1729652 (Refugee)

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.