirmed that he was able to continue running his [business] in Malaysia following the death of his father and the destruction of his [property], sourcing parts from [other countries].
In addition to the claims raised on the application for protection, [the second applicant] raised a claim that [the first applicant] and the children would be treated as outcastes under the Osu tribe caste system.
Second Tribunal
In a statement of 13 February 2019, [the second applicant] outlined that although he studied in the South of Nigeria, he has stronger ties to the North.
In relation to the fear of his family being kidnapped, he expressed concern that he would be unable to pay ransom and this would put his family at greater risk of harm.
The statement also outlined that [the second applicant’s] mother has now passed away.
When provided with an opportunity to provide evidence in relation to her fears in Nigeria at the Tribunal hearing, [the first applicant] explained that she doesn’t understand the system and [the second applicant] would be best to ask.
[The second applicant] gave evidence that nowhere is safe in Nigeria, even the capital or his home in the South. There is high unemployment and people are trying to survive and eat. He alleged that criminals would target white people because it is assumed that they are wealthy. If that were to happen, the family wouldn’t be safe.
I highlighted that the Department of Foreign Affairs and Trade Country Information Report[7] indicates that Nigeria is ethnically diverse and the South has a majority Christian demographic. This information indicates that the family would not be at any particular risk in that area. [The second applicant] responded that if you come from overseas or you are white you are at a great risk. Available information suggests that there is no significant risk to Christians in the South from Boko Haram. [The second applicant] responded to say that the media don’t always report on the issues and Boko Haram are moving South.
[7] 9 March 2018
In relation to the Osu caste, [the second applicant] explained that the Osu caste of the Ibos do not allow marriage outside the caste system and that is why Ibos often move away to areas where their caste is unknown to others. He believes that his family would be outcasts.
Finally, [the second applicant] alleged that you can’t report things in Nigeria without them judging your skin or taking a bribe.
Medical evidence
At the Tribunal hearing, [the first applicant] gave evidence that she is currently taking medication for depression. She gets aggressive towards her family and sometimes stays in the room. She stated that sometimes she can’t think. She explained that the family received visits once a month from a social worker for about a year. The contract commenced when [the second applicant] called [Organisation 1] to get help.
When I asked [the first applicant] if the family would make arrangements to be together if they were deported to different countries, she became visibly upset. She explained that the family had never been apart and she couldn’t live without her son. She went on to say that it would be better for her to end everything – it would be too hard to suffer.
[The second applicant] gave evidence that [the first applicant] has been suffering from depression and takes medication to manage her condition. She has attempted suicide, pierced a door with a knife and made threats to kill the children. He believes she is a good mother, but has been suffering with her mental health.
[The second applicant] advised that [Organisation 1] called Child Protection, but the child protection worker felt the children were not at immediate risk and they were assigned a case worked from [Service 1]. [The second applicant] was unsure whether to report [the first applicant’s] behaviour to the police as he didn’t want to cause issues for the family. He gave evidence that he had requested a referral for a psychologist but there is a wait. In the meantime, they are seeing a counsellor through their son’s school, [school name deleted].
A letter from [Dr D], dated 12 December 2018, confirms that [the first applicant] is [Dr D’s] patient and has been treated for depression. [The first applicant’s] depression is treated with [a medication], which is the second medication she has tried. Initially she tried [another medication] but did not find this effective. The letter goes on to state that [the first applicant] has done counselling through [another organisation] and is again pursuing counselling through [Organisation 1]. The letter states that depression affects [the first applicant] in many ways, for example she finds it difficult to express how she feels and to discuss the traumas she has experienced. She feels at times thoughts of self-harm and feels withdrawn much of the time.
I also have before me a letter from [a named social worker] with [Service 1], dated 13 December 2018. The letter states that [the social worker] worked with [the first and second applicants'] family from January 2017 to August 2018 after the family were referred through [the Department of Health and Human Services]. The referral from the DHHS child protection worker states that the children are exposed to [the first applicant’s] mental health issues and the ensuing family violence she perpetrates.
The Tribunal provided the applicant with additional time to provide evidence in respect of [the first applicant’s] mental health and capacity to care for their children.
[Organisation 1] has provided a letter, dated 22 February 2019, confirming that [the second applicant] and [the first applicant] received support from the counselling program. The letter outlines that [the second applicant] was first referred to the program from the [Organisation 1 program] in late 2016 having presented with distress at the loss of his mother and general distress resulting from uncertainty associated with the refugee determination process. [The second applicant] attended five sessions with a counsellor in 2017. [The first applicant] was referred to the program and attended just one session [in] June 2017. Notes indicate that [the first applicant] advised the counsellor that she had been prescribed medication, but was not taking the medication.
[Dr E] conducted a clinical assessment of [the first applicant] and prepared a report, dated 6 March 2019. [Dr E] holds a doctoral degree in Psychology and is an accredited Clinical Psychologist. In his report, [Dr E] concludes that ‘[the first applicant] is a psychologically fragile person with limited internal resources. She is a person whose level of intellectual development is at the “low” end of the populations, but not so low as to be regarded as categorically defining Intellectual Disability’. He further notes that:
[The first applicant] has been treated for depression and post traumatic stress disorder by other professionals in the past and has a long history of severe mental health concerns which have resulted in major mood disturbance and that has previously also resulted in violence against her partner and mental health breakdown. It is my professional opinion that [the first applicant] would not be able to cope being separated from her husband and children and the separation itself would create a major risk to her mental health and well-being. Without the structure and support of her family around her, it is my professional opinion that [the first applicant] on would be a danger to herself and her family. In my professional opinion it is in the best interests of the mother and the child for them to stay in Australia where they can be supported by the family unit and support services. My opinion is that this is a special case and the dependency of the mother and child to be supported by the husband and the family unit is of significant importance in this case.
I note that while [the second applicant] expressed dismay at the prospect of the family being separated, no specific claims related to the impact of the separation on his health or on the health of the children were put forward to the Tribunal.
Refugee criteria
Malaysia
I accept that applicant one is Christian Malay and applicant two is a Christian Nigerian from the Ibo ethnic tribe. I accept that applicants one and two are married and continue to live in an ongoing and genuine relationship. Applicants three and four are the children of applicants one and two and are therefore of mixed Malay-Nigerian ethnicity.
I accept that applicant one suffers from depression, which is managed through medication. I further accept that isolation from her children and husband represents an extreme risk to her mental health.
I do not accept that the applicants have been threatened or harmed by [the first applicant’s] family, gangsters or the community on the basis of entering into a mixed-race relationship for the following reasons:
·In her statutory declaration from 11 October 2019, [the first applicant] outlined that ‘Before we got married, I got my blessing from my parents. They seemed to really like my man so much at the time.’ Conversely, at the most recent hearing, [the second applicant] gave evidence that when [the first applicant] spoke with her family about their relationship, they told her that she could marry a black man over their dead body.
·[The first applicant] told the first Tribunal that she was pushed by her sister in [Town 1] whilst visiting family. She stayed in hospital in [Town 1] before she travelled back to Kuala Lumpur. At the most recent hearing, [the first applicant] gave evidence that the incident happened at her Aunty’s house in Kuala Lumpur and she was taken to [a hospital in Kuala Lumpur].
·Submissions to the first Tribunal outlined that [the first applicant] did not need to change her workplace as [the second applicant] was the target of the gangsters. However, she also gave evidence in the most recent hearing that the head of her community in Sabah threatened to kill her and gangsters waited out the front of her work and yelled at her.
·[The second applicant] originally gave evidence as to what was yelled at him by gangsters that attacked his car ([details deleted]), and later gave evidence that he did not understand what they said, other than the [first applicant’s first name] because he doesn’t speak Malay. The photograph of the smashed car window did not show the number plate or provide any detail linking it to gangsters.
·[The first applicant] gave evidence at the hearing that she came to Australia to check if it was safe for her family. This motivation for visiting Australia appears at odds with the justification provided for why the applicants do not have any documentary evidence of the threats made against them. [The second applicant], for example, stated that if he had known he was going to claim protection he would have kept records.

In addition to the above concerns, I note that [the second applicant] and his son remained in Malaysia for nine months after [the first applicant’s] departure and six months after the alleged attack on his car by gangsters. This is not indicative behaviour of someone who fears for their safety and the safety of their child. Further, there is nothing before me to indicate that [the first applicant’s] family are actively searching for her or her family since she departed Malaysia six years ago.
General claims have been made by both applicants one and two about racism and prejudice directed towards Christians and black people in Malaysia. I accept that there is some societal discrimination towards non-Islamic and non-ethnic Malays in Malaysia. However, I note that both applicants one and two were able to work and live in Malaysia over a number of years. And given my previous finding that there were not threatened with violence or death by [the first applicant’s] family, gangsters or the community, they were able to live a relatively peaceful existence. I do not accept that the societal discrimination would amount to persecution.
I accept that [the first applicant’s] mental health may be adversely affected as a result of separation from her family. Nevertheless, this cannot amount to persecution in the context of the refugee criteria. Persecution must involve systemic and discriminatory conduct. In these circumstances there is no deliberate or discriminatory behaviour on the part of Malaysia or any individual within it.
Furthermore, I note that [the first applicant] would not suffer the claimed harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. The separation from her husband and children is a situation specific to her individual circumstances.
For the reasons given above, I am not satisfied that applicant one is a person in respect of whom Australia has protection obligations under s.36(2)(a). A finding in respect of Australia’s protection obligations relating to applicant three, who is also a Malaysian national will be made below.
Nigeria
On the available evidence, I accept that [the second applicant] is a Nigerian Christian man from the Igbo ethnic tribe. I accept that he is married to [the first applicant], a Malaysian Christian woman, and father to their children.
As an Igbo Christian Nigerian, I find that [the second applicant] is at no greater risk of sectarian violence or kidnapping than the general population Nigeria. In particular, I note that Christians constitute the majority of the population in the Southern states.
While [the second applicant] may have ties to the Northern parts of Nigeria, it would also be open to him to return to the South, where he lived for 13 years prior to his move to Malaysia.
I accept that Boko Haram violence has led to a number of deaths, kidnapping and the displacement of people within Nigeria. I further accept that [the second applicant’s] father was killed in a bomb blast caused by Boko Haram and his shop and home were destroyed. However, the Department of Foreign Affairs and Trade country report for Nigeria reports the following:
...there are no recent reports of Igbo specifically targeted due to their ethnicity. Past attacks have been opportunistic, isolated and infrequent. DFAT assesses the Igbo people do not face societal violence on a day-to-day basis in Nigeria.
I do not accept that [the second applicant’s] mother was poisoned as he was unable to provide any evidence as to the motivation, method or perpetrator.
For the reasons given above, I am not satisfied that applicant two is a person in respect of whom Australia has protection obligations under s.36(2)(a). A finding in respect of Australia’s protection obligations relating to applicants three and four, who are also Nigerian nationals will be made below.
Complementary protection
I accept that applicants three and four are children who hold Nigerian citizenship on the basis that their father is a Nigerian citizen. I further accept that they have been raised under the Christian faith and are of mixed Nigerian-Malaysian ethnicity.
For the following reasons, I find that there are substantial grounds for believing that the children face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Nigeria.
While all persons in Nigeria can be affected by crimes related to kidnapping, it appears that women, children, and middle to upper class nationals or non-nationals continue to be particularly susceptible. Politically-motivated kidnapping is generally concentrated in the northern areas of Nigeria, however kidnapping and hostage taking is now common in the southern part of the country for primarily economic reasons.[8] Recent news articles indicate that Chinese[9] and other foreign nationals[10] have been targeted in Nigeria.
[8] See, eg, ‘Socio-Economic Implication of Kidnapping and Hostage Taking in Southern Nigeria’, Journal of Law and Judicial System, 1, 01 January 2018, pp.51-59, and ‘Fresh Kidnappings of Chinese Nationals in Nigeria’, The Diplomat, 12 July 2019, accessed at workers kidnapped from Nigeria oil rig’, CNN, 23 April 2019, accessed at >
Prosecutions for kidnappings do occur in Nigeria, nevertheless state protection appears to be limited due to a lack of resources, underfunding and corruption within law enforcement. Furthermore, country information indicates that Nigerian authorities are under equipped to address the full scale of the country’s kidnapping problem, notwithstanding the sophistication of existing kidnapping syndicates.

100. The March 2018 Department of Foreign Affairs and Trade country report for Nigeria states that the Nigerian Police Force (NPF) ‘suffers from low capacity and insufficient training. In addition, the centrally controlled nature of the NPF ensures resources and changes in operating procedures are slow to reach all corners of the country’.
101. The UK Home Office recently reported that:
Although the NPF is one of the largest police forces in the world, the ratio of policy officers to citizens is below the UN-recommended number. The police’s effectiveness is undermined by a lack of suitable staff, funding, proper equipment and facilities, inadequate training, as well as poor pay and wide-spread corruption. Further, the NPF reportedly focuses its resources on protecting important persons, including politicians and wealthy individuals, rather than community policing…
In general the state has taken steps to establish and operate a criminal justice system that punishes attacks by non-state actors thus showing a reasonable willingness and ability to provide protection, albeit its effectiveness is undermined by a number of significant weaknesses.
However effective protection is not likely to be available in areas where there is armed or civil conflict, including some parts of north-east Nigeria, the Niger Delta and the Middle Belt. Further, women, LGB persons and non-indegenes may face discrimination which prevents them from being able to access effective protection.[11]
[11] Country Policy and Information Note, Nigeria: Actors of protection, United Kingdom Home Office, Version 1.0, March 2019

102. On the basis of the information outlined above, I find that protection against kidnapping would not be available to applicants three and four from Nigerian state, such that there would be no real risk. The children would be viewed as non-indegenes and would not fall within the general understanding of ‘important persons’ as outlined in the UK Home Office report.
103. I accept that the risk to the applicant children is greater than the risk to the general Nigerian population on the basis of their fair complexion, accents and age. To many Nigerians, the children will appear as foreign nationals despite their Nigerian citizenship due to their appearance and accents. This places them at risk of being viewed as the children of wealthy business-people or foreign workers, and therefore at risk of being kidnapped to seek ransom.
104. Although applicants three and four would return to Nigeria with their Nigerian father, it would be difficult for him to provide ongoing protection against the risk of kidnapping. The children would be expected to attend school and the father to attend work in order to provide for the family.
105. In these circumstances, I find that there is a real chance that the children would be targeted for kidnapping by criminals seeking to recover a ransom. I further find that this risk extends to all areas of Nigeria and it would not be possible to relocate to a safe region.
106. The types of harm that will amount to ‘significant harm’ are exhaustively defined in ss.36(2A) and 5(1) of the Act. Although each form of harm has a discrete identity, there may be some overlap between the different types of significant harm such that some forms of ill-treatment may fall within more than one of these definitions. I consider that kidnapping of children would constitute cruel or inhuman treatment or punishment and in some circumstances may lead to the arbitrary deprivation of life.
Protection of a third country
107. Both s.36(2)(a) and s.36(2)(aa) refer to persons in respect of whom Australia has protection obligations. Section 36(3) of the Act qualifies these criteria, by providing that 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.
108. On the available evidence, applicant three is entitled to enter and reside in Malaysia. As such, s.36(3) applies and he is not a person in respect of whom Australia has protection obligations in his own right.
109. I have also considered whether applicants three and four have the right to reside in another country within the Economic Community of West Africa (ECOWAS). There are 15 member states of ECOWAS: Benin, Burkina Faso, Cape Verde, Cote d'Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.
110. In May 1979 the member states of ECOWAS signed 'Protocol A/P.1/5/79 Relating To Free Movement Of Persons, Residence And Establishment' that formed the foundation for further steps to provide freedom of movement and residence within member states. Since the signing of this protocol, ECOWAS has gradually implemented a number of related (and supplementary) protocols over three phases that have outlined the legal requirements of member nations.
111. In theory the ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region. The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.
112. I note that although the ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, evidence also suggests that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment and extortion on the part of member states.
113. Reports also indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws.
114. A UNHCR report[12] provides the following information on the implementation of the ECOWAS treaty and protocols in practice:
[12] UN High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, accessed at the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments.
National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes”.

115. The UNHCR report continues:
At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds”….. The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.

116. Applicant three has a valid Malaysian passport and no Nigerian passport. On the application form adding applicant four to the protection application, no details were provided for a passport. Departmental records confirm that he has not traveled from Australia since his birth in 2014. I note that Article 3 of the Protocol Relating to Free Movement of Persons makes it a requirement of entry to any ECOWAS state that the applicant possess a valid travel document and international health certificate. I find that without a current Nigerian passport the applicants do not have the right to enter or reside in any other ECOWAS country.
117. I am satisfied that applicant four does not have a right to temporarily or permanently enter and reside in any country, other than Nigeria and that s.36(3) does not apply in the applicant's case.
118. For the reasons given above I am satisfied that the fourth named applicant is a person in respect of whom Australia has protection obligations. Therefore the fourth named applicant satisfies the criterion set out in s.36(2)(aa).
119. I am not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, I am satisfied that they are the mother, father and sibling and therefore members of the same family unit as the fourth named applicant for the purposes of s.36(2)(c)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(c)(ii) and the remaining criteria for the visa are met.
DECISION
120. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the fourth named applicant satisfies s.36(2)(aa) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Sheridan Lee
Member

[2019] AATA 6484

12 August 2019

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