1908684 (Refugee) [2021] AATA 3668 (19 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1908684
COUNTRY OF REFERENCE: Nigeria
MEMBER:David McCulloch
DATE:19 July 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).
Statement made on 19 July 2021 at 11:38am
CATCHWORDS
REFUGEE – protection visa – Nigeria – political opinion – Biafran separatists – Movement for the Actualisation of Sovereign State of Biafra (MASSOB) – extrajudicial killings – repression of political protests – delay in applying for protection – third country protection – Economic Community of West African States (ECOWAS) entry and residence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MIMAC v SZRHU [2013] FCAFC 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Suntharajah v MIMA [2001] FCA 1391
V856/00A v MIMA (2001) 114 FCR 408
WAGH v MIMIA (2003) 131 FCR 269
Yao-Jing Li v MIMA (1997) 74 FCR 275Any 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 4 April 2019 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 6 August 2018. The delegate refused to grant the visa.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal in this manner on 13 July 2021 at 9.30pm. Although there was present at the hearing an interpreter in the Igbo and English languages, the applicant elected to communicate in English. The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out…
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CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to be a member of the Movement for the Actualisation of Sovereign State of Biafra (MASSOB) and feared persecution in Nigeria due to his political opinion. The applicant had arrived in Australia on a student visa in 2016 and subsequently applied for a protection visa in 2018 after withdrawing a partner visa application. The Department of Home Affairs refused the protection visa, leading to the applicant's review application before the Tribunal.
The primary legal issues before the Tribunal were the credibility of the applicant's claims and whether, on the accepted claims, the criteria for a protection visa were fulfilled. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of political opinion, as defined by the Migration Act 1958 (Cth), and whether Australia had protection obligations towards him. The Tribunal also considered whether any exclusion clauses, specifically relating to third-country protection under section 36(3) of the Act, applied to the applicant's case.
The Tribunal noted that the applicant claimed to have been a member of MASSOB since 2005 and alleged that Nigerian authorities had shot at a joint rally of MASSOB and IPOB in August 2015, resulting in deaths and arrests. The applicant also stated he had been beaten on several occasions without arrest and that his life would be in danger if returned to Nigeria. The Tribunal examined the provisions of the ECOWAS Treaty and protocols concerning freedom of movement and residence within member states, as well as country information regarding their practical implementation. Ultimately, the Tribunal was not satisfied that the applicant had an existing right to enter and reside in any ECOWAS country, finding that the ECOWAS protocols had not been fully implemented in practice and that national laws and administrative practices created barriers and uncertainties.
Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth). This indicates that the Tribunal found the applicant to be a refugee in respect of whom Australia has protection obligations.
The primary legal issues before the Tribunal were the credibility of the applicant's claims and whether, on the accepted claims, the criteria for a protection visa were fulfilled. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of political opinion, as defined by the Migration Act 1958 (Cth), and whether Australia had protection obligations towards him. The Tribunal also considered whether any exclusion clauses, specifically relating to third-country protection under section 36(3) of the Act, applied to the applicant's case.
The Tribunal noted that the applicant claimed to have been a member of MASSOB since 2005 and alleged that Nigerian authorities had shot at a joint rally of MASSOB and IPOB in August 2015, resulting in deaths and arrests. The applicant also stated he had been beaten on several occasions without arrest and that his life would be in danger if returned to Nigeria. The Tribunal examined the provisions of the ECOWAS Treaty and protocols concerning freedom of movement and residence within member states, as well as country information regarding their practical implementation. Ultimately, the Tribunal was not satisfied that the applicant had an existing right to enter and reside in any ECOWAS country, finding that the ECOWAS protocols had not been fully implemented in practice and that national laws and administrative practices created barriers and uncertainties.
Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth). This indicates that the Tribunal found the applicant to be a refugee in respect of whom Australia has protection obligations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020, a copy of which was provided to the applicant in advance of the hearing.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The applicant was granted a [Student] visa on 1 June 2016 and entered Australia [in] June 2016. The applicant applied for a Partner Combined (UK 820/BS 801) visa on 8 July 2017, which was withdrawn on 24 July 2018. The applicant applied for a Protection visa on 6 August 2018 which was refused by the Department on 4 April 2019. The applicant applied for a review of that decision on 9 April 2019. The following information is apparent from the application for protection forms. The applicant was born on [date] in [City 1], Anambra State, Nigeria. The applicant is a Christian and is of Igbo ethnicity. The applicant can speak Igbo, and can speak, read and write in English. The applicant has a father, mother, [and specified family members] who all reside in Nigeria; he is in contact with them via telephone ‘every fortnight or month’. The applicant has a de facto partner who resides in Australia. The applicant resided in [City 1], Anambra, Nigeria from [year of birth] until December 2015, he then moved to [a named town in] Lagos, Nigeria where he resided until June 2016, before coming to Australia. The applicant studied a [course] at [a named college] from 18 June 2016 until 1 May 2017. The applicant lists no employment in Nigeria. In Australia he worked from 1 May 2017 until ‘current’ as [an occupation] at [Employer 1]. The applicant has never travelled to any other countries, nor left Australia since arrival. The applicant was sentenced to [a term of] imprisonment for the charge of ‘recklessly giving other foreign travel document issued to self’ [in] July 2017, and was released from custody [in] February 2018 on account of time served in pre-sentence custody. The applicant provided a statutory declaration setting out his claims for protection as follows (not corrected for spelling or grammar):PROTECTION STATEMENTMy name is [applicant name]. I am from [City 1] in Anambra State of Nigeria.I am a member of Movement for the Actualisation of Sovereign State of Biafra (MASSOB). MASSOB has been in the forefront of the bid to bringing to reality the state of Biafra out of the present day Nigeria. This is remain a problem for the Nigerian government. However, having our members in Nigeria and this is known in every country worldwide. I have been a member of this group since 2005 and that is why I have been on the radar of the Nigerian authorities. Shortly before I left Nigeria for Australia, precisely in August 2015, there was a joint rally of MASSOB and IPOB in which the Nigerian authorities shot at us killing a lot of our members and many others in jail without trial. I have seen our members killed and I have on many occasion been beaten without any arrests. I had an agent that prepared the documents for me to come and study in Australia, however, my intentions were that I had the mind of applying for protection in Australia.As my life will be in danger when I return to Nigeria, I am appealing to the Australian government to grant me protection.
Decision
Reasons for decision
The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[5] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries for 90 days provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[6] [5] IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.23 ACP Observatory on Migration, Annex of ‘Across Artificial Borders: An assessment of labour migration in the ECOWAS region’ – Liberia country report, 1 January 2014, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, CIS22697, p.42, >A 2014 ACP Observatory on Migration/IOM report[7] stated in part that: In relation to the first phase (Right of Entry), all the 15 Member States have abolished visa and entry requirements for those staying up to 90 days. This means that Community citizens in possession of valid travel documents and international health certificate can stay in any ECOWAS member State for up to 90 days without any prior administrative or police formality linked to their stay.[7] ACP, Across Artificial Borders: An assessment of labour migration in the ECOWAS region, Research 2014, p.66, [ The ECOWAS protocols have made considerable legal headway in establishing freedom of movement between ECOWAS member states in practice.[8] According to a DFAT report on Nigeria from 2018:Nigerians can freely enter the fourteen member states covered by the ECOWAS Treaty with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS. Nigerians can apply for an ECOWAS Travel Certificate from an NIS office. Applicants require less documentation to obtain the Certificate than to obtain a Nigerian passport. An applicant must provide photographs, a birth certificate or statutory declaration of age, a letter of introduction from an employer and a letter of confirmation of Nigerian citizenship from the applicant's local government chairman. DFAT understands that movement within ECOWAS is generally free. While some countries have rules relating to residence permits, authorities rarely implement them. Porous borders, tribal links (people of the same ethnic background living in different ECOWAS countries), circular and cyclical migration, especially in the field of agriculture, and lack of knowledge of border laws allow the regular movement of Nigerians to and from other ECOWAS countries. [9][8] Integrate Africa website: [9] Department of Foreign Affairs and Trade, DFAT Country Information Report Nigeria, 9 March 2018.Notwithstanding that all states have ratified the Free Movement Protocol, and there are gradual efforts to progress implementation, there have been a number of implementation challenges, including as recently identified by DFAT.[10] A key challenge is inconsistency between ECOWAS protocols and national laws and policies.[11] Some sources suggest that full freedom of movement and rights to reside are limited by independent laws and restrictions, administrative harassment and extortion.[12] Reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws[13] particularly as each state determines the admissibility of non-citizens. Commentators have suggested that until states agree to restrict determinations of admissibility to the ECOWAS recommended grounds of public order, public health and public security, the entitlements of the protocols are undermined by the states’ recourse to overly broad or arbitrary grounds of inadmissibility.[14] A now somewhat outdated report commissioned by the UNHCR detailed inadmissibility provisions in ECOWAS countries.[15] According to the report, ‘the range of exclusions is at once detailed and vague. In some countries, state officials enjoy an absolute discretion to reject would‑be migrants seemingly without need of explanation or process’. The report suggests that most countries require some form of medical or health certificate. Some require evidence of a return ticket and means of support. Some countries simply maintain an open discretion to refuse admission.[16] Further, a non-citizen’s right to entry may be limited because of a limited understanding and application by member states of the obligations under the Treaty.[17][10] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.[11] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.[12] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.[13] ACP Observatory on Migration, Annex of ‘Across Artificial Borders: An assessment of labour migration in the ECOWAS region’ – Ghana country report , 1 January 2014, pp.46 & 47, IOM and UNHCR, Protecting refugees and other persons on the move in the ECOWAS space, 1 January 2011, p.27, United Nations High Commissioner for Refugees, New Issues in Refugee Research: Promoting integration through mobility: free movement and the ECOWAS Protocol, 1 December 2007, pp.9 &11 Katy Long and Jeff Crisp, Migration, mobility and solutions: an evolving perspective, Forced Migration Review, vol. 35, pp.56-57, [15] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.[16] A Aderanti, B Boulton and M Levin, Promoting integration through mobility: Free movement under ECOWAS, UNHCR, 2010.[17] UN High Commission for Refugees (UNHCR), UNHCR and IOM, Nationality, Migration and Statelessness in West Africa, June 2015, p.86, >The Ghana News Agency, in a report appearing on the Government of Ghana Official website, refers to a meeting between ‘Representatives of civil society, the private sector and the media from the ECOWAS member-states’ held in Accra, Ghana, that attempted ‘to fashion out practical ways to stem harassment on the highways and borders within the region’. The report commented on restrictions to ‘free movement’ between ECOWAS member states, such as ‘illegal barriers and roadblocks’, ‘the extortion of money from travellers’, ‘systematic racketeering’, and some ‘immigration officers refused to recognise national identity cards as a valid intra-ECOWAS travel document’.[18] While this report was in 2008, these kinds of impediments are still commented on and recognised by ECOWAS itself. An article in 2017 refers to the ECOWAS Commission President stating that harassment comprised a major handicap to free movement of persons.[19] [18] Ghana News Agency, Ghana Hosts ECOWAS Meeting On Border Harassment, 3 April 2008, [19] ECOWAS website: A UNHCR report in 2015 provides the following information on the implementation of the ECOWAS Treaty and protocols in practice:Only the first phase of the ECOWAS framework for regional integration – visa-free entry for 90 days – has been fully implemented, although there has been progress in the partial implementation of many other commitments. National laws and policies very often do not conform with the ECOWAS protocols, even when they have been adopted to implement commitments under the protocols. Among the challenges noted as of 2009 were that: “two of the 15 member states have not ratified the supplementary protocol on the right of residence and the right of establishment; regional travel documents have not been distributed in half the countries; and in most countries West African passports are not available; harassments at border control posts continues and racketeering has increased on international routes.”[20][20] UN High Commission for Refugees (UNHCR), UNHCR and IOM – Nationality, Migration and Statelessness in West Africa, June 2015, p.86, type="1">The UNHCR report continues:At the same time, although ECOWAS Member States generally display a tolerant attitude to nationals of other ECOWAS countries with irregular migration status, expulsions do occur and frequently do not follow the requirement to be carried out “solely on strictly legal grounds” … The Protocol on the Definition of a Community Citizen has remained unaddressed in national laws and policies; indeed, its provisions are for the most part not implementable for lack of clarity on what is required. The various protocols have not resulted in any agreement or action to resolve the situation of individuals whose nationality is in doubt, nor to provide access to nationality for migrants and their children.[21][21] Ibid, p.87.More recently, the report of the Special Rapporteur on Migration in Niger in 2019 found that there are restrictions on entry which violated ECOWAS principles.[22][22] UN Human Rights Council, Report of Special Rapporteur on the human rights of migrants – Niger, 16 May 2019, Article 3 of the Protocol gives the right of all ECOWAS members to travel to any state for up to 90 days without a visa, provided that they carry valid travel documents and health certificates. If, however, they decide to extend the stay, an authorisation beyond the 90 days is required. Member states reserve the right to refuse admission to any citizen they consider to be an inadmissible citizen under their law. The phases relating to right of residence and right of establishment have not been fully implemented. Once the 90 days is finished, according to the Protocol, applicants must apply for residence permits, a process which is dependent on national laws and arbitrarily applied by officials. They must apply and obtain a residence and work permit just like non-ECOWAS residents, and obtaining documentation is difficult.[23] The right to residence is not guaranteed.[24] Refusal is possible on the grounds of public order, public security or public health.[25][23] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.[24] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.[25] Department of Foreign Affairs and Trade, DFAT Thematic Report – Economic Community of West African States (ECOWAS), 3 December 2020.Further, articles have suggested that the COVID-19 pandemic has practically led to the ‘suspension’ of the ECOWAS Free Movement Protocol. Many land borders remain closed.[26] [26] Open Democracy, What will international migration in West Africa look like after COVID-19? 16 December 2020; MEDAM_PolicyBrief_ECOWAS.pdf (ecdpm.org) June 2020Most ECOWAS countries closed their borders in April 2020 due to the COVID-19 pandemic.[27] Aljazeera reported on the closure of airspace and lockdowns in a number of states.[28] An academic article in the American Journal of International Law in 2020 states: Immediately after the first signs of COVID-19 in West Africa in March-April 2020, twelve countries officially closed their borders. Other countries, such as Benin, Ivory Coast and Senegal, adopted a more pragmatic approach by merely limiting to essential crossings any arrivals or departures over land, and by adopting human[1]itarian corridors. Many of these measures are based on Article 4 of the 1979 Dakar Protocol of the Economic Community of West African States (ECOWAS) and Article 91 of the amended Treaty of the West African Economic and Monetary Union (known under its French acronym UEMOA), which authorize states to limit the freedom of movement and residence for reasons of public order, public security, or public health. The measures, however, have heavily impacted the legal regime of free movement of persons throughout the ECOWAS area. In the following analysis, I will show that the measures have (1) contributed to the disintegration of the legal regime of free movement of persons in ECOWAS and (2) instrumentalized COVID-19 for political ends in ways that are counterproductive for the region.[29] [27] OECD, When a global virus meets local realities: Coronavirus (COVID-19) in West Africa (oecd.org), 11 May 2020[28] Al Jazeera, [29] American Journal of International Law, Free Movement of Persons in West Africa Under the Strain of COVID-19, Cambridge Core, November 2020The courts have found that a right under s 36(3) must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise (V856/00A v MIMA (2001) 114 FCR 408). The Tribunal notes that Article 3 of the Protocol Relating to Free Movement of Persons makes it a requirement of entry to any ECOWAS state that the applicant possesses a valid travel document and international health certificate.[30][30] Protocol A/P.1/5/79 Relating to Free Movement of Persons, Residence and Establishment, ECOWAS, 29 May 1979 Given the barriers to entry in the above sources and the uncertainty as to whether the applicant would be authorised to stay after 90 days, the Tribunal is not satisfied that the applicant has an existing right (a liberty, permission or privilege) to enter and reside in the ECOWAS countries.The Tribunal is satisfied therefore that the applicant does not have a right to temporarily or permanently enter and reside in any country other than Nigeria and that s 36(3) does not apply in the applicant’s case.ConclusionFor the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) and that no exclusion under s 36(3) applies.DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act1958 (Cth).David McCullochMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Nigeria, 3 December 2020, a copy of which was provided to the applicant in advance of the hearing.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The applicant was granted a [Student] visa on 1 June 2016 and entered Australia [in] June 2016. The applicant applied for a Partner Combined (UK 820/BS 801) visa on 8 July 2017, which was withdrawn on 24 July 2018. The applicant applied for a Protection visa on 6 August 2018 which was refused by the Department on 4 April 2019. The applicant applied for a review of that decision on 9 April 2019. The following information is apparent from the application for protection forms. The applicant was born on [date] in [City 1], Anambra State, Nigeria. The applicant is a Christian and is of Igbo ethnicity. The applicant can speak Igbo, and can speak, read and write in English. The applicant has a father, mother, [and specified family members] who all reside in Nigeria; he is in contact with them via telephone ‘every fortnight or month’. The applicant has a de facto partner who resides in Australia. The applicant resided in [City 1], Anambra, Nigeria from [year of birth] until December 2015, he then moved to [a named town in] Lagos, Nigeria where he resided until June 2016, before coming to Australia. The applicant studied a [course] at [a named college] from 18 June 2016 until 1 May 2017. The applicant lists no employment in Nigeria. In Australia he worked from 1 May 2017 until ‘current’ as [an occupation] at [Employer 1]. The applicant has never travelled to any other countries, nor left Australia since arrival. The applicant was sentenced to [a term of] imprisonment for the charge of ‘recklessly giving other foreign travel document issued to self’ [in] July 2017, and was released from custody [in] February 2018 on account of time served in pre-sentence custody.