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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1910071 (Refugee) [2019] AATA 6019
Case
[2019] AATA 6019
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) considered the protection visa applications of a husband and wife, referred to as the applicant wife and applicant husband, along with their two daughters. The core of the dispute revolved around the credibility of the applicants' claims and whether, if accepted, these claims met the criteria for a protection visa. The Tribunal ultimately affirmed the delegate's decision not to grant the visas.
The legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether they would suffer significant harm if returned to Nigeria. This involved assessing the credibility of the applicants' assertions regarding objections to their marriage, ostracism by their families, and potential harm, including female genital mutilation, under Nigerian customary law. The Tribunal also considered the applicants' migration history, including delays in their application and the making of key claims, as well as the relevance of a criminal conviction against the applicant husband in Australia.
The Tribunal's reasoning focused on assessing the credibility of the applicants' claims in light of their inconsistent evidence and the delays in presenting their case. While acknowledging the applicants' stated fears of harm and ostracism due to their marriage and ethnicity, the Tribunal found that these claims, as presented, did not establish a well-founded fear of persecution or a real chance of suffering significant harm as defined by the Migration Act 1958. The Tribunal considered relevant country information for Nigeria but ultimately concluded that the applicants had not satisfied the criteria for a protection visa.
Consequently, the Administrative Appeals Tribunal affirmed the decision of the delegate not to grant the applicants protection visas. The Tribunal found that the applicants did not satisfy the criteria under section 36(2) of the Migration Act 1958, nor did they meet the requirements for being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and holds a protection visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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’: 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.
Evidence
Evidence Before The Court
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’: 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.
Decision
Reasons for decision
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 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.…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 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...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.…
Ratio Decidendi
Legal Principle Established
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’: 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.