1729652 (Refugee) - [2019] AATA 6484

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1729652 (Refugee)

Details

AGLC: 1729652 (Refugee) [2019] AATA 6484
Case: [2019] AATA 6484
Decision Date: 12 August 2019

CaseChat Overview and Summary

The applicants, a couple and their two children, sought protection visas. They claimed fear of harm in Malaysia due to a mixed-race marriage and societal discrimination, and in Nigeria from Boko Haram due to their Christian faith, as well as a risk of kidnapping for the children due to their fair skin. The matter came before the Federal Circuit Court following a decision by the Refugee Review Tribunal.

The court was required to determine whether the applicants met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically whether Australia had protection obligations towards them under the Refugee Convention or complementary protection grounds. This involved assessing the well-foundedness of their fears of persecution or significant harm in their respective countries of origin and considering whether they had access to protection in third countries.

The court found that while the parents did not meet the criteria for protection in their own right, the fourth applicant, a child, faced a real risk of significant harm due to kidnapping in Nigeria. This risk was heightened by the child's appearance and accent, which would make them appear as a target for ransom. The court also considered the ECOWAS protocols regarding free movement but concluded that practical limitations and the lack of a valid Nigerian passport for the child meant that no other ECOWAS country offered a viable alternative for protection. Consequently, the court determined that Australia had protection obligations towards the fourth applicant under the complementary protection criterion.

The Tribunal remitted the matter for reconsideration with directions that the fourth applicant satisfied section 36(2)(aa) of the Migration Act, and that the other applicants satisfied section 36(2)(c)(i) as members of the same family unit as the fourth applicant. This meant that the parents' eligibility for a protection visa would depend on the outcome of the fourth applicant's application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 2019102. 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 country107. 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.DECISION120. 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 LeeMember

Ratio Decidendi

Legal Principle Established

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