1824029 (Refugee)
[2022] AATA 5053
•14 November 2022
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 KatsambanisDATE: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 affirmedLEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 101, 104, 105, 423A, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
BBK15 v MIBP [2016] FCA 680
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v MI [2020] FCCA 2142
Emiantor v MIMA (1998) 98 ALD 635
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 1788
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Lay Lat (2006) 151 FCR 214
MIMIA v VFAY [2003] FCAFC 191
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SDAQ v MIMIA (2003) 129 FCR 137
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZBEL v MIMIA (2006) 228 CLR 152
SZLGP v MIC [2008] FCA 1198
SZQNO v MIAC [2012] FCA 326
SZRTC v MIBP (2014) 224 FCR 570
SZSHV v MIBP [2014] FCA 253
SZTAL v Minister for Immigration [2016] FCAFC 69
WAGH v MIMIA (2003) 131 FCR 269
WAKK v MIMIA [2005] FCAFC 225Any 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 Home Affairs on 17 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Nigeria, applied for the visa on 11 October 2017. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person to whom Australia owed protection obligations pursuant to either
s 36(2)(a) of the Act (the refugee criterion) or s 36(2)(aa) of the Act (the complementary protection criterion). Although not ultimately a dispositive issue, the Delegate also found that the applicant does not have a right to enter and reside in a third country for the purposes of s 36(3).
The applicant appeared before the Tribunal on 3 June 2022 to give evidence and present arguments. Following the hearing, on 13 June 2022, the Tribunal wrote to the applicant pursuant to s 424AA of the Act and put to him the particulars of certain adverse information and also to seek further information in response to a number of additional written questions. The applicant responded to the Tribunal’s letter of 13 June 2022 in writing by email lodged on 17 June 2022.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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.
It is of some utility here to extract the legislative history of s 36(3) provided in that case by Tracey and Griffiths JJ:[4]
[4]At [15]–[19].
Section 36 of the Act relevantly provided that:
“(1)There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol;
...
(3)Australia is taken not to have protection obligations to 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.
(4)However, subsection (3) does not apply in relation to a country in respect of which:
(a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5)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.
(5A)Also, subsection (3) does not apply in relation to a country if:
(a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”
16.Subsections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth). Subsection (5A) was included by the Migration Amendment (Complementary Protection) Act2011 (Cth).
17.The Supplementary Explanatory Memorandum for the Bill which became the 1999 Act established that a purpose of the amendments then introduced (of which ss.(3)(5) form part) was to counter forum-shopping by refugees who could find protection in countries other than Australia. Paragraph 5 of the Memorandum said that:
“The purpose of proposed subsections 36(3), (4) and (5) is to ensure that a protection visa applicant will not be considered to be lacking the protection of another country if without valid reason, based on a well-founded fear of persecution, he or she has not taken all possible steps to access that protection.”
18.The Minister’s Second Reading Speech contained the following passages:
“The Refugees Convention and Protocol have, from inception, been intended to provide asylum to refugees with no other country to turn to.
Increasingly, however, it has been observed that asylum seekers are taking advantage of the convention’s arrangements.
Some refugee claimants may be nationals of more than one country, or have rights of return or entry to another country, where they would be protected against persecution.
Such people attempt to use the refugee process as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere.
This practice, widely referred to as ‘forum shopping’, represents an increasing problem faced by Australia and other countries viewed as desirable migration destinations.”
19.Paragraph 99 of the Explanatory Memorandum for the Bill which became the 2011 Act explained that:
The purpose of new subsection 36(5A) is to ensure that subsection 36(3) does not operate in relation to a person who could have sought effective protection in another country apart from Australia if the non-citizen has a well-founded fear that that country will return the non-citizen to a different country and the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to that different country.
Helpfully, their Honours also summarise the correct approach to be adopted by decision-makers in relation to an application for protection in the following passage:[5]
The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s.36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s.36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s.36(3) applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s.36(3) and keep the “gateway” open.
[5]At [25].
It is apparent from the judgement in SZRTC v MIBP that the actual question before the Court concerned whether or not the applicants in question possessed a ‘right to enter and reside’. It is further evident that the question before the Court in this instance arose in the context of international agreements between nation states and not the status of a visa which had been applied for and granted. The following passage demonstrates the particular issue before the Court:[6]
By s 36(3) Australia is deemed not to have protection obligations to 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” any third country. The relevant question posed by the subsection is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU[2013] FCAFC 91, (2013) 215 FCR 35) to “reside .... temporarily” in the third country. There is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word “temporarily”. That, however, is a tension which must be resolved on the facts in each case. It is not a warrant for extending the meaning of “temporarily” such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin.
[6]At [27].
Given the limitations at ss 36(4), (5) and (5A) of the Act, in order to be satisfied about the applicability of the exclusion at s 36(3) of the Act, a decision-maker must conduct some preliminary inquiry into an applicant’s claims for protection, and if where relevant, consider the situation that might face such an applicant in both the receiving country and any potential third country that suggests itself as being available for entry and residence in the relevant sense.
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of an applicant’s credibility. In this context, we have considered the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[7]In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[7]For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA& Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
As noted by Nichols J in the recent Federal Circuit Court decision in DAJ19 v MI:[8]
[8][2020] FCCA 2142 (5 August 2020), at [69]–[71].
69.There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80] [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).
70.The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):
“30.The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”
71.… the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]-[28]):
“41.For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”
In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[9]Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[10]Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[9](1996) 40 ALD 445.
[10]At 482.
Regard has also been had to the decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[11] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[12]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.
[11](1996) 185 CLR 259.
[12]At [25].
The Tribunal is not required to accept uncritically any, or all, allegations made by an applicant. Nor are decision-makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:[13]
where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.
[13][1997] FCA 1198 at (11).
Nevertheless, as Burchett J counselled,[14] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[14]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[15]
[15]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[16]Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[17]
[16]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.
[17]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
In addition, if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[18] This is sometimes referred to as the ‘what if I am wrong?’ consideration. We are also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[19]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[18]MIMA v Rajalingam (1999) 93 FCR 220.
[19](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. In this respect, in Iyer[20] the Tribunal there had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned), supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.
[20]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[21] While such a principle cannot be relied upon as an iron rule, it is potentially a useful illustration of the kind of weighing process that an objective decision-maker must make when making findings relevant to the existence of a well-founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
[21]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
In this respect the comments of Flick J,[22] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) are instructive, as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[22]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[23]
Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a)failure to afford procedural fairness;
(b)reaching a finding without any logical or probative basis;
(c)unreasonableness; and/or
(d)jurisdictional error as discussed by Flick J in SZVAP.
[23]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, later in the same judgement,[24] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9th Circuit Court of Appeals decision in Stoyanov v INS[25] (Stoyanov):
The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’.
[24]CQG15 v MIBP [2016] FCAFC 146 at [43].
[25](9th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.
A number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[26]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[26]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, provide that:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[27]
[27]At [8].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[28]
[28]At [17]–[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[29]
[29]At [27]–[28].
New claims and evidence
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim, or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[30] Applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.
[30]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
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.
Claims
Original 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.
Of relevance, the delegate accepted the applicant’s assertion that he was a Christian of the Anglican doctrinal tradition, and an ethnic Igbo person.
Claims before the Tribunal
Prior to the hearing, on 20 May 2022 the Tribunal received a hearing response from the applicant in which he self-reported “PTSD and High Blood Pressure”. This hearing response also included a copy of a previously submitted letter dated 6 December 2018 from [a Registered Psychologist]. That letter indicated that the applicant had completed one therapeutic counselling session in response to a GP Mental Health Care Plan referral. Following that initial counselling session, the applicant had been diverted to a “Alive Suicide Prevention Program” and completed two sessions of a prospective three-month program. The letter refers to the applicant having “symptoms of Post Traumatic Stress Disorder”.
The applicant also submitted a statement headed “Reasons to Refuse Protection Visa”, which the Tribunal takes to be an engagement by the applicant with the delegate’s written findings in the a written decision record dated 17 August 2018 referred to above. The Tribunal stands in the shoes of the original decisionmaker and is not, in any meaningful sense, a forum of appeal from the decision of the delegate. Relevantly, we note that the applicant asserted in this submission that, as a Christian of Igbo ethnicity, he would be imputed with Biafran separatist political opinions by the Nigerian State and its agents. The applicant also appears to equate such imputed political opinion with a well-founded fear of serious harm for the purposes of the refugee criterion and significant harm for the purposes of the complementary protection criteria.
In the 20 May 2022 written submission, the applicant repeated his claim to be without a family network of support in Nigeria and that he had been “medically diagnosed with post-traumatic stress disorder”. Some reference is made to a fear of harm by the religiously motivated actors of harm known collectively in the region as “Boko Haram” because of his Christian religious beliefs.
The applicant also repeated his earlier claim to fear harm if returned to Nigeria due to “severe hardship”.
Hearing
At the hearing on 3 May 2022 we confirmed the foregoing claims and information with the applicant and asked if there was any information in the foregoing documents that needed to be changed. The applicant indicated that nothing needed to be changed.
We asked the applicant if there was anything to add to his claims for protection, and he stated that there was nothing to add. The applicant confirmed that he had not undertaken any clinical or therapeutic treatment since that outlined in the letter referred to above and that he was prescribed anti-depressant, anti-anxiety and blood pressure medication by his GP all of which the applicant tolerated well. The applicant reported that his sleep had become disturbed recently with the approach of the hearing date.
At the hearing, we took a personal history from the applicant. The applicant stated that his father, who died in 2014, had two traditional wives in Nigeria. The applicant’s mother, his father’s first wife, had lived in Aba and had three sons with her husband, the applicant being the youngest of these. The applicant stated that his eldest brother [Mr A], remained in Nigeria and had assisted the applicant to leave Nigeria in May 2017 to stay with [name] (the middle brother) in Perth, Western Australia while studying in this country. The applicant stated that his mother, who remained in Nigeria, last spoke to him by telephone in August 2017. The applicant could not identify the age differences between himself and his older brothers when questioned on this basic detail.
The applicant stated that his father’s second traditional wife had lived in [location]. That relationship had produced [number children] all of whom were older than the applicant. These step-relations had moved away from Aba some time before 2014 and the families retained no contact after the death of the applicant’s father. The applicant stated that he has been unable to contact his brother [Mr A] or his mother in Nigeria since September 2017.
After completing school, the applicant stated that he had worked as [an Occupation 1], a general construction worker in Nigeria and a [Product 1] vendor. He also referred to working as a freelance trader, including numerous day-trips into [Country 2] for this purpose over a period of years. We asked the applicant why he had obtained a passport in 2015. The applicant stated that he needed some formal identity documents so he could work in [Country 3]. The applicant stated that, before arriving in Australia, he had worked in [Country 3] for one or two years with the support of a friend or [cousin].
We asked the applicant if he had travelled anywhere else before arriving in Australia. He stated that he had not. We drew the applicant’s attention to the stamp in his passport which indicated that he had visited [Country 1] in 2015. At this point, the applicant stated that, although he had never travelled to [Country 1], his passport had been arranged for him by his brother [Mr A] and an agent. The applicant suggested that either or both of these individuals may have used the passport to allow someone else to travel to [Country 1] without the applicant’s knowledge or permission. We questioned the applicant on how he had travelled to [Country 3] from Nigeria. He stated that he had travelled by air from Lagos to [City 1, Country 3]. We asked the applicant how he managed to do this without having his passport stamped on leaving and entering Nigeria and [Country 3] in both directions. The applicant stated that he did not recall the details of this travel.
The applicant’s lack of clarity about the basic details of his immediate family of origin in terms of contact details, support witnesses and the approximate ages of his full siblings raised concerns in our minds about his basic truthfulness and credibility. The fact that the applicant’s passport contains no immigration stamps for his claimed international movements to [Country 2] or [Country 3] but contains details of a tourist visit that the applicant had no knowledge of during the hearing raised concerns about the authenticity of this travel document. The applicant had declared in his application for protection that he had travelled to [Country 1]. When he was asked on the first occasion at the start of the 3 June 2022 hearing if his application form needed to be amended, the applicant responded in the negative. This raised concerns that his later sworn evidence at the same hearing that he had never visited [Country 1] was directly inconsistent with his prior sworn statements.
After confirming with the applicant that he had personally completed his online application for protection on 11 October 2017, we proceeded to put our concerns about the foregoing credibility issues to the applicant directly in person at the end of the hearing on 3 June 2022. We indicated that the applicant was not required to respond to our concerns immediately, but that we would write to him after the hearing and explain our concerns and give him an opportunity to respond in writing at a later date. Before concluding, the applicant stated that we should be mindful that there is evidence to suggest that victims of trauma may experience poor memory during a hearing. We reminded the applicant that we were not asking for an immediate response from him precisely for this reason and that we would not form a concluded view until we had given him a proper opportunity to respond in writing.
Credibility concerns and the applicant’s response post-hearing
As noted above, after the hearing, on 3 June 2022, the Tribunal wrote to the applicant pursuant to s 424AA of the Act and put to him the particulars of certain adverse information and also to seek further information in response to a number of additional written questions.
The letter addressed to the applicant, dated 13 June 2022, was in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
Section 424AA of the Act, provides that we may give you clear particulars of any information that would be the reason, or a part of the reason, for affirming the decision of the delegate;
In such situations, we must ensure, as far as is reasonably practicable, that you can understand why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review. We draw your attention to s 101 of the Migration Act 1958 (Cth) (Act) which states as follows:
Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
a)all questions on it are answered; and
b)no incorrect answers are given or provided.
In assessing your online Application for a Protection visa (lodged on 11 October 2017), we note that you declared that you did not receive any assistance in the completion of the form. We also note that you have declared in this form that the information supplied is complete and correct and up-to-date in every detail. You were warned when completing this online form that “Giving false or misleading information is a serious offence.”
At the hearing on 3 June 2022, you were provided with a hardcopy of s 5AAA of the Act, which relevantly states:
Non-citizen's responsibility in relation to protection claims
1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
…
4) To remove doubt, the Minister does not have any responsibility or obligation to:
a)specify, or assist in specifying, any particulars of the non-citizen's claim; or
b)establish, or assist in establishing, the claim.
We also provided you with a hardcopy of s 104 of the Act, which relevantly states:
Changes in circumstances to be notified
1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
…
We draw your attention to s 105 of the Act, which states, at 105(1) as follows
Particulars of incorrect answers to be given
If a non-citizen becomes aware that:
a)an answer given or provided in his or her application form; or
b)an answer given in his or her passenger card; or
c)information given by him or her under section 104 about the form or card; or
d)a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
You claim to be the same [applicant name], born on [date] who is identified in a Nigerian passport No: [redacted], presented in connection with your visa application and again at your hearing on 3 June 2022, that was issued in Nigeria [in] 2015 and was valid until [2020].
The online protection visa application includes the question; “Has the applicant ever had or used, any lost or stolen passport or travel document? Include any lost or stolen travel document used to enter Australia.” You answered “No” in response to this question.
The online protection visa application includes the question; “Has the applicant ever applied to enter any country other than Australia.” You answered “No” in response to this question.
The online protection visa application includes the question; “Has the applicant travelled to any countries in the last 30 years.” (Eg: Work or study outside the usual country of residence; Holiday/leisure Trips; business; military deployment; visits back to own country; travel in transit to another country). You answered “No” in response to this question.
The online protection visa application includes the question; “Has the applicant ever applied to enter any country other than Australia.” You answered “No” in response to this question.
The online protection visa application includes the question; “Provide details of travel to any country other than Australia in the last 30 years.” Your response indicated that you travelled to [City 2] in [Country 1] between [date] May 2015 to [date] May 2015.
The online protection visa application includes the question; “Employment details.” You answered “Unemployed from 25 July 1991 to 11 September 2017” in response to this question. In response to the related question “Give details of how the applicant occupied their time and financially supported themselves during unemployment”, you responded “[Occupation 1] and [Occupation 2]; My brother in Australia supported me, while I did my training [related to Occupation 2].” [sic]
At the hearing on 3 June 2022 we pointed out to you that some of your evidence, when considered together with your online protection visa application form raised important questions relating to your application for review. Some of our questions are very specific and you are invited to respond to those questions.
At the hearing on 3 June 2022, you stated under oath that you had trained and worked in the building and construction industry before you arrived in Australia. You also gave evidence that you had travelled for work purposes to [Country 3] before 2013 and had lived there for approximately two years at the urging of a cousin or family friend who lived in [Country 3]. You stated that you had arrived and worked in [City 1] undertaking various cleaning jobs at this time. You also gave evidence that you had worked as a freelance trader during periods of your life in Nigeria, and that you had also travelled across the border to [Country 2] for this purpose on numerous occasions.
At the hearing on 3 June 2022, you stated that you had never been to [Country 1]. Your answer was to the effect that the visa and movement stamps on your passport were arranged between your older brother in Nigeria and a travel agent.
You also gave evidence at the hearing on 3 June 2022 that you had only ever had one passport; that you had no knowledge of owning any previous passport, including at the time during which you claim to have lived and worked in [Country 3].
At the hearing you were unable to provide us with the sufficient information at an appropriate level of detail to describe your family of origin or your relevant sibling relationships. This included details of the dates or years of birth or approximate ages of your two full brothers, including one which you claim to live with in Australia, and basic details including names and approximate ages of your half-brothers and half- sisters, who you claimed to have lived with on the same property for many years in Nigeria. While we acknowledge that you are claiming to experience anxiety and stress, there is insufficient medical evidence before us to explain why you would be unable to explain the basic facts of your life in a satisfactory way in response to straightforward and simple questions about those basic facts.
As a result of the foregoing, you are invited to respond to the following concerns:
1)Based on the evidence before us, we may find that you are not the person who is identified in Nigerian passport No: [redacted] bearing your name;
2)In the alternative, we may find that Nigerian passport No: [redacted] is not your passport or has been used by another person during the time in which it has been in your possession and control;
3)Based on the evidence before us we may find that you have applied for the protection visa under an assumed identity;
4)Based on the evidence before us we may find that you have travelled internationally before entering Australia under an assumed identity;
5)Based on the evidence before us we may find that you have provided false and misleading answers to the Department in your application for protection about basic facts of your life such as your family of origin, and other relevant personal history including your place(s) of residence and employment history;
6)The evidence above suggests that you have provided incorrect information or evidence in support of your protection visa application and have not corrected it at the first practicable opportunity.
This information is relevant to this review application because the information discussed above raises questions your identity and whether or not you can be regarded as a witness of truth about the basic facts of your life before arriving in Australia. This may lead us to find that your claims for protection are not true or are not genuinely held by you.
If the Tribunal finds that your claims are not genuinely held by you, then, on the current information before it, the Tribunal may find that you do not meet the criteria for grant of the protection visa and affirm the decision under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 27 June 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
On 17 June 2022, the applicant lodged an email submission, with attachments in response to the foregoing letter. This written response stated as follows:
1)Based on the evidence before us, we may find that you are not the person who is identified in Nigerian passport No: [redacted] bearing your name;
2)In the alternative, we may find that Nigerian passport No: [redacted] is not your passport or has been used by another person during the time in which it has been in your possession and control;
3)Based on the evidence before us we may find that you have applied for the protection visa under an assumed identity;
The identity on the Nigerian passport No: [redacted] is mine. For the Purpose of Identity verification, I have attached in this email, an affidavit from my brother and an Australia Driver license.
The Department of transports conduct 100points Check and the photograph on it was taken at one of their offices by the attending staff before issuing me with a Driver’s license.
Also, I am currently employed with [Employer 1] working [as an Occupation 2] and a 100points identity verification was conducted, including an Australia Federal Police clearance chek before resuming my role with the [employer]
Relevantly, the attached statutory declaration provided by one [Mr B] declares that the applicant is the declarant’s biological brother. The declarant affirms that the applicant is the person identified in the applicant’s passport. We place some weight on this evidence. The declarant states that he has been providing accommodation and support to the applicant. The declarant also makes other statements about which the declarant either has no personal knowledge (e.g. the applicant’s personal travel history and the whereabouts of the applicant’s family in Nigeria) or lacks the professional standing to express an expert opinion (the applicant’s physical and mental health status). While we note these other statements, we accord them little evidentiary weight.
The applicant’s response to Items 1–3 above, together with the statutory declaration of the applicant’s older brother satisfies us that he is the person identified in his Nigerian passport. Nevertheless, the applicant’s submissions do not address the issue raised at the hearing which gave rise to the questions, namely, the variance between the applicant’s physical passport entries and the applicant’s various inconsistent sworn statements about his international travel history. As will be discussed below, there remain significant outstanding questions about these inconsistent statements that have not been satisfactorily explained.
4)Based on the evidence before us we may find that you have travelled internationally before entering Australia under an assumed identity;
I have not travelled under an assumed identity. I have travelled with my E-Passport which was issued by the Nigerian Government.
Having accepted the attached statutory declaration of [Mr B] as some evidence of the applicant’s identity, for the purposes of this review, we are prepared to accept that the applicant may not have travelled to Australia under an assumed identity.
5)Based on the evidence before us we may find that you have provided false and misleading answers to the Department in your application for protection about basic facts of your life such as your family of origin, and other relevant personal history including your place(s) of residence and employment history;
I strongly believe that I have not given any misleading information based on cultural and geographical differences. As a Nigerian, discussing siblings age(s) was not a common practice. It was easier for the older siblings to know the age of the younger one(s) as they also contribute to their care in the family, than the younger ones knowing the age of their older siblings.
Also, culturally it was seen as disrespectful to investigate your older siblings’ items, be it their birth certificate, documents, or their personal belongings. I have grown into this cultural orientation that I do not know my sibling’s exact age.
Regarding employment history, I strongly believe that I have not given any misleading information based on vocabulary terminology used in different geographical environment.
The [Occupation 1 work] I did in Nigeria was assist, which is more of labour. It was a pathway to study building and construction in Australia were there is more standard. Labouring in Nigeria is seen as hustling not a proper employment in comparison to labouring in Australia.
Secondly, we do not have [Occupation 2] in the Nigerian career system, and the [Occupation 2] job I was referring in my application was here in Australia. I got a job with [employer] after my brother sponsored me to complete my [certificate three]. However, I could not start the employment, because my bridging Visa did not have work right then.
The cleaning job I did in [Country 3] was not employment, as I was just helping the family friend that invited me to [Country 3] because he paid for my travel expenses. [Country 3] visitors Visa does not have work right, and I was not allowed to be employed. It was not a paid employment.
In Nigeria I did hawking of [Product 1], also tried to sell used cloths on the street to survive, unfortunately, none worked out. This is not classified as an employment but a hustle for survival in my understanding.
During the hearing, the conversation on visiting [Country 1] was unclear as I couldn’t remember and had to flip through my passport to help me visually recall my travel history. I have post-traumatic stress disorder, anxiety, depression, and high blood pressure leading to memory issues amongst other things. Please see attached psychologist support letter dated 2018 and a recent doctor’s support letter regarding my health issues. I believe this will be sufficient medical evidence.
The applicant’s written response to Item 5 above, does not satisfactorily address our concerns about inconsistencies in his sworn evidence about the basic facts of his life. In addition, rather than lacking recall about his life in Nigeria, the applicant provided considerable detail in response to our questions about his personal history. We note that he had no difficulty in explaining the complexities of his family of origin in the context of a polygamous traditional marriage arrangement entered into between his father and that person’s two traditional wives and their combined [number] children. The applicant further provided granular detail about his employment, travel and migration history before arriving in Australia, and was most emphatic that he had never personally travelled to [Country 1].
We do not accept the applicant’s later written statement that such inconsistencies are adequately explained by reference to geography, or culture or symptoms of PTSD. There remains an unexplained inconsistency in the applicant’s evidence about the use of his passport for travel by someone to [Country 1] in May 2015 and his failure to declare his extended residence in [Country 3] and frequent cross-border trips to countries neighbouring Nigeria such as [Country 2]. As at the date of this decision, these inconsistencies and incorrect information provision have not been adequately explained by the applicant. This lack of clarity about the basic facts of the applicant’s life prior to arriving in Australia despite having had them put directly to the applicant raises questions about the basic truthfulness and credibility of the applicant. This, in turn, causes us to question the applicant’s core claims for protection.
6)The evidence above suggests that you have provided incorrect information or evidence in support of your protection visa application and have not corrected it at the first practicable opportunity.
Unfortunately, I have been diagnosed with an illness I would not wish on myself, nor have control over. However, I am trying to get all the help that I can to be able to live a normal life. Part of it is memory lose which was previously in 2018 stated by my psychologist in the letter sent to your department. However, I have attached a recent letter from my doctor explaining briefly on my diagnosis.
I have attached in this email the letter sent in 2018 by my psychologist, I have also, highlighted my symptoms as listed in that letter.
The below concern.
The online protection visa application includes the question; “Has the applicant travelled to any countries in the last 30 years.” (Eg: Work or study outside the usual country of residence; Holiday/leisure Trips; business; military deployment; visits back to own country; travel in transit to another country). You answered “No” in response to this question.
In response to the above question, my answer was “Yes” and, I did declare the travels.
Please find the attached screenshot of my Immi account application history. I am concerned that I may be accused of providing misleading information, while it is untrue as per the attachment attached screenshot from my Immi account.
In conclusion, I genuinely believe that I have not provided any information with the intention to mislead the department during my application. I am human and some questions might have not been understood properly, as English is not my first language.
While it is acknowledged that the applicant’s responses in his online application for protection were misstated in one important respect, we note that this observation was made in the letter of 13 June 2022 in a wider context, as follows:
The online protection visa application includes the question; “Has the applicant ever applied to enter any country other than Australia.” You answered “No” in response to this question.
The online protection visa application includes the question; “Has the applicant travelled to any countries in the last 30 years.” (Eg: Work or study outside the usual country of residence; Holiday/leisure Trips; business; military deployment; visits back to own country; travel in transit to another country). You answered “No” in response to this question.
The online protection visa application includes the question; “Has the applicant ever applied to enter any country other than Australia.” You answered “No” in response to this question.
The online protection visa application includes the question; “Provide details of travel to any country other than Australia in the last 30 years.” Your response indicated that you travelled to [City 2] in [Country 1] between [date] May 2015 to [date] May 2015.
The online protection visa application includes the question; “Employment details.” You answered “Unemployed from 25 July 1991 to 11 September 2017” in response to this question. In response to the related question “Give details of how the applicant occupied their time and financially supported themselves during unemployment”, you responded “[Occupation 1] and [Occupation 2]; My brother in Australia supported me, while I did my training [related to Occupation 2].” [sic]
At the hearing on 3 June 2022 we pointed out to you that some of your evidence, when considered together with your online protection visa application form raised important questions relating to your application for review. Some of our questions are very specific and you are invited to respond to those questions.
At the hearing on 3 June 2022, you stated under oath that you had trained and worked in the building and construction industry before you arrived in Australia. You also gave evidence that you had travelled for work purposes to [Country 3] before 2013 and had lived there for approximately two years at the urging of a cousin or family friend who lived in [Country 3]. You stated that you had arrived and worked in [City 1] undertaking various cleaning jobs at this time. You also gave evidence that you had worked as a freelance trader during periods of your life in Nigeria, and that you had also travelled across the border to [Country 2] for this purpose on numerous occasions.
At the hearing on 3 June 2022, you stated that you had never been to [Country 1]. Your answer was to the effect that the visa and movement stamps on your passport were arranged between your older brother in Nigeria and a travel agent.
You also gave evidence at the hearing on 3 June 2022 that you had only ever had one passport; that you had no knowledge of owning any previous passport, including at the time during which you claim to have lived and worked in [Country 3].
As indicated above, it is not possible to square the applicant’s inconsistent sworn statements about his work and travel history. Either he travelled to [Country 1], or he did not. Either he lived in [Country 3] for an extended period, or he did not. Either he worked in [Country 3], or he did not. Either he travelled across the Nigerian land border to other countries frequently over a period of years, or he did not. These are basic facts of the applicant’s life which are not directly or indirectly relevant to the regional sectarian conflicts that he has taken such care to document in his written submissions. The applicant’s evidence in relation to these basic facts of his life are unaccountably inconsistent and lacking in credibility.
Accordingly, we find that the applicant is not a witness of truth. Further, we find that the applicant’s claims for protection in Australia are not genuinely subjectively held by him. We note that, if the Tribunal makes findings that an applicant’s refugee-based claims for protection are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant had a genuinely subjective fear of harm.[31] Judicial authority provides that, in such cases, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims.[32]
[31]Emiantor v MIMA (1998) 98 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear.
[32]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim. On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case.
For completeness, we note that economic conditions of general application in a receiving country do not, in the absence of other considerations, constitute either an act motivated by or with the requisite nexus between one of the refugee criteria, or an intentional act or omission for the purposes of complementary protection provisions.[33] We also note that, even where an applicant may have a particular vulnerability such as a propensity to depression, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[34]
[33]SZTAL v Minister for Immigration [2016] FCAFC 69.
[34]MIMIA v VFAY [2003] FCAFC 191 at [60].
It is accepted that mental health challenges, or organic cardio-vascular disease experienced by an individual may result in an increasing reliance on the health system by any individual in any country, including for the applicant in either Australia or Nigeria. However, for the purposes of a protection visa, the central question before the Tribunal is whether such a claim reasonably gives rise to Australia’s protection obligations at s 36 of the Act. Nothing before the Tribunal suggests that the applicant’s health care needs give rise to a reasonable apprehension of harm in any form now, or in the reasonably foreseeable future from any person for any reason.
To the extent that such concerns could reasonably be interpreted to give rise to an articulable claim for protection, they do not raise any matter with a connection to the refugee criterion in s 5J(1)(a) of the Act. Accordingly, the applicant does not engage Australia’s protection obligations at s 36(2)(a) for the essential or significant reason of either economic circumstances generally in Nigeria, or the increased health challenges associated with mental health challenges, or organic cardiovascular disease of the type referred to above.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
For relevant purposes, the condition of the health system in Nigeria is of general application to that country and lacks the degree of particularity required to give rise to protection obligations under either the refugee[35] or complementary protection[36] provisions of the Act. Accordingly, in the absence of additional considerations, this does not amount to an intentional act or omission for the purposes of complementary protection provisions.[37]
[35]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [99] per McHugh J.
[36]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].
[37]SZTAL v Minister for Immigration [2016] FCAFC 69.
We note that the applicant has made claims in relation to health issues including symptoms of post traumatic stress disorder and organic cardiovascular disease. While there is some evidence consistent with these claims from a registered psychologist, this evidence is partial and does not contain a definitive diagnosis of post traumatic stress disorder. The same source highlights that the applicant completed a single therapeutic counselling session with a clinical psychologist and two sessions of a prospective three month suicide prevention program in 2018, does not indicate that the applicant is undergoing any ongoing treatment for any mental health issues and, while the applicant has been prescribed medication for blood pressure and anti-depressants, there is no evidence to suggest that he would be unable to access equivalent pharmacological treatment on return to Nigeria.
Having considered the claims for protection made by the applicant by reference to the alternative complementary protection criterion at s 36(2)(aa) of the Act and noting that the real risk test applies the same threshold as the real chance test, we are not satisfied that there is a real risk that, if the applicant was returned to Nigeria that the applicant would experience significant harm from any person for any reason now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 Huntly
MemberPeter Katsambanis
MemberAttachment - Extract from Migration Act 1958
5 (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 family
For 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 family
For 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.
…
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