1910071 (Refugee)

1910071 (Refugee) [2019] AATA 6019 (30 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1910071
1909270

COUNTRY OF REFERENCE: Nigeria
MEMBER:David McCulloch
DATE:30 July 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 July 2019 at 4:04pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – objection to the applicants’ marriage – alienation and ostracism by respective families – female genital mutilation (FGM) – Nigerian customary law – criminal conviction in Australia – credibility concerns – delay in applying for protection – delay in making key claims of harm – inconsistent evidence – freedom of information (FOI) request – access to Departmental files relating to the applicants’ protection visa applications – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39 at 45
MIEA v Guo (1997) 191 CLR 559 at 596
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 April 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
In this decision the first named applicant will be referred to as ‘the applicant wife’. The second named applicant will be referred to as ‘the applicant husband’. The third and fourth named applicants will be referred to as ‘the applicant children’.
The visa was applied for on 2 May 2018. At that point the application had been made only by the applicant wife, as the substantive applicant with her own claims for protection and with the applicant children included on the basis of being members of the same family unit as the applicant wife, and not making their own claims for protection. On 26 October 2018 the applicant husband was added to the application as an applicant making his own claims for protection. The applicant wife and the applicant husband were interviewed by the delegate on 5 December 2018. The delegate refused to grant the visas.
On 15 April 2019 the applicant wife lodged an application with the Tribunal for review, including the applicant children but not including the applicant husband. On 23 April 2019 the applicant husband lodged an application for by the Tribunal in his name only, and not including the applicant wife or the applicant children.
Given the connection between and similarity in the claims, the Tribunal determined to hold a combined hearing for the applicant wife and the applicant husband. This intention was conveyed to the migration agent representing the applicant wife and applicant husband and no objection was indicated.
The combined hearing was held on 20 June 2019. The Tribunal was assisted with the use of an interpreter in the Yoruba language. The applicants were represented by their registered migration agent who attended the hearing.
Given significant linkages between the factual claims for protection made by the applicant wife and applicant husband and that the applicant wife and applicant husband are now making claims of similar harm that will be suffered by the applicant children, the Tribunal has determined to make a joint decision covering the separate review claims to the Tribunal.
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 (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 themself 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.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied that the applicant husband and applicant children are members of the same family unit as the applicant wife.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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 a copy of DFAT Country Information Report – Nigeria, 9 March 2018.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant husband and applicant wife and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The decision of the delegate indicates the following in relation to the migration history of all applicants. In the extract below the applicant wife is referred to as ‘the applicant’. The applicant husband is referred to as ‘applicant 2’:

Date

Event details

[date]/1/2016

The applicant, her spouse (applicant 2) and two children (applicant 3 and 4) arrived in Australia as holders of [Visa 1]

3/8/2017

[Visa 2] application commenced

12/11/2017

[Visa 2] application refused

       16/11/2017

[Bridging visa] in association with [Visa 2] application comes into effect.

[date]/11/2017

Applicant 2 arrested and convicted of the following offences:

·     Aggravated indecency – victim under 16 and under authority of offence.

·     Indecent assault of person under 16 years of age – two counts

[date]/1/2018

Applicant 2’s [bridging visa] cancelled under section 116(1)(e)(11) of the Migration Act

[date]/2/2018

Applicant 2 sought merits review at the Administrative Appeal Tribunal of the visa cancellation decision.

[date]/1/2018

Applicant 2 convicted and sentenced to 18 months imprisonment with a non-parole period of 11 months.

2/5/2018

Protection (XA-866) visa application (PV) commenced

[date]/10/2018

Applicant released from custody and detained at [immigration] detention centre.

22/10/2018

[Visa 2] nomination refused

26/10/2018

Applicant 2 added as a dependant to the PV application

[date]/10/2018

Applicant 2’s associated [bridging visa] application refused

[date]/11/2018

Decision to refuse Applicant 2’s [bridging visa] application affirm by Merits Review Tribunal

Applicant wife

The applicant wife arrived in Australia on [Visa 1] [in] January 2016. Prior to coming to Australia, the applicant wife visited [Country 1] from [May] 2011 to [June] 2011, and again from [February] 2014 to [February] 2014.
The following information is apparent from the application forms. The applicant wife was born on [date] in [City 1], Kwara State, Nigeria. The applicant wife married [in] February 2011, and has two daughters, [Child 1], born [date] in [Kwara State], Nigeria, and [Child 2], born [date], in [Abuja State], Nigeria. Both of the applicant wife’s daughters are included in the application. The applicant wife and her daughters are Muslims of Yoruba ethnicity. The applicant wife can speak Yoruba, and speaks, reads, and writes English. [Child 1] can speak, read and write English, whereas [Child 2] can only speak English.
In the applicant wife’s Form C, she indicates that her father still lives in Nigeria, together with her mother, and she has one younger [sibling], whose country of residence is unknown. The applicant states that she has another younger [sibling] who currently lives in [Country 1]. The applicant wife completed high school in Nigeria in [year]. The applicant wife studied and obtained a Bachelor of [Subject 1] from [a] University in Nigeria from [year] to [year]. The applicant wife completed a Certificate 3 in [Subject 2] from [an education provider] in Australia, from March 2016 to August 2016. The applicant wife has been studying a Bachelor of [Subject 3] at [a] University since March 2016.
The applicant wife was self-employed, selling [products], from June 2010 to February 2014. The applicant wife then worked as an [Occupation 1] at [a Workplace] from March 2014 to December 2015. The applicant wife worked as an [Occupation 2] in Australia from October 2016 to March 2018. The applicant wife did not have work rights on her protection visa bridging visa, but subsequently obtained work rights.
The applicant wife lived in Kastina, Kano, Nigeria from January 1995 to January 1999, when she moved to Ilroin, Kwara State until January 2009. The applicant wife then lived in Maiduguri, Borno State until [month year]. The applicant wife moved to [a specified accommodation] in [Abuja State] from September 2012 to January 2016.
The applicant wife provided as part of her application a written statement setting out her claims as follows (not corrected for spelling or grammar):
I was born at [City 1] in Nigeria on [date]. I am currently [age] years old. I am married with two daughters aged [age] and [age] respectively.
I come from a Muslim family. My mother is deceased and I have 2 [siblings]. One his whereabouts are unknown while the other lives and works in [Country 1].
I completed my education in Nigeria and I graduated with a Bachelor Degree in [Subject 1].
[In] January 2016 I arrived in Sydney with my two daughters and my husband to study [Subject 3] at [a] University.
In 2002 I first met my current husband. Our relationship continued up until 2011 when he came and proposed to my father. At that time my mother had passed away. My father refused claiming that he comes from a wicked bad family.
Then my aunt interfered and convinced my father. He then agreed on one condition that I do not talk to him at all. Not only my father objected but all my extended family took the same view. They all stopped talking to me and I was socially ostracised.
Also my husband's family stood against me because I do not come from their town. Accordingly I was also ostracised from his family. They hated me and never spoke to me.
So my husband suggested that we move to another state far from them which we did until we came to Australia.
Then in November 2017 my husband was arrested and he is currently in jail being accused of a serious sexual crime. Accordingly our bridging visa was cancelled.
We are currently living with an Australian family who originally comes from [Country 2].
I cannot go back to Nigeria because if I go they will seriously harm me. They consider that I put my husband in this situation by forcing him to come to Australia.
Also if I go back they will take my daughters from me and I cannot do anything about it.
A family friend to my husband called me from Nigeria and told me never to go back because my husband's family will hurt me. He also sent me an email of which a copy is attached.
I cannot seek help from my family because of getting married against their will and in any way my mother passed away and my father is currently living with his new three wives and he any way does not talk to me and has not spoken to me since my marriage. Also one of my brothers is missing and no one knows anything about him and the second [sibling] lives in [Country 1]. At the same time my extended family stood against me.
Accordingly I am seeking the protection of the Australian government.
The applicant wife provided, as part of the application, a letter dated [April] 2018 from [Mr A]. The letter attests to the fact that the applicant wife fears returning to Nigeria because her husband’s family will remove the children from her. [Mr A] indicates that he is a close family friend of the applicant husband and is aware that he is in jail in Australia and there are pending court proceedings. It is claimed that in Africa divorce or separation in a relationship always lead to such treatment in the husband’s biological family.
Applicant husband
The following information relating to the applicant husband is apparent from the application forms. The applicant husband was born on [date] in Lagos Island, Lagos, Nigeria. The applicant husband is a Muslim of Yoruba ethnicity. The applicant husband knows English and Yoruba. The applicant husband began a relationship in 2002, and married [in] February 2011 in [Abuja State], Nigeria. The applicant husband’s mother, father [and a number of siblings] all live in Nigeria. The applicant husband’s wife and two daughters currently live in Australia.
The applicant husband completed high school in [year] in Lagos, and then completed a [Diploma] in [Subject 4] at [an Institution] from December 1995 to August 1999. The applicant husband them completed [a] Certificate in 2000, and also received a Higher [Diploma] in [Subject 5] from [the Institution] in December 2005. In Australia, the applicant husband undertook [training] and received a Certificate 3 in [Subject 6] from [an Education provider], from September 2016 to November 2016. The applicant husband also received a Diploma of [Subject 4] from [another Education provider] [in] July 2017.
The applicant husband lived in [City 1], Nigeria, from January 1999 to February 2006, and then [a specified accommodation] in [City 2] from February 2006 to June 2016 (sic). In Australia, the applicant husband lived at [Suburb]. The applicant husband worked as a supervisor of a [workplace] from January 2000 to December 2008. The applicant husband was then self-employed as [an Occupation 3] from January 2008 to December 2008. The applicant husband worked as a [manager] from February 2010 to January 2016. The applicant husband lists no employment in Australia, and was convicted in Australia [in] August 2018 of committing an act of indecency against a person under the age of 16.
In the application form dated 25 October 2018, the applicant husband states that he came from Nigeria with his family so that his wife could study a Bachelor of [Subject 3]. In relation to his claims for protection, the applicant husband states that, if he went back, he would have to go back without his family as life would be dangerous for them. The applicant husband further states that his family and his wife’s family are furious with him for shaming them by marrying his wife, coming to Australia, and his criminal conviction. The applicant husband says that he could hide in Nigeria but he would die inside without his wife and children. In the application form the applicant husband says that he was not in danger in Nigeria, but that he was just alienated from his family.
In the delegate’s decision record, it is noted that the applicant wife provided at interview a statement by the applicant husband to the Department. A copy of the statement is not on the Departmental file. The delegate provided the following summary of the statement in the decision record:
At his interview the applicant husband provided an additional statement of claims, which he indicated had been drafted the day before the interview, which is summarised below:
·     His father is a strict man who told him to do things without objection.
·     His problems started when his father rejected his wife as she did not belong to his family's tribe.
·     He tried to change his father's mind but he did not listen to him and they argued for a long time.
·     His marriage took place after the intervention of family members and close family friends.
·     His father was not happy when his daughters were born as he was expecting sons. His father requested that his daughters undertake FGM and have a tribal mark placed on their left hand as they are from a "royal family'. He objected to his father's request and he tried to persuade his two eldest [siblings] to speak to his father but his [sibling]'s agreed with his father.
·     From this time his relationship with his father and [sibling] has not been good as they did not like his wife and he had not agreed to their request to have his daughters undertake FGM and have a tribal mark.
·     His family have been "wicked and hateful" to him as he did not submit to their will.
·     His family are aware of his current difficult circumstances in Australia and they are happy about this. They consider that if his family are deported from Australia they will have to return to Nigeria where they will force him to divorce his wife and take custody of his daughters.
The following documents relating to the applicant husband were provided with the application to the Department:
·Employment contract regarding the applicant husband for the position of [Job title] at [Workplace], dated [July] 2017.
·Marriage certificate between the applicant husband and his wife, dated [March] 2011.
·Certificate of National Service for the applicant husband, dated [March] 2008.
·A copy of the applicant husband’s Medicare card, dated [October] 2018.
·A copy of a National Police Certificate for the applicant husband, dated [July] 2017.
·A copy of the applicant husband’s NSW photo card, dated [October] 2018.
·A Confirmation of Kwara State Origin for the applicant husband, dated [May] 2011.
·A birth certificate for the applicant, dated [date].
·A copy of the applicant husband’s passport.
Submissions pre and post hearing and access to Department file

The applicants’ representative made written submissions to the Tribunal on 13 June 2019, in advance of the Tribunal hearing. In the written submissions, the representative noted that the main issue in the delegate’s decision was credibility. The representative submitted that there may be an issue for the Nigerian family members accepting the indecent assault conviction of the applicant husband, and could exacerbate the pre-existing discrimination against the applicants’ marriage, coming from different tribes. The representative contended that the delegate dismissed concerns of female genital mutilation (FGM) without evidence, as there is information indicating that the mother alone is not the sole decision-maker for whether her daughters will undergo FGM. The representative submitted that the applicant may face coercion in this regard, and that FGM is extensively practised amongst the Yoruba tribe.
The representative submitted that there is an issue in regards to the Yoruba in-laws taking the applicants’ children and subjecting them to FGM, due to the husband’s conviction. To this end, the representative submitted that a hybrid legal system exists in Nigeria, between common law and customary law. The representative submitted that customary law has great potential to be enforced against the applicant, including by a Nigerian court. The representative submitted that the husband’s family may take the applicants’ children based on their knowledge of the husband’s conviction and Nigerian customary law.
The representative’s written submissions also cited two articles in support. These are ‘Customary Law, Social Development and Administration of Justice in Nigeria’[1] and ‘An Overview of Female Genital Mutilation in Nigeria.’[2]
[1] M E Nwocha, ‘Customary Law, Social Development and Administration of Justice in Nigeria,’ (2016) 7 Beijing Law Review 430.
[2] T C Okeke, U Anyaehie, and C Ezenyeaku, ‘An Overview of Female Genital Mutilation in Nigeria’ (2012) 2(1) Annals of Medical and Health Sciences Research (2012) 70.
The first article provides an overview of the interaction of customary and common law in Nigeria. The article defines customary law and reviews the constitutional guarantees for customary law. The article notes that customary law can be enforced by a court if it can be proven as a fact, or a superior court of record has already given it judicial notice. However, a customary law will not be enforced if it is contrary to public policy, natural justice, or equity and good conscience. The article also notes a case wherein a declaration of chieftaincy, if given validly, is automatically to be governed and enforced according to the applicable customary laws for chieftaincy. The article further notes that an arbitration made according to customary law is legally binding if the parties voluntarily submitted to the arbitration; agreed that the decision will be binding; the arbitration was made in accordance with the custom; a decision was reached and published; and the decision was accepted when made. The article also discussed the difference between ‘legal justice’ and ‘social justice,’ and argued that the use and recognition of customary law should be expanded so as to further social justice.
The second article provides an overview of the status of FGM in Nigeria. The article notes that the origins of FGM are unknown, and describes reasons typically given in defence of FGM. The article reviews the health consequences of FGM, and describes the efforts of Nigeria to combat FGM. The article notes that the rates of FGM are reducing. The article also states that the primary decision makers for FGM are grandmothers, mothers, women, opinion leaders, and men. The article further states that, in general, the more educated, informed, and socially and economically active women are more likely to see FGM as unnecessary and refuse to undertake the process either for themselves or their daughters. Nevertheless, the article states that mothers subject their daughters to FGM in order to protect them from ostracism, disgrace, or violence.
The representative provided additional documents at hearing:
- A copy of ‘An Overview of Female Genital Mutilation in Nigeria’, as referenced in his pre-hearing submissions.
- An extract from the article ‘Customary Law, Social Development and Administration of Justice in Nigeria’, as referenced in the pre-hearing submissions.
- An extract from an untitled research report on FGM by the Immigration and Refugee Board of Canada. The report provides an overview on the prevalence of FGM in Nigeria, including its prevalence amongst Yoruba women. The report focusses on FGM amongst the Edo ethnicity, and within Lagos state, as well as noting the societal attitudes towards FGM, including ostracism of girls who do not undergo the procedure. The report further notes that state or other protection may be available, though less so for women and girls of a lower socio-economic status, though the report states that anti-FGM laws are generally weak and not implemented. The report also notes that more educated and economically independent women are more able to resist FGM, and this is especially so in Lagos State and other, more Western-influenced states.
- An extract from an article by T Kehinde Adekunle, ‘Nigerian Indigenous Courts and Their Dispute Resolving Mechanisms in Global Perspective.’[3] The extract provides an overview of the indigenous courts of Nigeria, and a section discussing Sharia courts in Nigeria. The extract notes that Sharia courts are institutionalised tribunals, as they have statutory backing.
- An article by Abdulmumini A Oba, ‘Religious and Customary Laws in Nigeria.’[4] The article discusses the three legal systems operating within Nigeria (common law, customary law and Sharia law). The article argues that Sharia law is incorrectly categorised as a religious law through a misunderstanding of its purpose. The article notes that Sharia law is a complete legal system, like common law, which is applicable to Muslims and non-Muslims, and is not merely relegated to religious affairs. The article further argues that the three legal systems in Nigeria are, to an extent, considered ‘religious law’ by Nigerians, as common law is associated with Christianity, and customary law with indigenous spiritualism. The article discusses instances in southern Nigeria where non-governmental Sharia tribunals have been established, which resolve disputes concerning child custody, divorce, and other civil matters. These tribunals, however, only have jurisdiction over those who voluntarily submit to the tribunal, as they are not established by the state governments.
- An extract from an article by E A Taiwo, ‘Repugnancy clause and its impact on customary law: Comparing the South African and Nigerian positions – Some lessons for Nigeria.’[5] The article discusses the evolution of the ‘repugnancy clause’ or ‘repugnancy test,’ a common law doctrine by which a customary law was rejected if it was against ‘natural justice, equity and good conscience,’ was against public policy, or contradicted any statute. If a customary law is permissible, then it may be enforced by a Nigerian court. The article provides evidence of the test’s historical use, and argues that it operated to ameliorate the customary law. The article discussed two instances regarding inheritance law where the customary law was enforced by a court.
None of the documents submitted provide an indication of a customary law that would give grandparents or others the right to custody of the applicant children, neither in order to undertake FGM, nor due to the applicant husband’s conviction in Australia.
At the end of the Tribunal hearing the applicants’ migration agent indicated that approximately two weeks prior a Freedom of Information (FOI) request had been made to the Department in relation to the files relating to the applicants’ protection visa applications. It was submitted that the contents of this file were needed to properly respond to the matters requested by the Tribunal in the hearing, including two requests made under s.424AA of the Act. It was indicated that the files were needed to indicate the details of evidence that had been provided by the applicants concerning them relocating to an area apart from their respective families to avoid harm. Those files were also needed to clarify evidence that had been given in relation to physical harm suffered by the applicant husband.
The Tribunal determined that the applicant should be given access to the Departmental files prior to the applicants providing the further written material that had been requested. The Tribunal indicated to the applicants in the hearing that it would provide 14 days from the date on which the FOI request was responded to in order to provide the written information requested.
The Tribunal on reflection after the hearing was concerned at the potential delay by the Department in responding to the FOI request in light of the fact that, in particular, the applicant husband was in immigration detention.
In light of that fact, the Tribunal determined to release itself the Departmental file to the applicants which it did with the following exceptions. The Tribunal did not release administrative Departmental emails which were not of any relevance to the claims being made. The Tribunal also did not release reports that showed remittances of money by the applicant wife and applicant husband to Nigeria nor correspondence with the Department as between Departmental officials in terms of those transactions. Those documents were not provided because of information provided by the Department that it would be appropriate for a nondisclosure certificate to be issued to protect the nondisclosure of at least part of that information. In the letter sent by the Tribunal to the applicants on 26 June 2019 the Tribunal provided the substance to the applicants of the adverse information contained in these documents which had not been released in full to the applicants.
After provision of information on the Departmental file, the applicants’ migration agent made a request for the interview between the delegate and the applicant wife and applicant husband. The Tribunal duly provided a recording of the interview to the applicants.
Two written submissions were provided by the migration agent following the provision of this information.
It was submitted that the applicants are separately claiming a risk based on adverse family reaction to the sexual assault charges of which the applicant husband has been convicted in Australia. This is indicated as being distinct from claims of earlier family conflict. This conviction will weaken the ability of the applicant wife and applicant husband to resist the desire of extended family members for FGM to be inflicted on the children.
It is submitted that the failure of the applicant wife and applicant husband to earlier make claims of harm based on FGM being suffered by the children was because they were making claims based on help from church members and that FGM would not fall within the refugee criterion but would only meet the complementary protection criterion.
Other written submissions are referred to in the discussion of specific credibility issues below.
Independent information sourced by Tribunal
Female genital mutilation
DFAT Country Information Report – Nigeria, 9 March 2018 has the following information regarding the practice of FGM in Nigeria:
Female genital mutilation (FGM) is widely practised in Nigeria. In 2012, the Nigerian Demographic and Health Survey (NDHS) estimated that approximately 40 per cent of adult females had been subjected to FGM. This report is the last official publication on prevalence of FGM in Nigeria. FGM is more common in the southern states, where prevalence rates are estimated to be as high as 70 per cent. The practice is closely tied to concepts of family honour and girls’ marriageability. Girls may be ostracised, shunned or assaulted by their family or community if they have not undergone FGM.
The federal government publicly opposes FGM, but it has not criminalised the practice. The government has predominantly focused on public education campaigns run by the Ministry of Health. Some southern states, including Bayelsa, Edo, Ogun, Cross River, Osun, and Rivers States, have criminalised FGM under state law. Several other states are introducing similar legislation. Several international and local NGOs are also working to reduce the practice in Nigeria, including the World Health Organisation, United Nations International Children Emergency Fund and the African Union.
DFAT assesses as credible advice from local sources that it remains extremely difficult for women and girls to obtain protection from FGM. Despite an increase in reports received by the Nigerian Police Force (NPF) and the National Human Rights Commission (NHRC), strong community support for the practice and traditional attitudes of police suggest FGM is likely to continue.[6]
[6] DFAT, DFAT Country Information Report – Nigeria 2018, 9 March 2018, p. 21, para [3.47] – [3.49], < (accessed 17 May 2019).
The 2018 US Department of State’s report on Nigeria noted that, although Federal law criminalises FGM, it took no legal action to curb the practice.[7] The report also stated that 12 states had banned FGM, but NGOs had to convince local authorities that the state laws apply.[8] The UK Home Office reported that, although enforcement of the laws varies, the Nigerian police are working to improve their responses to gender-based violence.[9] The UK stated that “[i]n general, effective state protection is likely to be available.”[10]
[7] US Department of State, Country Reports on Human Rights Practices for 2018 – Nigeria, March 2019, p. 33, < (accessed 17 May 2019).
[8] Ibid.
[9] UK Home Office, Country Police and Information Note – Nigeria: Female Genital Mutilation (FGM), February 2017, p. 5 - 6 para [2.3.2] – [2.4.5], < (accessed 17 May 2019).
[10] Ibid, p. 6 para [2.4.6].
Nevertheless, the Canadian Immigration and Refugee Board published a 2016 report (2016 Board Report) which quoted a source expressing doubt “that many would have the courage "to take their parents or grandparents to court", explaining that "[t]hese are the persons who demand compliance of the practice in culture[s] where it is the norm" (CWSI 2 Sept. 2016).”[11]
[11] Immigration and Refugee Board of Canada, Nigeria: Prevalence of female genital mutilation (FGM), including ethnic groups in which FGM is prevalent, particularly in Lagos State and within the Edo ethnic group; consequences for refusal; availability of state protection; the ability of a family to refuse a ritual practice such as FGM (2014-September 2016), 13 September 2016, < (accessed 17 May 2019).
The European Asylum Support Office (EASO) published a 2019 report on Nigeria, which states the general prevalence of FGM shows a downward trend.[12] The report noted that the Yoruba people have one of the highest rates of FGM, stating:
Some of the ethnic groups with highest prevalence rate of FGM/C are Yoruba (52 – 90 % in different studies), Edo/Bini (69 – 77 %), Igbo (45 – 76 %). The prevalence rate for the Hausa-Fulani is estimated at 13 – 30 %.[13]
[12] European Asylum Support Office, Country Guidance: Nigeria, February 2019, p. 63, < (accessed 17 May 2019).
[13] Ibid.
The EASO report also indicates that the decision whether or not to perform FGM is usually with the parents; whether the final decision is with the father or mother depends on the ethnic groups.[14] However, the report also indicated that “grandparents or the eldest female on the paternal side may also have a decisive role.”[15] In addition, the report described that relatives may pressure parents by threatening to withhold support, but parents are usually not subjected to actual or threatened violence. Furthermore, while there are cases in which relatives have disregarded the parents’ decision and subjected a girl to FGM, these are considered to be unusual situations.[16]
[14] European Asylum Support Office, Country Guidance: Nigeria, February 2019, p. 63, < (accessed 17 May 2019).
[15] Ibid.
[16] Ibid.
The Canadian Immigration and Refugee Board also provided a 2018 research report regarding FGM in Nigeria (2018 Board Report). The report indicated that, although the parents usually make the decision, grandmothers will be very influential, and there is a report in which a grandmother subjected her granddaughter to FGM against her mother’s wishes.[17] The UK Home Office quoted an Annals of Medical and Health Sciences Research Paper that FGM is entrenched in Nigerian society, and decision makers are likely to be “grandmothers, mothers, women, opinion leaders, men.”[18]
[17] Immigration and Refugee Board of Canada, Nigeria: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018), 29 October 2018, < (accessed 17 May 2019).
[18] UK Home Office, Country Police and Information Note – Nigeria: Female Genital Mutilation (FGM), February 2017, p. 9 para [5.1.3], < (accessed 17 May 2019).
The 2016 Board Report also indicated that, in general, more educated and economically independent women are more able to resist FGM than non-educated or rural women.[19] Nevertheless, relatives may “mount pressure on the father or mother in order to preserve their cultural values.”[20]
[19] Immigration and Refugee Board of Canada, Nigeria: Prevalence of female genital mutilation (FGM), including ethnic groups in which FGM is prevalent, particularly in Lagos State and within the Edo ethnic group; consequences for refusal; availability of state protection; the ability of a family to refuse a ritual practice such as FGM (2014-September 2016), 13 September 2016, < (accessed 17 May 2019).
[20] Ibid.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191, where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicants are all are citizens of Nigeria and accordingly the claims will be assessed against Nigeria. The Tribunal is satisfied that each applicant is a member of the same family unit as each other applicant.
Applicant wife
The Tribunal has the following credibility concerns with the claims by the applicant wife.
Firstly, the applicant wife’s evidence in relation to claimed physical harm suffered by her husband was made for the first time at a very late stage in the proceedings and she has also been inconsistent as to the identity of the perpetrators of the attacks as compared with evidence provided by the applicant husband.
Neither the application for the protection visa, nor the written statement provided by the applicant wife accompanying it, nor the applicant wife’s evidence in the interview with the delegate made any reference to her husband suffering physical harm in Nigeria, including in the context of the applicant wife being specifically mentioned by the perpetrators in the attacks.
In contrast, the applicant husband in his interview with the delegate referred to three or four physical attacks on him by relatives of the applicant wife. He referred to being tortured and stabbed.
The Tribunal asked the applicant wife in the Tribunal hearing if her husband had ever been subject to physical attacks while she and her husband had been together. In response, the applicant indicated in the hearing that there had been attacks on him by unknown perpetrators in 2012, 2013 and 2015. The applicant wife indicated that in at least the last two incidents, the applicant husband had been told in the attacks by the perpetrators that he should leave his wife.
When the Tribunal asked the applicant wife if she could speculate on the reasons for the attack and who they had been initiated by, she indicated that she could not do so. When asked if they could have been initiated by her family the applicant wife indicated that she could not say as she had not been in contact with them for a significant period.
As put to the applicant wife in the hearing, the Tribunal has credibility concerns that if these multiple attacks had occurred, in two of them at least, with a statement being made by the perpetrators that the applicant husband should divorce the applicant wife, this evidence would not have been provided by the applicant wife at an earlier opportunity in the proceedings, that is, in the application form itself, the accompanying written statement or in the interview with the delegate.
In response to this issue in the hearing the applicant wife indicated that this was due to stress, restlessness and not being well composed. She has now recuperated and is in a position to provide this evidence.
The Tribunal is not persuaded as to this explanation. The claimed attacks would be very significant and relevant factual matters in relation to the claims by the applicants. The Tribunal considers the failure to make such claims at any time before the Tribunal hearing is undermining of the credibility of those claims.
Further, there is an inconsistency between the evidence of the applicant wife and the applicant husband as to the identity of the perpetrators. In the interview with the delegate, the applicant husband specifically said that the attacks were by relatives of his wife. In contrast, the applicant wife in the hearing in her evidence on this issue has said that the perpetrators were unknown individuals with the applicant wife herself having no knowledge that the perpetrators were sent at the behest of her family. This inconsistency is further undermining as to the truth of the claimed attacks.
Secondly, it is claimed by the applicant wife that the applicant children face harm as a result of her husband’s family wishing to inflict FGM on the applicant children. Yet, as put to the applicant wife in the hearing, when the applicant wife first made the application for a protection visa in May 2018 it was specifically indicated that the applicant children did not have their own fears of harm. The claim of the applicant children being at risk of FGM was only made by the applicant wife for the first time at the interview with the delegate that took place on 5 December 2018.
This was put to the applicant wife in the Tribunal hearing. The applicant wife had given evidence in the hearing that she had been fearful, while in Nigeria, of FGM being inflicted on her children.
In response to this credibility concern the applicant wife indicated that she was very stressed and depressed when initially making the application for the protection visa. She indicated that the individuals who assisted her with the application did not include this relevant information.
In oral submissions in the Tribunal hearing the migration agent had submitted that the main issue of concern for the applicants was that of FGM being inflicted on the children. He indicated that violence from family members was less of a concern.
In written submissions that were provided following the Tribunal hearing, it is submitted that FGM was not included because individuals from the church who helped with the applicantion did not recognise that this could be a legitimate claim under the complementary protection criterion. Assessment was only being made under the refugee criterion. It is also submitted that the applicant wife was in difficult living circumstances at this time, including living out of her car.
The Tribunal is not satisfied that, even if the applicant wife had obtained the assistance of another person to help with the application and was encountering difficult living circumstances, it would not be indicated in the application that the applicant children have claims of harm on their own behalf if in fact there had been a long-standing and ongoing fear of them being subject to FGM.
The Tribunal would consider that if the applicant wife had had the assistance of non-expert church colleagues in making the application, claims of all key harm would have been included, without regard to nuances as between the refugee criterion and the complementary protection criterion. The Tribunal considers the fact of non-experts being involved would enhance, rather than limit, all claimed areas of harm being included.
The Tribunal finds the specific indication in the initial protection visa application of the children having no claim of harm on their own behalf undermining of the applicant wife having any significant concern as to FGM being inflicted upon her children at the time she left Nigeria or thereafter. This is in turn undermining of claims that there was a desire by grandparents of the children to inflict FGM on them.
Thirdly, the significant delay in Australia in applying for protection is undermining of concerns by the applicant wife at the time she first arrived in Australia of concern that the children were risk of FGM from extended family members.
The Tribunal put to the applicant wife in the hearing that it would have considered, if the applicant children were at risk on return to Nigeria of FGM, claims to this effect would have at least been made when the protection visa application was initially made in May 2018. Further, the Tribunal might reasonably have considered that, if there were a risk to the applicant children on this ground, because of events that had occurred prior to the applicants coming to Australia, a claim for protection on this basis would have been made on behalf of the children at a point soon after the applicants arrived in Australia in January 2016.
In response the applicant wife indicated that the key reason that the family came to Australia was to secure the safety of the children. It was thought that a [Visa 2] would give the family a more permanent basis on which to stay in Australia.
As indicated, it has been submitted following the hearing that claims regarding FGM were not initially made because of distinctions between relevant protection criteria. For the reasons indicated above, the Tribunal does not accept this.
The Tribunal considers the delay in applying for protection is inconsistent with the applicant wife having any significant concern at the time the family left Nigeria of the risk to the children of FGM on return. The Tribunal does not consider that the possibility of obtaining another visa to stay in Australia, the application for which was ultimately unsuccessful, and therefore subject to an uncertain outcome, would have provided such security to the applicant wife and husband as to their ability to stay in Australia that they would have delayed so long in making claims for protection based on the children being at risk of FGM.
The delay in applying for protection is also undermining of claims of harm based on family/tribal difference.
Fourthly, the applicant wife’s evidence as to how the applicant husband’s family were aware of the criminal conviction and imprisonment of the applicant husband in Australia was not credible to the Tribunal.
In the interview with the delegate the applicant wife gave evidence that she had called her husband’s aunt in November 2017 and informed her about her husband’s conviction and imprisonment. The applicant wife indicated that she did this as her husband had not been released and she did not know what to do. The applicant wife gave evidence that she did not call any of her own friends as they would ‘mock her’. The applicant wife gave evidence that her husband’s aunt laughed at her when she conveyed the situation facing her husband.
In the Tribunal hearing the applicant wife confirmed that she provided this evidence.
The Tribunal put to the applicant wife in the hearing the account provided by the applicant wife lacked plausibility and credibility. As put to the applicant wife, she had not made any such claim in her written claims. Further, the claimed contact with her husband’s aunt is inconsistent with the written claims that the applicant wife is ostracised by and has no contact with her husband’s family. In addition, it is not plausible that the applicant wife would seek solace or advice from members of the husband’s family who are claimed to have ostracised the applicant wife in preference to making contact with her own friends or family members with whom she has contact.
In response the applicant wife indicated that she needed some support for her situation and had no one else to turn to. She determined to call her husband’s aunt after she saw her phone number in his wallet.
The Tribunal is not satisfied as to the scenario as explained by the applicant wife. The Tribunal is not satisfied that the applicant wife would not have had a suitable and more sympathetic person to seek advice from than a family member of her husband when the whole claimed history of the relationship between the applicant wife and her husband’s family had been that of ostracism and no contact.
Fifthly, the applicant wife’s claims that she is ostracised by her own family due to the marriage is inconsistent with evidence that suggests that the applicant wife has on multiple occasions sent money to her father in Nigeria.
The Tribunal put to the applicant wife in the hearing the following information pursuant to the procedural requirements of s.424AA of the Act. This is information in the delegate’s decision and on the Departmental file that the applicant wife has on at least 50 occasions remitted money in Nigeria to a [Alias B] at a listed postal address. It was put to the applicant wife that the name of this individual was substantially similar to that of the name provided by the applicant wife of her father, being [Mr B]. The Tribunal noted that the address to which the remittance was sent was the address that had been provided by the applicant wife as the address of her brother. This information is relevant because these factors would tend to suggest that the remittances had been sent to family members in contrast with the applicant wife’s claims that she is not in contact with her family and is ostracised by them.
The consequence of relying on this information would be to question the applicant wife’s credibility in relation to specific claims as to a lack of contact with and ostracism by her family and that they objected to her marriage, and the applicant wife’s credibility generally.
In response, the applicant wife elected to provide a response in writing after the hearing. In the written response it is indicated that this credibility issue should not undermine the credibility of the applicant wife on more substantive issues in terms of her claims.
The claim by the applicant wife to have been ostracised from her family, whilst not absolutely central to her claims, is an important component of it. This is not an issue which on its own would undermine the credibility of the applicant wife in entirety but it will be considered cumulatively together with other credibility concerns.
Sixthly, evidence by the applicant wife suggests that her and her husband and the children were safe from their respective families as they lived apart from them. This goes to whether the protection criteria are fulfilled and whether there is a risk of harm in all parts of Nigeria.
The applicant wife’s written statement indicates that her husband suggested that the family move to another state of Nigeria far from their respective families which they did until they came to Australia. The applicant wife did not indicate any difficulties suffered by the applicants during this period.
This was put to the applicant wife in the hearing as suggesting that the applicants could avoid harm by not living close to their respective families.
In addition, as put to the applicant wife she had given evidence that nothing had happened to her two children after they were born because they lived apart from her husband’s family. That was put to the applicant wife at the hearing as it suggested that harm to the children could be avoided by them living apart from their extended families.
In response the applicant wife denied that she had given evidence that the family was able to live safely apart from their extended families. She alternatively indicated that there might have been a misunderstanding in evidence. As a result of this, the Tribunal put to the applicant, under the procedural requirements of s.424AA of the Act prior evidence given by the applicant wife in the interview with the delegate that the family had lived a long way apart from extended families as a means of avoiding harm and that nothing had happened to her children when they lived apart from extended family.
The Tribunal indicated this information was relevant because it suggests that harm to the children could be avoided by them living apart from extended family. The consequence of relying on this information is to undermine claims that harm is faced by the applicants.
In response, the applicant wife elected to respond in writing after the hearing. In the response it is indicated that a separate claim is being made as a result of difficulties that will be faced by the applicants as a result of the criminal conviction in Australia of the applicant husband.
The Tribunal maintains its view that the applicants were able to avoid any harm from their extended families during the time that they were in Nigeria because they lived apart from their extended families. Issues relating to the criminal conviction of the applicant husband are dealt with in the overall assessment of claims.
Applicant husband
The Tribunal has the following credibility concerns with the claims of the applicant husband
Firstly, the applicant husband has provided markedly inconsistent evidence as to whether he had faced harm in Nigeria. In the application forms for the protection visa the applicant husband stated that he was not in danger in Nigeria, he was just alienated from his family. Further, in the written statement provided by the applicant husband at the interview with the delegate, the applicant made no claims to having suffered specific harm in Nigeria.
In significant contrast, in the interview with the delegate, the applicant husband claims that his wife’s relatives attacked him a couple of times in 2012. The applicant husband later says that he was attacked three to four times. The applicant husband later refers to being tortured and stabbed. The applicant husband refers to incidents in 2012, 2013 and the last incident in 2015. He refers to being hospitalised.
As put to the applicant husband in the hearing, this evidence in the interview is significantly inconsistent with a specific statement in his application form that he was not in danger in Nigeria. Further, his written statement provided on the day of the interview makes no claims of such harm. As a result, the Tribunal indicated that it had significant credibility concerns with these later claims of the assaults in Nigeria.
In response, the applicant husband indicated that he had never said that his life had not been in danger. He indicated that he only signed the page on his application form for the protection visa requiring his signature. He indicated that he did not see the claims that he made. He indicated that the information had been put together by individuals who had helped his wife.
The Tribunal takes at face value the applicant husband’s application form for the protection visa, which stated that he attested to and endorsed the truth of its contents. In the event that information was compiled at the behest of the applicant wife, the Tribunal considers that she would have been aware of the multiple physical attacks claimed to have been inflicted on the applicant husband and ensured that those attacks were mentioned. The Tribunal also finds it telling that the written statement provided by the applicant husband at the interview with the delegate makes no mention of such attacks.
The Tribunal finds the inconsistency in evidence by the applicant husband on this issue and his late claim of physical attacks as significantly undermining the truth of these claimed attacks and the overall credibility of the applicant. This is reinforced by the applicant husband having given specific evidence that the attacks were perpetrated by members of his wife’s family and the applicant wife giving evidence that, although the relationship was mentioned in the attacks, she had no knowledge as to the identity of the perpetrators or could say that they had been caused by her family.
Secondly, the delay by the applicant husband in applying for a protection visa in October 2018, when he arrived in Australia in January 2016, and in the context of the applicant husband previously unsuccessfully applying for other visas is not consistent with the claims by the applicant husband that he had suffered numerous assaults in Nigeria and had a fear of returning on that basis. The Tribunal would have expected, had these occurred, that the applicant husband would have applied for a protection visa at a much earlier stage.
The Tribunal notes that [in] August 2017 the applicant husband applied for a Visa 2], which was refused.
In response, the applicant husband indicated that he came to Australia with his family so that his wife could study and to possibly seek permanent residence by other means.

The Tribunal does not accept this explanation. The Tribunal does not consider that the applicant husband could have reasonably been assured that the [Visa 2] would guarantee protection and permanent residence in Australia, particularly given the circumstances in which it was ultimately refused.
Thirdly, the delay by the applicant husband until the date of the interview with the delegate in making claims that his children were at risk of FGM and not making such claims in his application for the protection visa in October 2018 is undermining of the truth of those claims.
This was put to the applicant husband in the Tribunal hearing. In response the applicant husband referred again to not knowing what was written in his original application for the protection visa.
The Tribunal is not satisfied that if there had been ongoing concerns, including at the time the applicants left Nigeria, of FGM being inflicted on the children, that the applicant husband (and the applicant wife) would not have ensured that this was mentioned at an earlier opportunity than at the interview with the delegate. For the reasons indicated above, the Tribunal is not satisfied that this omission is a product of nuanced distinctions between relevant protection criteria.
Fourthly, the Tribunal would have expected that if the applicant children had been at risk from birth of having FGM inflicted on them, an application on their behalf for a protection visa would have been made soon after their arrival in Australia in January 2016. The delay in a claim to this effect being first raised in October 2018 is inconsistent with the truth of the claims.
The Tribunal notes the evidence of the applicant husband that he thought that the security of the family in Australia would be ensured initially by the student visa and then a more permanent migration visa. However, for the reasons indicated the Tribunal does not consider that the applicant husband could or would have reasonably had this assurance. The failure by the applicants to lodge a protection visa application at an earlier point in time based on the risk of FGM is undermining as to the truth of those claims.
For the reasons indicated above, the Tribunal is not satisfied that this omission is a product of nuanced distinctions between relevant protection criteria.
Fifthly, the ability of the applicant husband (and his wife) to prevent any FGM being inflicted on his children after the first child was born in [year] up until coming to Australia in 2016 could suggest that the applicant husband and his wife would be in a similar position to protect the children from FGM on return to Nigeria.
In response, in the hearing, the applicant husband referred to the fact that the wishes of his parents for FGM could not be refuted for this extended period. The applicant referred to customary law giving extended families authority in relation to children. The Tribunal noted to the applicant husband and the applicant wife that none of the independent information that had been provided on customary law in Nigeria indicated the there was a risk based on customary law of extended family members imposing FGM on children over the objection of their parents. The applicant husband referred to a specific article making reference to this. The Tribunal asked for this reference to be pointed out to the Tribunal. The applicants’ migration agent submitted that whilst there was no evidence of customary law in itself being used to inflict FGM on the applicant children, it might be inferred from the power of customary law in Nigeria together with the ingrained practice of FGM that customary law could be used in this way.
The Tribunal is not satisfied of this, based on the independent evidence. The Tribunal accepts that FGM is an ingrained practice in Nigeria. The Tribunal accepts that customary law can apply in Nigeria. However, there is no evidence of customary law that would give rights to family members apart from parents to determine that medical procedures, including FGM, be performed on children.
In the written response provided following the hearing it is indicated that the risk to the children of FGM is now more pronounced because of the criminal conviction in Australia of the applicant husband. For the reasons indicated below, the Tribunal is not satisfied of this.
Assessment and findings
The Tribunal considers cumulatively the credibility concerns identified in relation to the applicant wife. The Tribunal considers cumulatively the credibility concerns identified in relation to the applicant husband. In both cases there are significant and stark credibility concerns. The Tribunal is not satisfied that the applicant wife or the applicant husband have been truthful or credible witnesses. The Tribunal is not satisfied as to any substantive claims made by the applicant wife and the applicant husband.
The Tribunal is not satisfied that the family members of either the applicant wife or the applicant husband objected to the marriage of the applicant wife and applicant husband. The Tribunal is not satisfied that either the applicant wife or the applicant husband have been alienated and ostracised by their own family members or the family members of their respective spouses. The Tribunal is not satisfied that the applicant husband has been physically assaulted on any occasion by the family of the applicant wife or anyone else.
The Tribunal accepts that the applicant husband has been convicted of a serious criminal offence in Australia and that this may cause concern and upset for extended families in Nigeria. However the cumulative impact of the credibility concerns identified in relation to both the applicant wife and the applicant husband cause the Tribunal to have significant concerns as to their overall credibility. The Tribunal is not satisfied with claims that the criminal conviction has now created a new significant adverse intention by the extended families of the applicant wife and applicant husband to harm any of the applicants, including by separating the applicant children from their parents or by causing FGM to be inflicted upon the applicant children.
The Tribunal is not satisfied that either the applicant wife or the applicant husband has a real chance of suffering serious or significant harm from members of their own family or members of their respective spouse’s family.
The Tribunal is also not satisfied that the families of the applicant wife or the applicant husband would or do have the ability to cause the applicant wife and applicant husband to separate or to cause the applicant children to be separated from their parents. The Tribunal is not satisfied that there is a real chance of serious or significant harm to any applicant on this basis.
The Tribunal accepts the independent evidence as to the prevalence of FGM in Nigeria, including in relation to the tribe of the applicant father. The Tribunal accepts the independent information that in certain situations grandparents can be involved in the decision as to whether FGM should occur. However, the credibility issues identified cause the Tribunal to not be satisfied that the family of the applicant husband or anyone else has sought to inflict FGM on the applicant children. In any event, the applicant wife and applicant husband themselves have no desire to inflict FGM on the applicant children. They clearly had control and an ability to enforce that determination that FGM not be inflicted on children up until the point that the family came to Australia. The Tribunal considers that on return to Nigeria this ability of the applicant wife and applicant husband to determine no adverse medical procedures on the children would continue. The Tribunal is not satisfied that the criminal conviction in Australia of the applicant husband changes this assessment.
The Tribunal accepts the existence of customary law in Nigeria and the prevalence of FGM. However, in the absence of any independent evidence before the Tribunal, the Tribunal is not satisfied that there exists in Nigeria customary law that could be enforced against the applicant wife and applicant husband and against the applicant children to cause FGM to be inflicted upon the children. No evidence has been provided that would lead the Tribunal to the view that the criminal conviction of the applicant husband in Australia would lead to a sanction against the applicant husband in Nigeria under customary law or provide any basis on which the applicant children could be subject to FGM.
Given the credibility issues referred to, the Tribunal is not satisfied with the claims that the families of either the applicant wife or the applicant husband have an adverse interest or intention in relation to any of the applicants. Accordingly, there is no real chance of serious or significant harm to any of the applicants on that basis.
The Tribunal is not satisfied that there is a real chance of serious or significant harm of FGM being inflicted on the applicant children on return to Nigeria for the reasons claimed.
Considering all of the circumstances and evidence, the Tribunal is not satisfied that there is a real chance of serious or significant harm being inflicted on any applicant as a result of the application of customary law.
In summary, the Tribunal is not satisfied there is a real chance of serious or significant harm towards any of the applicants in returning to Nigeria for the reasons claimed.
The Tribunal is not satisfied that any of the applicants has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, any of the applicants face a real risk of significant harm.
For the reasons given above, the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy 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. Accordingly, the applicants do not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
Member

ATTACHMENT - 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 6019

30 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date	Event details
[date]/1/2016	The applicant, her spouse (applicant 2) and two children (applicant 3 and 4) arrived in Australia as holders of [Visa 1]
3/8/2017	[Visa 2] application commenced
12/11/2017	[Visa 2] application refused
16/11/2017	[Bridging visa] in association with [Visa 2] application comes into effect.
[date]/11/2017	Applicant 2 arrested and convicted of the following offences: · Aggravated indecency – victim under 16 and under authority of offence. · Indecent assault of person under 16 years of age – two counts
[date]/1/2018	Applicant 2’s [bridging visa] cancelled under section 116(1)(e)(11) of the Migration Act
[date]/2/2018	Applicant 2 sought merits review at the Administrative Appeal Tribunal of the visa cancellation decision.
[date]/1/2018	Applicant 2 convicted and sentenced to 18 months imprisonment with a non-parole period of 11 months.
2/5/2018	Protection (XA-866) visa application (PV) commenced
[date]/10/2018	Applicant released from custody and detained at [immigration] detention centre.
22/10/2018	[Visa 2] nomination refused
26/10/2018	Applicant 2 added as a dependant to the PV application
[date]/10/2018	Applicant 2’s associated [bridging visa] application refused
[date]/11/2018	Decision to refuse Applicant 2’s [bridging visa] application affirm by Merits Review Tribunal