1824029 (Refugee) [2022] AATA 5053 (14 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1824029
COUNTRY OF REFERENCE: Nigeria
MEMBERS:Dr Colin Huntly (Presiding) Peter Katsambanis
DATE:14 November 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 November 2022 at 09:46am
Statement made on 14 November 2022 at 9:46am
CATCHWORDS REFUGEE – protection visa – Nigeria – imputed political opinion – Biafran separatist – religion – Christian – race – Igbo ethnicity – fear of harm by Boko Haram – travel history – vague and inconsistent evidence – credibility issues – decision under review affirmed
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…
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 1824029 (Refugee)
Sign in free to access the full text
Details
AGLC
1824029 (Refugee) [2022] AATA 5053
Case
[2022] AATA 5053
Decision Date
CaseChat Overview and Summary
The applicant sought a protection visa, claiming a well-founded fear of harm in Nigeria due to his Igbo ethnicity, Christian religion, and perceived support for Biafran separatism, fearing persecution by Boko Haram and the Nigerian military. The dispute concerned whether the applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth). The matter was heard by the Tribunal, comprising Dr Colin Huntly (Presiding) and Peter Katsambanis.
The Tribunal was required to determine if the applicant had a cognisable, well-founded fear of harm in Nigeria, either currently or in the reasonably foreseeable future, that would engage Australia's international protection obligations under section 36 of the Act. This involved assessing the applicant's claims against the statutory criteria, including the definition of a refugee and the concept of significant harm, as well as considering the applicant's travel history and the credibility of his evidence. The Tribunal also had regard to its obligations under sections 104 and 423A of the Act concerning the correctness of information provided by applicants and the drawing of adverse inferences from unexplained omissions.
The Tribunal affirmed the decision not to grant the protection visa. It found that the applicant did not satisfy the criteria under section 36(2) of the Act. This conclusion was reached after considering the applicant's original claims, which were found to contain vague and inconsistent evidence, raising credibility issues. The Tribunal noted the applicant's declarations regarding assistance in completing his application, his travel history, and his reasons for leaving Nigeria, including alleged psychological harm and trauma due to tribal and political conflict, and the inability to access protection from Nigerian authorities. The Tribunal also considered the possibility of relocation within Nigeria or to a third country, as well as the complementary protection criterion under section 36(2)(aa). Ultimately, the Tribunal concluded that the applicant had not demonstrated a well-founded fear of persecution or significant harm that would engage Australia's protection obligations.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Two obligations here are particularly relevant. First, the ongoing requirement under s 104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity. And secondly, pursuant to s 423A of the Act, the Tribunal must draw an inference unfavourable to the credibility of a claim or evidence if it is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.CONSIDERATION OF Claims and evidence The issue in this case is whether the applicant has a cognisable well-founded fear of harm in Nigeria now or in the reasonably foreseeable future from any person, for any reason such as would give rise to Australia’s international protection obligations as provided at s 36 of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.ClaimsOriginal claims In his original online application for protection dated 11 October 2017, the applicant declared that he had received no assistance in completing his application form. He separately affirmed that he had provided complete and correct information in his application form. Asked in the online application form if he had travelled to any country other than Australia in the last 30 years, the applicant declared that he had travelled as a tourist to [Country 1 [during] May 2015. In his online application form, the applicant stated that he left Nigeria to study, and that he had experienced psychological harm and emotional trauma in that country before departing for Australia. He stated that he was unable to access protection from Nigerian authorities in response to this harm because of “Tribal and Political reasons (Power tussle between Christians and Muslims).” The applicant further stated that relocation to a safe part of Nigeria or another country was not open to him because; “the Military has a base [near] my hometown now.” He also stated that he has no family in Nigeria. The applicant also stated that he was unable to relocate within Nigeria or another country, in part, because he spoke English and not French. Finally, the applicant stated that “There is a continuous fight between Christians and Muslims, which is Biafra War.” The applicant was subsequently interviewed by a delegate of the Minister on 16 August 2018. Following this interview, as noted above, the delegate refused the applicant’s application for protection in a written decision dated 17 August 2018. In this written decision, the delegate summarised the applicant’s protection claims as follows:· The applicant (aged [age]) is considered a minor in his country of Nigeria.· The applicant considers that Nigeria has serious safety issues.· The applicant states that he has been unable to contact his family in Nigeria since September 2017 (one month previous to lodgement of the protection visa application).· The applicant fears for his life if he returns because he has no job there, no money, no place to live and no family to support him.· The applicant suffered psychological harm because of tribal and political conflict in his [home town] in Aba State, Nigeria.· The applicant believes he will be targeted by the military for harm if he returns because there is continuous conflict between Christians and Biafrans which puts residents in danger.
Decision
Reasons for decision
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. For this reason we find that the applicant does not satisfy the criteria in s 36(2).decision The Tribunal affirms the decision not to grant the applicant a protection visa.Dr Colin HuntlyMemberPeter KatsambanisMemberAttachment - Extract from Migration Act 19585 (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.…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.…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.…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 familyFor 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 familyFor 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.…36 Protection visas – criteria provided for by this Act…(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.…
Ratio Decidendi
Legal Principle Established
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 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’;[1] 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.’[2][1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975, s 33(1)(b)).[2]At [8.1].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.[3][3]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.