1929870 (Refugee)

[2023] AATA 4645

1929870 (Refugee) [2023] AATA 4645 (1 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929870

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Wayne Pennell

DATE:1 December 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 December 2023 at 12:16pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – religion and political opinion – advocate for rights and education for girls and women – threatening notes and phone calls – return for mother’s funeral – delay in applying for protection – no corroborating statement from husband or any other supporting evidence, and no recent calls – membership and low-level activity in political party while in Australia – country information – fear of harm not well-founded – qualifications and professional employment in remote area – references and supporting statements, and national labour shortages – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIEA v Guo Wei Rong (1997) 191 CLR 559
MIAC v SZQRB [2013] FCAFC 33
Re Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Zhang Su Rong v RRT [1997] FCA 423

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 18 October 2019.

2. The applicant, who claims to be a citizen of Nigeria, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Nigeria, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and, therefore, she was not a person in respect of whom Australia has protection obligations.[4]

   [2]The applicant’s application was received by the Department of Home Affairs on 9 February 2017.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] At a subsequent time,[6] the Tribunal advised her that it had considered all the material relating to the application but was unable to make a favourable decision on that information alone. She was invited to attend an in-person review hearing scheduled for 1 November 2023. The applicant accepted that invitation and attended the scheduled hearing. She was not represented throughout the review process.

   [5]The applicant’s review application was filed with the Tribunal on 21 October 2019.

   [6]On 14 September 2023.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act[7] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[8] That is, the applicant 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.

   [7]Migration Act 1958 (Cth), s 36.

   [8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

5. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[9]

   [9]Migration Act1958 (Cth), s 36(2)(a).

6. 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.[10] 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.[11]

   [10]Migration Act1958 (Cth), s 5H(1)(a).

   [11]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that 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, and 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.[12] 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 the Act, which are extracted in the attachment to this decision.[13]

   [12]Migration Act 1958 (Cth), s 5J(1).

   [13]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

8. If a person is found not to meet the refugee criterion in the Act,[14] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[15] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[16]

   [14]Migration Act 1958 (Cth), s 36(2)(a).

   [15]Migration Act 1958 (Cth), s 36(2)(aa).

   [16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

9. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[17]

   [17]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

10. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[18]

    [18]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

11. The applicant claims to be a citizen of Nigeria and provided a copy of her passport to authenticate this claim.[19] The Tribunal accepts her identity, and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[20]

    [19]The Applicant’s passport was issued by the Nigerian Consultant in Canberra [in] 2022.

    [20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

12. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[21]

    [21]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No. 84 made under the Act,[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    APPLICANT’S BACKGROUND AND CLAIMS

    [22]Migration Act 1958 (Cth), s 499.

    Background

14. The applicant did not provide a statement or a statutory declaration, but instead opted to give oral evidence at the review hearing. Noting that, the Tribunal is not required to make the applicant’s case for her, and it is her responsibility to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of her claims, or to establish or assist in establishing those claims.[23] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[24]

    [23]Migration Act 1958 (Cth), s 5AAA.

    [24]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

15. Within her application for a protection visa, she initially focused her information on a claim relevant to her having a well-founded fear of returning to Nigeria because of her religion. Subsequent to her application, she later raised a further claim in respect to her political profile.

16. The applicant has a lengthy migration history in Australia and, for completeness, the following chronology is provided:

    5 November 2013        Granted a student (subclass 576) visa.

    [January] 2014             Arrived in Australia.

    [December] 2014         Departed Australia.

    [March] 2015                Arrived in Australia.

    [July] 2015Departed Australia.

    [August] 2015              Arrived in Australia.

    13 November 2015      Granted a bridging A (subclass 010) visa.

    13 January 2016          The student visa granted on 5 November 2013 expired as well as the bridging A visa granted on 13 November 2015. She was granted another student visa.

    26 April 2016               Bridging A visa granted.

    27 April 2016               Student visa granted on 13 January 2016 expired.

    2 February 2017          Bridging A visa expired.

    3 February 2017          Bridging E visa granted.

    9 February 2017          Applied for a protection visa.

    17 February 2017        Bridging E visa expired and another bridging E visa granted which is still in effect.

    20 September 2019     Interviewed by the delegate.

17. The applicant was born in Nigeria and identifies as Igbo ethnicity. She is a Muslim and was raised by her father. She only met with her mother in 2013 and unfortunately they had not long reunited when her mother passed away in 2015. Since then, her father has also passed away. She has many siblings and described that she has [siblings] from her father’s side of the family, and [siblings] from her mother’s side. None of those siblings live in Australia. In 2001, she married her husband and they have [children], who are now aged [Ages]. In 2019, she and her husband divorced.

18. She is well educated, and completed primary, junior and secondary education in Nigeria before going on to attend university where she attained a Bachelor’s degree in [Subjects]. After being awarded a scholarship with [University] in [State 1, Australia], she travelled to Australia in 2014 and studied [Subjects]. Her scholarship was originally for two years, however that was extended until April 2016. It was the applicant’s plan that when she finished her education, she would return to Nigeria so that she could continue to encourage the education of young Muslim women.

19. The applicant explained that as part of her studies at [University], she departed Australia [in] December 2014 and returned to Nigeria to undertake some data research as part of her university dissertation. At that time, she was still married to her former husband, and upon her return to Nigeria, she stayed in the family home with her husband and their [children].

20. It was during this trip back to Nigeria that events occurred which form part of her claims for protection. On two separate occasions she found handwritten notes on the windscreen of her car. After she returned to Australia, her husband, who remained in Nigeria, received threatening telephone calls about the applicant from an anonymous person. Those claims are discussed in greater detail later in these Reasons.

21. After finishing her university studies in [City 1], she started working for a non‑government organisation (‘NGO’) which provided [services]. Her employment was initially as a casual [worker], but after about 10 months, she moved to a more permanent full-time position as a support leader with the same NGO.

22. In 2021, she moved to the remote rural location of [City 2] in [State 2] and was employed by [Employer]. [Employer]’s core business is the delivery of [services].

23. In regard to her employment in both [State 1] and in [City 2], the Tribunal accepts the evidence contained within the references provided by her former and current employers where they say that she was a highly regarded, motivated and respected employee.

    Claim – religion

    Written threats

24. The applicant explained that in conjunction with her studies at [University], she departed Australia [in] December 2014 and returned to Nigeria to undertake research for data as part of her dissertation for her Master’s degree. At that time, she was still married to her former husband and she stayed in the family home with him and their [children].

25. She claimed that she was invited to be a guest speaker at [an Event in] Nigeria. That event was scheduled for [February] 2015 and her speech focused on her understanding of different schools of thoughts relating to Muslim education in general, and more particularly about the education of Muslim girls.

26. The applicant claimed that on two occasions she found handwritten notes on the windscreen of her car. On both occasions her car was parked outside her family home [where] she was staying with her husband and [children]. She did not keep the notes, instead she crumpled them up and threw them on the ground. When asked at the review hearing to describe the notes, she said that they were both written on ruled paper similar to a school student’s exercise book. The words written were in very good English with correct grammar, however the handwriting was very untidy.

27.    She found the first note [in] February 2015 as she was preparing to travel to [Region of] Nigeria. This note warned her ‘stop corrupting the minds of Muslim women with so‑called Western Education’. She explained that although she was concerned about the first note, she simply thought that someone was jealous of her being educated in Australia.

1. [In] March 2015, she was getting ready to leave for the [Region] of Nigeria when she found the second note. This note accused her of being a non-believer and warned her that she will be dealt with on her return to Nigeria. She told the Tribunal that when she found the second note, she was shocked and feared for her safety and believed that the ramification of being branded a non‑believer meant that she was marked for death.

2. At this point the Tribunal will take the opportunity to assess the wording of the second note. If it indeed did suggest that she would be ‘dealt with’ upon her return to Nigeria, this would suggest that the author of the alleged note was aware of or at least appraised in some way that she intended to leave Nigeria and would be returning sometime in the future. Notwithstanding that she found those notes, and she now claims that she fears returning to Nigeria because of them, she remained in Nigeria to collect the data that she needed for her studies. Her departure from Nigeria occurred a few days after she had discovered the second note.

3. The applicant’s immigration record shows that [in] July 2015, she departed Australia and returned to Nigeria to attend her mother’s funeral. She explained that she had separated from her mother when she was very young and was raised by her father. It was only a few years prior to her mother’s death that the applicant reunited and reconnected with her.

4. She told the Tribunal that she landed at Lagos and then travelled to the location of her mother’s [funeral]. She explained that although she went to that locality to pay her respects to her late mother, because Muslim women do not actually attend the funeral services, she did not go to the service. Others that attended the funeral were immediate family, extended relatives, many members of the public, as well as spiritual leaders. The applicant did not experience any threats during the time that she was in Nigeria for her mother’s funeral and she returned to Australia [in] August 2015.

   Phone calls received by her former husband

5. The applicant claimed that her former husband received phone calls from an anonymous persons using a privately listed telephone number. The calls were about her. In her application, she claimed that there was a series of private number phone calls being received by her husband where the anonymous caller challenged his Islamic beliefs as a Sunni because he allowed his wife to travel alone abroad, and worse still, she did it for the purpose of acquiring further western education. She claimed that the caller referred to her as a takfir. She also claimed that her husband was further warned that they would make sure the applicant never used the acquired education to corrupt the minds of the believing Muslim women.

6. The applicant went on to claim that with more Boko Haram members displaced and presently heading South West as a result of the military operation under President Muhammadu Buhari, she held a well-founded fear that she would be hacked down to death by the radicalised person or persons that has been issuing these threats.

7. The Tribunal observes that the DFAT Country Information Report on Nigeria (‘DFAT report’) provides that Boko Haram is a radical Islamic movement that seeks to impose a strict form of sharia or Islamic law, in northern Nigeria. The term ‘Boko Haram’ means ‘western education is sinful’ in the Hausa language and the movement forbids Muslims from taking part in political or social activities associated with western society including voting in democratic elections or receiving a secular education.

8. The DFAT report explained that Boko Haram was initially a fringe movement, which provided social and financial help to Muslims and called for strict observation of sharia. The group transitioned into an insurgency in 2009 following the extrajudicial killing of its founding leader, Muhammed Yusuf, when tensions with government security forces escalated over the application of sharia law in the north-east states of Borno, Yobe and Adamawa. Since 2009, Boko Haram has attacked individuals seen as supporting the government, including police, military and politicians; individuals seen as supporting ‘western’ concepts including secular education; and Muslims that do not support its cause.[25]

   [25]The DFAT Country Information Report, Nigeria, 9 March 2018, page 12, paragraphs 2.37 to 2.38.

1. When the applicant spoke to the Tribunal about the alleged phone calls her husband received, she said that she was in Australia when her former husband told her about those phone calls. She claimed that the calls were threatening, but she could not remember exactly when her former husband told her about the calls, but she was certain that it was after March 2015 when she left Nigeria to travel back to Australia. She also said that he told her ‘occasionally’ during their phone calls sometime between 2015 and 2017. She went on to claim that her husband told her that he did not think that it was safe for her to come back to Nigeria when she finished her studies because of the phone calls he received.

2. Although the applicant alludes to a connection between those alleged phone calls to some type of militant, Muslim extremist or some other connection associated with Boko Haram, the Tribunal’s view is that given the alleged calls originated from an anonymous source on a private unlisted phone number, and she does not claim that her husband was told that the caller was connected with Boko Haram, there is a distinct lack of evidence to support this claim.

   Discussion – written threats and husband receiving telephone calls

3. It is evident that by the time the applicant lodged her application for a protection visa with the Department on 9 February 2017, the only issues she claimed that caused her a concern involved the handwritten notes which were left on her car, and the phone calls she said her husband received.

4. When carefully assessing the alleged circumstances and the claims about this matter of the handwritten notes, the only evidence the applicant relies upon to authenticate this claim is her own testimony.

5. Her application was made almost two years after she claims the handwritten notes were left for her; and it appears that the first of the alleged concerning phone calls received by her husband was in 2015. In that respect, there was a significant amount of time which lapsed from when she first became aware of the handwritten notes and the phone calls to when she applied for protection. The issue relating to the applicant’s delay in making her application is discussed in greater detail later in these Reasons.

6. The Tribunal notes that her husband is the only other person who could have corroborated her version of events surrounding the handwritten notes and the phone calls, and by the time her application was made in 2017, no statement or statutory declaration was obtained from him about those two matters. Although she was later interviewed by the delegate on 20 September 2019, and she and her husband divorced in December 2019, it seems that between when her application was lodged and those two events in 2019 she did not take the opportunity to obtain a written version of the events from her husband.

7. Another feature of the applicant’s case considered by the Tribunal was the frequency and the number of the telephone calls she said her husband received. To assist the Tribunal, the applicant provided a transcript of her interview with the delegate. Within that transcript, it shows that she was questioned about those phone calls her husband received. She told the delegate that her husband received three to four phone calls in 2015 from an anonymous source which she considered to be of concern. Since then, there have been no other calls and her family in Nigeria did not experience any other threats of harm. That information is supportive of what she told the Tribunal at the review hearing.

8. When carefully assessing the information provided by the applicant about the written notes and the phone calls, apart from her own testimony, there is no other probative or tangible evidence to corroborate her claims. Notwithstanding that, even if the Tribunal were to ultimately accept her testimony about the notes left on her widescreen and the phone calls her husband received, it appears that for the past eight years there has been no repeat of what had occurred in 2015, and during her return visit for her mother’s funeral, she did not experience any concerning behaviour by anyone else.

   [Social media] post 2018

9. The applicant’s [Social media] profile was established when she lived in Nigeria, and she is still operating that same account. Although, since her divorce in 2019, she has updated her profile and changed her name. Notwithstanding the variances in her name, she is still recognisable by the name and profile photo she currently uses.

10. Her concern relates to a post made on her [Social media] account in November 2018 and the basis of her claim focuses on a single one-off event which occurred five years ago. Although she claimed that she was fearful of what was posted, she did not close down her account and nor is there evidence that she ‘blocked’ the person or the profile that made the comment she was concerned about. It seems that instead, she continued to engage with this person. In the Tribunal’s view, this indicates that she was not concerned, or did not have a well-founded fear about what was posted on [Social media].

    There is no evidence that suggests that, apart from that occasion in November 2018, there have been other concerns that she has raised about comments made on her [Social media] profile. Therefore, because of that very limited exchange on [Social media], the Tribunal does not accept her claims that the comments made on her [Social media] profile are credible with respect to her argument that she was threatened because she promoted western education among young Muslim women.

    Claim – political profile

11. The applicant said that when she lived in Nigeria, she did not have a political profile. The Tribunal accepts this, and when assessing her testimony, the Tribunal is satisfied that she did not engage in any political activities in the time that she lived in Nigeria.

12. The applicant explained that she now has a political profile because of her association with the African Action Congress, which is a Nigerian political party founded in 2018 by Omoyele Sowore (‘Mr Sowore’). He contested the 2019 and the 2023 Nigerian general elections.

13. In support of her claim that she has a political profile, the applicant provided to the Tribunal a letter from Mr Sowore. The Tribunal accepts that the letter was the original and authentic letter from him because the applicant presented the letter sealed inside an unopened courier envelope delivered from Nigeria. Accompanying Mr Sowore’s letter of support for the applicant was a photograph showing three people posing for the photo, including the applicant and Mr Sowore.

14. The contents of Mr Sowore’s letter are accepted so far as the applicant’s involvement with the African Action Congress in Australia in that it confirmed that she is a registered member of the political party and that she was one of the organisers for his 2018 town hall meeting in [a location in Australia].

15. In August 2019, Omoyele Sowore (‘Mr Sowore’), who is described as a former presidential candidate, political activist, and founder of Sahara Reporters, was arrested. In August 2018, he founded the African Action Congress party and ran as its presidential candidate in the 2019 Nigerian general election. He also ran for President in the 2023 Nigerian general elections.[26]

    [26]>

    The DFAT report further provides that while #RevolutionNow protests took place in Lagos, Osun, Ondo and Cross River states in the second half of 2019, international observers reported that none were attended by more than a few hundred participants, who in many cases were outnumbered by security forces. When protests in Lagos and Osun became violent, police used tear gas to disperse protesters, and also arrested protesters in Lagos, Osun, and Cross River. To DFAT’s knowledge, there have not been any subsequent #RevolutionNow protests.[27]

    [27]The DFAT Country Information Report, Nigeria, 9 March 2018, page 28, paragraph 3.35.

16. The applicant explained that it was only after she lodged her application for a protection visa that she became politically involved with the African Action Congress. She also said that she was instrumental in organising a ‘town hall meeting’ for Mr Sowore when he visited Australia in October 2018. Soon after the town hall meeting, she posted a comment on her [Social media] profile where she said:

    [Deleted].

17. The applicant provided to the Tribunal a copy of that [Social media] post which is dated [November] 2018. At the time that it was printed, there were 105 responses made to her comment and it seems, at least from the evidence provided by the applicant, that there was only ever one response that caused her any concern. That response said:

    [Deleted].

18. Similar to the Tribunal’s observations about the written messages left on the windscreen of her car and the small number of phone calls her husband received, there does not appear to have been a continuing or a repetition of the comments on [Social media].

19. When assessing the applicant’s claims and the evidence in respect to her actual or imputed political profile, the Tribunal notes that apart from organising the town hall meeting for Mr Sowore, it does not appear that she is otherwise involved in any political activism. Nor has she ever been involved in any political demonstrations against the Nigerian government or written any letters of complaint about the government or the government authorities, or attended any political meetings, gatherings or rallies.

20. The comment on her [Social media] profile was posted five years ago, and apart from the occasion when the comment was made, there has never been a repetition of any such comment from either that same person, or some other person.

    APPLICANT’S ADDITIONAL COUNTRY INFORMATION DOCUMENTS

21. The applicant has provided the following articles to support her claims:

    (a)On 16 May 2022, an article was published describing the murder of a Muslim cleric, along with his wife and four children. The cleric was described in the article to be a peace loving, humble and caring individual, killed by people who the authorities described as hoodlums. The Tribunal observes that there was no reference made to any political or religious associations in relation to those murders as the news report outlined that the attackers, whose motive could not be ascertained, butchered the entire household with machetes.

    (b)Article outlining that eight members of the youth vigilante group, known as the Civilian Joint Task Force, had been arrested by Nigerian Army troops for aiding the activities of Boko Haram. Those arrested were said to be supplying logistics and welfare items to the Boko Haram.

    (c)2023 report from Freedom House including information about high levels of violent crime by non-state actors, including Islamic militant groups, which persisted throughout the year and affected people across Nigeria.

    (d)October 2023 article relating to atheist or non-believers being treated as second‑class citizens in the deeply religious country of Nigeria, and there were references to the killing of people for blasphemy in northern Nigeria.

    (e)May 2022 news article on the death of Deborah Samuel, a student who was publicly killed by her fellow students who videorecorded her death. The Tribunal is aware that other news articles outline that the victim was an economics student and was stoned and set ablaze by co-students, who are Muslim, for sending a voice note alleged to be blasphemous against the Prophet Muhammad. Two suspects were arrested shortly after the event for her murder, however their charges were later struck out.

22. The Tribunal acknowledges that the applicant has provided those articles consisting of country information in support of her claims. When a very careful assessment of the information contained in the articles is made, it is evident that they each hold information in respect to violence in Nigeria which is in some way connected to religion or religious beliefs.

23. However, notwithstanding the Tribunal acknowledging that there are instances of violence recorded in respect to Nigeria, it is not accepted that the country information the applicant provided is probative in respect to her claims. Therefore, no weight is placed upon the contents of those articles.

    DELAY

24. The Tribunal recognises that the applicant’s travel to Australia was subject to a student visa. The concerning occurrences claimed by the applicant which are the catalysis for her application for a protection visa transpired in 2015, which is prior to the time when her protection visa application was lodged. The Tribunal also recognises that her application appears to have been made when all avenues in respect to her student visa had been exhausted.

25. The applicant’s application was lodged on 9 February 2017, which is at least 21 months after those events surrounding the handwritten notes and the phone calls to her husband which she claims gave her a well-founded fear of returning to Nigeria. Although the Tribunal makes that observation in respect to that significant delay, it does recognise that her claims also relate to a [Social media] post made in November 2018 which relate to her political opinion. The latter claim occurred after she had lodged her application.

26. When assessing the chronology of events already laid out within these Reasons, the Tribunal is satisfied that the 21 months between the discovery of the handwritten notes and the phone calls to the time of lodging her application is a significant period of time. When considering that significant delay of 21 months, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

27. A delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety[28] and, as the Tribunal particularly notes from the applicant’s testimony, apart from an exchange of views over a [Social media] post in 2018, there have not been any other issues where the evidence supports her claims that she had a well-founded fear of returning to Nigeria.

    [28]     ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

28. The Tribunal has very carefully considered the significant period of a 21-month delay as explained above, and after carefully assessing all of the circumstances surrounding that delay, the Tribunal is satisfied that the noteworthy delay correlates with the significant lack of substance of her claims that she has a well-founded fear of persecution if she were to return to Nigeria. Therefore, the Tribunal finds that the delay in lodging her protection visa application adds weight to the finding that her claims do not appear to reflect the reality of her circumstances.

    RELOCATION

29. The applicant claimed that she could not relocate within Nigeria for her own protection because she would be targeted wherever she relocated to. She explained that she advocated for women’s rights in Islam and that she is considered by radical Muslim groups to be a kaafira and she would continue to be a risk wherever she lived in Nigeria.

30. The DFAT report provides for information in respect to the Economic Community of West African States (‘ECOWAS’) and it explains that ECOWAS is a regional grouping of 15 African nations focused on economic integration. Nigerians can freely enter the other 14 member states covered by the ECOWAS Treaty with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS nations.

31. The DFAT report also provides that Nigerians can apply for an ECOWAS Travel Certificate from a Nigerian Immigration Service office and applicants require less documentation to obtain the certificate than to obtain a Nigerian passport and movement within ECOWAS is generally free. While some countries have rules relating to residence permits, authorities rarely implement them. Porous borders, tribal links (people of the same ethnic background living in different ECOWAS countries), circular and cyclical migration, especially in the field of agriculture, and lack of knowledge of border laws allow the regular movement of Nigerians to and from other ECOWAS countries.

32. The DFAT report on ECOWAS provides that the applicant can legally enter and reside in another ECOWAS country, and having regard to the Tribunal’s findings regarding her not being a person in respect of whom Australia has protection obligations, the Tribunal makes no findings as to her entitlement to protection in another country.

    CONCLUSION AND REFUGEE FINDINGS

33. The definition of a refugee is provided within section 5H(1) of the Act, and it explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution.

34. The term ‘well-founded fear of persecution’ is provided within section 5J of the Act and this includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

35. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nigeria, there exists a real risk that she will suffer significant harm or there is a real chance that she would suffer serious harm; and whether she is a person in respect of whom Australia has protection obligations as defined in the Act.[29]

    [29]Migration Act 1958 (Cth), s 36(2).

36. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, that she claims she faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

37. When analysing her claims and what she claimed were her fears in respect to the handwritten notes on her windscreen, the calls made by an anonymous person to her husband and the post on her [Social media] profile; the Tribunal’s view is that the issues she raised in regard to those events are historical in nature and without any repetition of anything that has raised a concern with the applicant since 2015 (phone calls and handwritten notes) and November 2018 ([Social media] post).

38. Any determination as to whether the applicant has a well-founded fear involves both a subjective and objective assessment. In evaluating whether the applicant has a well‑founded fear, it is necessary to evaluate her mental and emotional state, in addition to the objective circumstances, and while the applicant may fear persecution, that fear must not all be in her mind, and there must be a sufficient foundation for the fear.[30]

    [30]Chan Yee Kin & Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

39. Mere speculation cannot establish a well‑founded fear, and as the High Court in Minister for Immigration and Ethnic Affairs v Guo Rei Rong & Anor determined, a fear of persecution is not well-founded if it is merely assumed or of it is mere speculation:

    Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well‑founded if it is merely assumed or if it is mere speculation.[31]

    [31]     MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.

1. In determining that fear can be well-founded without any certainty, or even probability, that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs recognised the principle determined by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[32]

   That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one. One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[33]

   [32]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.

   [33]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.

2. It is the applicant’s claim that she cannot return to Nigeria because of the claims already explored in these Reasons, and the Tribunal has observed that her claims centre around three particular alleged issues. Firstly, there was the discovery of handwritten notes on the windscreen of her car in early 2015. Secondly, she claimed that her former husband received a small number of phone calls from an anonymous source about her. Thirdly, in November 2018 she had posted a comment on her own [Social media] profile and a person responded by calling her a kaafira.

3. When assessing those first two claims about the handwritten notes and the phone calls to her former husband, careful consideration has to be given to the substantial delay of almost two years between when those events are alleged to have occurred to when she made her application. As the Tribunal has already identified in these Reasons, significant delay is not behaviour indicative of someone who fears for their physical safety.

4. In respect to the comment made on her [Social media] page, on the strength of the evidence before the Tribunal, that was a single one-off comment which the applicant has not again experienced. Although she has altered her name on her [Social media] profile, she is still operating the same account.

5. When careful consideration and assessment is applied to those features identified in these Reasons, the Tribunal is satisfied that the facts, circumstances and characteristics of the applicant’s claims lead the Tribunal to a finding that she is not a refugee as defined in section 5H of the Act, and nor has she satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to her circumstances.

   COMPLEMENTARY PROTECTION CONSIDERATIONS

6. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[34] the Tribunal has considered the alternative criterion.[35] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Nigeria, there is a real risk that she will suffer significant harm as it is defined in the Act.[36]

   [34]Migration Act 1958 (Cth), s 36(2)(a).

   [35]Migration Act 1958 (Cth), s 36(2)(aa).

   [36]Migration Act 1958 (Cth), s 36(2A).

7. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons she claims if she returned to Nigeria. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[37]

   [37]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

8. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Nigeria now or in the reasonably foreseeable future she will be arbitrarily deprived of her life, or the death penalty will be carried out on her, or she will be subjected to torture or to cruel or inhuman treatment or punishment, or she will be subjected to degrading treatment or punishment.

   CONCLUSION: REFUGEE CRITERION

9. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Nigeria. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

   CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

10. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Nigeria, she will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

11. 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 section 36(2)(a) of the Act.

12. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

13. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.

    MINISTERIAL INTERVENTION

14. The applicant has requested that the Tribunal refer her case to the Department for consideration by the Minister pursuant to section 417 of the Act which gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

15. Earlier in these Reasons, the Tribunal outlined the applicant’s qualifications and experience in the delivery of [services] in the remote rural location of [City 2] and the surrounding regions, including many First Nations communities in [State 2].

16. The applicant is actively engaging in meaningful employment with an NGO to provide those services as described. A significant portion of the people who are the subject of the services provided are inhabitants of remote rural locations, including First Nations [communities].

17. Notwithstanding the Tribunal’s findings that the applicant does not meet the refugee criteria as defined within the Act, the Tribunal identifies that easily recognisable in her characteristics is a willingness and eagerness to seek meaningful employment in rural, remote and disadvantaged regions of [State 2]. The Tribunal considered that to be commendable.

18. The Tribunal also notes the references she provided, in particular from her current employer. The contents of those references are encouraging, and the Tribunal considers that they will be beneficial when considering any referral.

19. To recap what was referenced earlier in these Reasons, the applicant’s employer in [City 2] is [Employer]. [Employer]’s website provides that since [Year], the company has had a long history of providing a large and diverse team of [professionals] to service the needs of communities in regional, rural and remote Australia, connecting to [communities] throughout [specified] areas, as well as [remote areas]. Within the area the company services, there is a significant population of First Nations people and numerous First Nations communities. The company’s website speaks of the company’s relationships based on genuine understanding of the local needs and cultural sensitivities of those communities and it is proudly involved in a significant part of the communities in which the company services, with a majority of the company’s teams living and working permanently in rural and remote locations with an understanding of the hardships and challenges often faced by living remotely.[38]

    [38][Reference].

20. The applicant’s roles with [Employer] are as the [Team Leader], but more recently she has moved into the role of Acting General Manager for [Job task] support in the communities in the [Regional] areas. For completeness, extracted from her employer’s reference is the following comments about the applicant:

    For over two years [the applicant] has been an invaluable member of our organization, dedicating her skills and expertise in her roles as a [Team Leader], and more recently as the Acting General Manager for [Job task] supporting underserved communities in [remote State 2]. Since joining [Employer], [the applicant] has shown strong leadership qualities, compassion, and outstanding dedication to her role and responsibilities.

    [Employer] is a prominent organization with a mission to deliver essential [services] to underserved communities across [rural and remote]. [The applicant] has played a pivotal role in our mission by coordinating and supporting our [employees] in delivering crucial [services] to discreet Aboriginal communities in these regions. Her commitment to duty and her ability to coordinate and support [the employees] in delivering services in challenging environments has been remarkable.

    One significant challenge in our remote locations has been high staff turnover, which can hinder the continuity of services. [The applicant]'s ongoing commitment and strong leadership skills have been instrumental in mitigating this challenge. Her deep understanding of the communities we serve, and her tireless dedication have made her an invaluable asset to [Employer]. [The applicant] 's unique skills and experience are crucial to the effective functioning of our organization and ensuring that our community receives the high-quality support they need. Her work has made a significant difference in improving the [Circumstances] of the communities and its people.

    Prior to [the applicant]'s arrival in 2021, our [department] struggled to find adequate personnel to support our community effectively. Her presence has brought stability and leadership that we hope to retain. Given her vital role and the ongoing need for her expertise, it would be extremely difficult to find a suitable replacement for [the applicant]'s position. We wholeheartedly support her appeal for a protection visa and respectfully request that she be given the opportunity to continue her important work within these communities. We firmly believe that supporting [the applicant] to remain in Australia will not only be in her best interest but also in the best interest of the underserved communities she serves. Her deep commitment to our mission and the communities we support should be recognized and celebrated.

    [The applicant] is not just a valued employee; she is a compassionate and dedicated individual who is passionate about making a positive impact on the lives of our clients. We have witnessed her outstanding contribution, and we wholeheartedly support her in her quest to continue serving the community in meaningful ways.

21. It is the Tribunal’s view that the applicant’s qualifications, skills and expertise should be recognised, and the comments made by [Employer]’s Executive Manager provide that the applicant is an integral part of the community in [City 2] and throughout her employment she has exhibited exceptional dedication and professionalism, contributing significantly to manage the successful provision of essential [services] to the region of [City 2], including remote First Nations communities. This has made her a popular and respected figure among staff and the people who receive those services.

22. Her employer speaks highly of her exemplary character and work ethic and the contributions she makes in the professional realm, and she has shown genuine care and concern for the betterment of services to regional and remote areas within the country.

23. The Tribunal is alive to the impact skilled migration can make during what is now a national labour shortage. The Tribunal also recognises that the attraction and retention of staff is a challenge in rural and remote communities, in particular where the applicant is located in [City 2].

24. Skilled migrants such as the applicant are making a valuable contribution to various rural and remote locations within Australia across all industries. Her contributions to remote [services] should be recognised and appreciated, and as her current employer has identified, it is a constant struggle to find adequate and suitably qualified staff to support those rural and remote communities, including those vulnerable First Nations communities.

100. Having regard to the applicant’s circumstances, and having considered the ministerial guidelines relating to the Minister’s discretionary power under the Act[39] as set out in departmental policy ‘Minister’s guidelines on ministerial powers (section 351, section 417, and section 501J)’, the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

[39]Migration Act 1958 (Cth), s 417.

DECISION

101.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Wayne Pennell
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958 (Cth)

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…