1924994 (Refugee)
[2025] ARTA 1139
•4 February 2025
1924994 (REFUGEE) [2025] ARTA 1139 (4 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1924994
Tribunal:General Member S. Zelinka
Date:4 February 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 04 February 2025 at 2:29pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – women refusing female circumcision – bride price – physical assault – attempted kidnapping – fear of killing – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Nigeria applied for the visa on 17 October 2017. The delegate refused to grant the visa on the basis that he was not satisfied there was a real chance that the applicant would be persecuted for any reason in Nigeria.
The applicant appeared before the Tribunal on 17 January 2025 to give evidence and present arguments.
The applicant was represented in relation to the review.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is [an age]-year-old single woman of Ibo ethnicity and the Catholic faith from Imo State in Nigeria. She has [an age] year old son whom she has left with a friend in Nigeria. The applicant arrived in Australia in May 2017 and applied for a protection visa some four months later.
Claims
She set out her claims in a statement that she submitted with her protection visa application (PVA). She said she was raised by her mother and grandmother in the latter’s house. The applicant’s mother had left the applicant’s father due to domestic violence; she also said that the father rejected Christianity and worshipped idols at a shrine.
The applicant write that her grandmother died when the applicant was at university and things were economically difficult for her and her mother. When her father approached her the following year and said she (the applicant) should go and stay with him, her mother pushed her to do this and the applicant complied during the next vacation.
At the hearing, the Tribunal began by clarifying the applicant’s relationship with her father. She said that she had never lived with her father as a child or adolescent: her mother left him before the applicant was born on account of domestic violence. The applicant grew up with her mother and grandmother and did not really hear about her father’s violence and his involvement in some sort of traditional religious practices until she was in her teenage years. When she went to university in the latter part of [specified year], she took a room in student accommodation on campus and kept that room throughout the next [number] years until she started her National Youth Service Corps placement on [in year].
The applicant’s grandmother died in 2008 and the applicant’s mother stayed on in the same house. At this point, the applicant being [age] years old, her mother started to think about her getting married, a procedure which customarily involves bride price and other formalities. The applicant’s mother suggested that she should get to know her father as he should handle these things. The applicant’s mother arranged that in the holidays, the applicant should stay with her father.
At his house, she became acquainted with her half-sister – her father’s daughter with a different mother. The applicant’s father raised the issue of female circumcision with her, saying it was customary that women should be circumcised before they married. The applicant said she would not do it. The Tribunal asked if she discussed this with her half-sister: the applicant said she did, and found that the half-sister had been circumcised as a child.
In her initial written claims, the applicant said that her father raised the topic of circumcision with the applicant saying it was her duty to do this before marriage. The applicant refused. When she returned later to the house, she found a strange woman there. The father and another man grabbed the applicant and held her while the woman started to remove the applicant’s clothes. The applicant’s yells and screams alerted neighbours who broke the door down and came in, allowing the applicant the opportunity to run away back to her room on campus some distance away. She stayed on campus until her National Youth Service Corps placement which saw her sent to another state.
At the hearing, the applicant again said that she rejected the idea of circumcision when it was raised by her father. She claimed that she returned to her father’s house one day and found a woman there who was clearly there to circumcise her. The applicant resisted and left the house, returning to her room on campus. She did not return to her father’ house and had no more contact with him for some years. The applicant finished university in [year] – it had taken [number] years – and then stayed on either in her campus room or at her boyfriend’s place doing the training courses in preparation for her mandatory National Youth Service Corps (NYSC). In [year] she was set to another state for her NYSC placement which lasted one year. The applicant has submitted documents attesting to her [number] years at university and her year of national service. She also stated that while doing her national service, she studied for the IELTS – the qualification needed to show English proficiency if one wants to study overseas in an English-speaking country.
In her written claims, she said that after the completion of her NYSC placement, she went to live with her boyfriend in her hometown where both her mother and her father lived (separately). The applicant began work and then received a phone call from her father, asking why she was not living at his place, being so much closer to her workplace. She said she would not return after what happened last time. Then the applicant’s mother started to say that she should live with her father and so she “weakened” and returned to her father’s house. The father resumed his conversation on how it was necessary for women to be circumcised before marriage; failure to do so would lead to the death of both husband and son, although the applicant pointed out to her father that she had neither husband nor son.
Some months later, the applicant came home to her father’s after work and saw the same woman outside the house. The applicant immediately caught a bus back to her mother’s house. A later phone call saw her father explaining that the woman was there by coincidence, not design; the applicant’s mother told her to return to her father’s. Over the next year, the father prevaricated about the applicant and her boyfriend getting married: the boyfriend had asked her father for her hand in marriage but the father kept delaying negotiations about a bride price. Then the applicant’s father raised again with the applicant his complaint that she was not circumcised. In February 2016 the applicant (still unmarried) became pregnant and at the end of March 2016 she was retrenched from her job.
Still in the initial written claims, the applicant stated that in May 2016 an associate of her father came to convince the applicant to undergo circumcision saying that it was important to her father’s prestige as [Official 1] and he could not allow her to marry without undergoing it. The applicant moved back to her boyfriend’s house and in June two men came there and attempted to grab her and put her in a car. However, one said to the other that they should leave her alone as she was pregnant and so they left.
At the hearing, the Tribunal sought clarification about this period of the applicant’s life. She said that after her national service, she returned to her home state and lived with her boyfriend [Boyfriend A] who found her a job in the [business 1] in 2014. She then received a phone call from her father who said he knew where she was working and as the [business 1] was near to his place, why didn’t she come and live there instead of travelling quite a long way to work. She said she did not want to return to his place. Then the applicant’s mother began to phone her, saying the father had been in touch and she (the mother) agreed that the applicant should return to her father. The Tribunal put it to the applicant that this was hard to accept, given that the mother knew that the applicant’s father was a violent man, and given the applicant had already left his house once after the father tried to get her circumcised – a practice the applicant’s mother did not approve of. The applicant replied that it was a man’s world in Nigeria. The applicant said that in response to her mother, she did move back to her father’s. However, he kept on about circumcision and the atmosphere was very tense and argumentative. She told her father that she had a boyfriend whom she would marry. She moved out again, back to the boyfriend’s, apparently not long after she moved in.
The Tribunal asked if the father ever met [name], the boyfriend, and the applicant said he did not. Nor had they had discussions about bride price as mentioned in the original statement of claims. The Tribunal asked if she was contacted by her father after moving out. She said that her father had telephoned her mother asking her whereabouts but her mother did not give [Boyfriend A’s] address to the father.
The Tribunal asked if anything further happened with her father. She said that two men tried to grab her and forcibly return her to her father but they let her go as she was visibly pregnant. The Tribunal put it to her that if she were visibly pregnant, this must have occurred in mid-2016 (as she had written in her original statement of claims). However, she had just stated that she moved out of her father’s house after the tensions of living there not long after she started working at the [business 1] – that is, in 2014. The Tribunal asked if she was saying that she had heard nothing from her father for two years, then suddenly he sent two men to abduct her. She agreed that was what she said. She could not offer an explanation for why her father had had no contact at all for two years but then escalated the situation into an abduction scenario. She did not repeat the claim that an associate of her father had spoken to her a month before the alleged abduction attempt.
In her initial written claims, the applicant said that she continued to live with her boyfriend at his house after the abduction attempt although she went to his sister’s to give birth to the paper in November, then returned. She also travelled to another state in December to sit the IELTS test for which she had started studying while doing her national youth service. The applicant submitted her IELTS certificate which indicates that she sat the exam on [date].
A short time later, (hence early December 2026), the applicant received a telephone call in which a man said he was warning her that her father was sending men to kill her, her boyfriend and their [child] because she had been so stubborn. She prevailed upon her boyfriend that they should all leave the house immediately. They packed up and caught a bus for a [journey] to Ibadan in Oyo State where the boyfriend had a friend who would accommodate them.
On [a day in] December 2016, the applicant and her [child] were out shopping and on returning heard sounds of a violent argument involving the applicant’s boyfriend and other men who seemed to be asking where his wife and [child] were. She waited, not entering the house, and heard screams. She waited about 20 minutes then entered the house to find her boyfriend on the floor, soaked in blood. She was very frightened so collected some documents and [her child’s] things and left the house, going to the coach station from where she called the boyfriend’s sister on the pay phone (she had left her mobile in the house). She caught a coach to Lagos but on arrival, knowing no-one there, she went into a church and sat and cried.
Several people including the pastor or the church came to help her and found her accommodation with one of the parishioners, a woman called [Ms A]. Over the next few months, they helped her get a student visa to Australia using her IELTS results, and with the church assisting her to pay her airfare. She departed in May 2017, leaving her [child] with [Ms A].
At the hearing, the Tribunal went carefully over the details of the applicant’s claims since the time of the alleged abduction attempt in June 2016. The applicant said she remained in [Boyfriend A’s] house with no further problems until November when her baby was due and she went to [Boyfriend A’s] sister where she gave birth in the local hospital. The Tribunal notes the baby’s birth certificate on the departmental file showing the birth date as [date]. Also on file is the applicant’s IELTS certificate from an exam taken in [City 1] on [date]. The Tribunal asked why she had travelled so far ([City 1] is in a different State and perhaps [distance] south) so soon after the baby’s birth. The applicant said that she had booked an appointment to take the test some months before and she did not want to lose the opportunity. She had also obtained a passport [earlier in] 2016 so that she had identification for the exam.
The applicant said that a short time after she returned home from [City 1], she received a phone call. She did not know the caller but he said that her mother had been kind to him and so he thought he should warn her that her father had threatened to kill her and her [child] as she had refused to be circumcised. The Tribunal put it to her that this was difficult to believe: that a person whom she does not know calls her on her private mobile number to tell her this story. She asserted this was so. The Tribunal asked what she did. She said she spoke to [Boyfriend A] and, like her, he was sufficiently accepting of and worried about this threat. They immediately decided to leave their house and go a long way away. They departed at once and went to Ibadan where [Boyfriend A] said he knew someone who could find them accommodation.
The Tribunal put it to the applicant that this sudden departure seemed an over-reaction to an anonymous phone call given that she had had no trouble with her father since mid-year (if the alleged abduction attempt was connected to her father); and that Ibadan was very, very far away – over [distance] to the west. The Tribunal also put it to the applicant that her father had consistently said that she must be circumcised before marriage and hence traditionally before having a baby – now that she had given birth, it was surely too late for her father to pursue his wish for her to be circumcised. The applicant asserted that she felt the telephone call to be true and that she was able to impress the gravity of the threat on [Boyfriend A]; that Ibadan was chosen precisely because it was so far away; and that having failed to have his daughter circumcised before childbirth, her father had now moved on to the plan of killing her and the [child] as punishment for her disobedience.
They settled into accommodation in Ibadan and the applicant and her [child] went out to do some shopping. When they got back to the house, but before entering, the applicant heard loud shouting between [Boyfriend A] and two men. She heard one of the men say “where is your wife and [child]?” and words about being killed and circumcision. She waited unseen until it was all quiet. In answer to the Tribunal’s question, she said she did not see anyone leaving the premises. When it was quiet, she looked in a window and saw [Boyfriend A] on the floor in a pool of blood. She was very frightened and just wanted to get away quickly, so she went in and grabbed a few things for the [child] and went to the coach station. The Tribunal asked her if [Boyfriend A] was dead: she said she did not know. The Tribunal asked if she called anyone to assist – for example, the ambulance; or even the neighbours. She said that they don’t have ambulance services and she just wanted to get away.
The applicant called [Boyfriend A’s] sister before catching the coach to Lagos. The Tribunal asked if she phoned the sister again at a later time to ascertain what had happened to [Boyfriend A], given that she (the applicant) had left him not knowing if he were dead or alive. She said that she phoned the sister later from Lagos and the sister confirmed that [Boyfriend A] was dead. The Tribunal said that this meant the sister had travelled from Imo State to Ibadan and the applicant confirmed this. The Tribunal asked if the sister had said anything about the cause of death, or what actions had been taken after the death, or if any enquiries were made to determine who killed [Boyfriend A], or if there was a funeral: the applicant said that the sister had not said anything about these matters. She said that the sister was angry with her (the applicant) indicating that she was in some way responsible for [Boyfriend A’s] death and that the sister had then hung up on her and blocked any further phone calls from the applicant’s number.
The Tribunal asked the applicant who provided the death certificate for [Boyfriend A]. She said it was [Boyfriend A’s] sister. The Tribunal asked how the applicant obtained it if [Boyfriend A’s] sister had ceased communication and blocked her phone calls shortly after the applicant arrived in Lago (2016), noting that the death certificate had not been applied for until [later in] 2017 – the time the applicant was starting to apply for her protection visa. The applicant replied that she rang the sister from Australia and because it was a strange phone number (that is, not one the sister would recognise), she answered the phone. The Tribunal noted that the sister not only spoke to the applicant but went to the trouble of obtaining the death certificate as the date on it showed that it had only been issued [later in] 2017 although the date of [Boyfriend A’s] death was given as [the day in] December 2016. The applicant said that they had a conversation and the sister agreed to send the death certificate.
At hearing, the applicant concluded her story consistent with the written claims: that unknown but kind people at a church in Lagos – one into which she had stumbled after getting off the coach from Ibadan – helped her. Over the next five months, they fed and clothed her and the [child], accommodated them, found out about student visas to Australia, filled in all the appropriate forms, raised the airfare, and agreed to look after the [child] in her absence. The Tribunal asked why she did not bring her [child] to Australia and she replied that it was the expense. The Tribunal asked if she actually studied after arriving in Australia. She replied that she found that the college in which she had been enrolled was in Brisbane, and having arrived in Sydney, she could not afford to go to Brisbane. She maintains telephone contact with [Ms A], the church member who has ben caring for her child for the last eight years. The Tribunal put it to her that the story sounded implausible. The applicant did not elaborate.
The Tribunal put it to the applicant that it was almost eight years since she left Nigeria. She has had no contact with her father. The country information about female genital mutilation in Nigeria indicates that it is usually done in childhood but at any rate before marriage and childbirth (see below at paragraph 51). The Tribunal put it to her that it was implausible that her father would pursue her in future to undergo circumcision when she was now an adult woman of [age] and with [an age]-year-old son. The applicant replied that her father would still want her to have a circumcision because he is [an Official 2] and this is his tradition. He would wish to punish her for defying him. The Tribunal put it to her that she is not identified with his traditional community, perhaps not even known to them, having spent very little time over the past [number] years at his house: none whatsoever during the first [number] years and none at all in the last decade or so. Even on her own account her intermittent association with her father and his circle did not begin until [2009], and concluded in 2016. She stated that she would not feel safe in Nigeria, claiming that her father found her even though she had moved far away: she was referring to the two people she claimed her father sent to kill her in Ibadan but who killed [Boyfriend A] instead.
The applicant’s representative asked for a period of two weeks to make a written submission. When the submission arrived, it stated that the applicant’s father “is still the [Official 1]” (he had hitherto been referred to only as [an Official 2]) and would lose face in front of his community. It further states that “the punishment for disobeying the culture and tradition of the land is death”. The representative concluded by saying that the applicant may be able to live in Lagos with the support of the church community there, but she fears that “her father would eventually find her and administer the punishment to her for disobeying him”.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
On the basis of her passport, the Tribunal accepts that the applicant is a Nigerian national and that Nigeria is the receiving country in this case. On the basis of a birth certificate, it accepts that she is the mother of a boy now aged [age] who is not in Australia and who the Tribunal has no reason to doubt is still in Nigeria.
The Tribunal had a number of concerns with the applicant’s testimony which it put to the applicant at hearing. Her representative said that she and the applicant would discuss these concerns and make a written submission after the hearing. The submission was very short and did not address many of the concerns.
The Tribunal accepts that the applicant was raised by her mother and grandmother in the absence of her father; that she attended university for [number] years and lived on campus; and that she subsequently spent a year in another state fulfilling her national service obligations. The Tribunal notes that these latter claims are supported by documentation. It accepts that her grandmother died while she was at university and that after this time the applicant’s mother suggested that she should become acquainted with her father – the reason suggested (that the father might be required for future marriage arrangements) sounds plausible.
The Tribunal accepts that the applicant went to her father’s house during a university holiday about [year range]. The Tribunal accepts that the applicant’s father raised the subject of female circumcision with her and that she rejected this outright. It was not something that had ever been contemplated during her upbringing. The Tribunal is prepared to accept that while she was at her father’s house, he hired a practitioner of female circumcision and that the applicant ran away from this woman and left her father’s house, refusing to undergo this procedure.
Given the applicant’s mother’s views on female circumcision – she was against it and had never suggested that the applicant should undergo it – the Tribunal finds it hard to accept that the applicant’s mother should tell the applicant to return to her father in 2014 when the applicant was already an adult woman of [age] and had been living independently since starting university in [specified year]. This is even more difficult to accept when the applicant has stated that her mother knew her father to be a violent man capable of domestic violence and also knew that he had previously engaged a circumciser to perform a procedure on the applicant. The Tribunal does not accept that the applicant moved back to her father’s house in 2014.
The Tribunal notes the vagueness of the applicant’s testimony about the time she was supposedly with her father in 2014 and the discrepancies with the account of the same period in her initial written statement. She first wrote that she saw the circumciser again near her father’s house when she staying there and immediately told her mother, but her mother was reassured by denials from the applicant’s father and sent the applicant back to her father’s house. This is implausible given the mother’s views as set out in the paragraph above; and it was not a claim that was pursued at the hearing. The applicant also wrote initially that in the year or so that she was staying at her father’s, he was negotiating with her boyfriend about a bride price and other arrangements and generally prevaricating about the wedding. The applicant stated the opposite at hearing: that her boyfriend had not met her father and had never spoken to him about anything, let alone arrangements for a wedding.
On all the evidence, the Tribunal is not satisfied that the applicant stayed with her father after she fled from his house in [year range]. It follows that the Tribunal is not satisfied that the applicant’s father offered her accommodation in 2014, that she accepted and stayed for some time, then left. The Tribunal finds it a far more plausible story that she took up with her boyfriend while she was still at university and often stayed with him during [year], the year before she went away to do her national service; that she returned to him after this year; that he found her a job in 2014 and they cohabited; that she became pregnant to him in early 2016 and had the baby – putting the boyfriend’s name on the birth certificate as the father – in late 2016. All of this is consistent with her testimony both in writing and at hearing. It simply excludes the father from having any role in the applicant’s life.
On all the evidence, the Tribunal is not satisfied that the applicant’s father sent two men to abduct her in mid-2016 – two men who did not carry out the abduction because they saw she was pregnant. It rejects the claim that she approached just prior to this ‘abduction’ by an emissary from her father saying she must undergo circumcision: the Tribunal notes that it was not a claim she raised or pursued at the hearing despite ample opportunity. The Tribunal does not find it plausible that an unknown man telephoned the applicant in December 2016 and said he was warning her that her father was going to kill her and the [child] because she had not been circumcised. The Tribunal does not find it plausible that on the basis of this phone call, the applicant and her boyfriend immediately left their house and travelled, with the [child], over [distance] to a city where the boyfriend had a friend whom he thought might help them with accommodation. The Tribunal rejects these claims.
The Tribunal also finds it implausible that two men allegedly sent by the applicant’s father were able to very quickly locate the applicant and her boyfriend in this house [distance] away despite the fact that the applicant and her boyfriend had left their home town hurriedly and in secret. The Tribunal also finds it implausible that the two men themselves travelled this distance to find the applicant but not finding her set upon the boyfriend inside the house and left him in a pool of blood. The Tribunal finds it implausible that the applicant heard this encounter – hearing them say they were looking for ‘the wife and [child]’ – but did not see them depart the premises; and that she entered the premises and rendered no assistance to her partner whom she did not know was alive or dead; but instead she collected a few items and departed, taking a coach to yet another strange city where she knew nobody. The Tribunal rejects this story in its entirety.
The Tribunal also finds the applicant’s completion of this story to be implausible: that on arriving in Lagos and knowing no-one she went to a church where a group of kindly parishioners took her in; completely supported her and her [child] for the next five months; made all the arrangements for her to get a student visa for Australia; subsidised her airfare to Australia and agreed to continue caring for the [child] (which they have done for nearly eight years). The Tribunal rejects this story.
The Tribunal is not satisfied on all the evidence that the applicant’s father has concerned himself with the applicant’s circumcision (or lack of it) since she refused his attempt to have her circumcised in [year range]. The Tribunal is not satisfied that he has made attempts since that time to abduct her and make her have the circumcision. The Tribunal notes that the applicant testified that the father said a woman had to be circumcised before she married and before she had a baby. When the Tribunal put it to her that she had already had a baby and hence the father would have to drop the demand, she said that he would insist she still undergo the procedure because it was traditional. She also said that her father now believed that he had to kill her and the [child] because of her disobedience and her breaking what he believed to be customary tradition.
The Tribunal had referred to country information about circumcision during the hearing. The material – where circumcision is correctly described as female genital mutilation/cutting (FMG/C) - is as follows:
Although illegal and in decline, FGM/C continues to be practised in Nigeria. According to a National Bureau of Statistics/UNICEF report published in February 2018, over 18% of women aged 15-49 had undergone some form of FGM/C …82% of those who had undergone FGM/C had done so before the age of five.[1]
[1] DFAT, Country Information Report: Nigeria, 3 December 2020, para. 3.90.
The same National Bureau of Statistics/UNICEF report also gives statistics relating to Igbo women and the south-east area of Nigeria, both relevant to the applicant: the FGM/C prevalence rate is 33% in the south-east and 29% among Igbo women.[2]
[2] Ibid.
There is nothing before the Tribunal that indicates that circumcision is pursued and carried out on older women who have already had children and been married (albeit a de facto marriage in the applicant’s case). There is nothing before the Tribunal to support the contention that “the punishment for disobeying the culture and tradition of the land is death” as put, without any supporting evidence, in the applicant’s post-hearing submission. The Tribunal is satisfied that the applicant’s father made one attempt to impose the harmful procedure on her over 16 years ago: this is in keeping with the independent information above that it is not uncommon for Igbo girls and women in the southeast (traditional Igbo territory) to undergo FMG/C, mainly in childhood. The Tribunal is not satisfied that any further attempt has been made to harm her.
The applicant did not undergo circumcision or FGM/C in the past. On the evidence, the chance that this harm will befall her in the reasonably foreseeably future is remote, as is the chance that she will be killed for failing to undergo FGM/C. She has made no claims, nor does the evidence suggest, that she fears any other sort of harm except harm related to her father’s views on circumcision, or for any reason apart from being his daughter. The Tribunal is not satisfied that there is a real chance that serious harm amounting to persecution will befall the applicant for one of the reasons specified in s 5J(1)(a) of the Act or any other reason.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution and finds that she does not meet the definition of refugee as set out in s 5H(1)(a).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion.[3]
[3] MIAC v SZQRB [2013] FCAFC 33.
For the same reasons as given above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm because of not having undergone circumcision; or for any other reason.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Nigeria, there is a real risk that she will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hearing:17 January 2025
Representative: Ms Jeri Levinsky (MARN: 0214675)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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