1809793 (Refugee)

This matter concerns an application for review of a delegate of the Minister for Home Affairs' decision to refuse to grant the applicant, a Nigerian citizen, a protection visa. The applicant arrived in Australia in August 2016 on a student visa and has remained in Australia on a bridging visa pending the outcome of his review application. The applicant's claims for protection stem from his involvement in an online scam while in Australia, which he alleges has led to his identity being stolen and threats of death from criminals who claim they can trace him anywhere in the world.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). Specifically, the court was required to determine if the applicant was a refugee under section 36(2)(a) due to a well-founded fear of persecution, or if he qualified for complementary protection under section 36(2)(aa) based on a real risk of suffering significant harm as a necessary and foreseeable consequence of removal from Australia. The court also considered whether the applicant was excluded from Australia's protection obligations under section 36(3).

The court applied the principles outlined in sections 5H and 5J of the Migration Act regarding the definition of a refugee and the assessment of a well-founded fear of persecution, as well as the criteria for complementary protection under section 36(2)(aa). The court noted that the onus is on the applicant to satisfy the Tribunal that the statutory elements are made out, and that mere claims of fear do not establish a well-founded fear or a real risk of significant harm. The court considered various documents, including the applicant's visa application, personal statements, correspondence with ACORN, bank statements, and country information reports from the Department of Foreign Affairs and Trade. The applicant also gave oral evidence to the Tribunal.

The Tribunal remitted the decision under review.