1930909 (Refugee)

[2022] AATA 3346

1930909 (Refugee) [2022] AATA 3346 (8 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Ms Rebecca Lennon (LPN 5512998)

CASE NUMBER:  1930909

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:Paul Windsor

DATE:8 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 8 August 2022 at 5:10 pm

CATCHWORDS

REFUGEE – protection visa – Nigeria – Federal Court remittal – particular social group – Igbo females – fear of killing – employment – female genital mutilation – internal relocation – fear of kidnapping – state protection – third country protection – Economic Community of West African States (ECOWAS) entry and residence – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 July 2014 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Nigeria, applied for the visa on 24 December 2013.  A summary of relevant applicable law is at Attachment A.

3. As the applicant was [a minor] when the application was made, her protection visa application was completed on her behalf by her mother, [Mother A].  It indicated that the applicant was born on [date] in Victoria, Australia, is ethnic Igbo and is a Christian.  It was claimed that the applicant has no citizenship.  A birth certificate provided on 18 February 2014 indicates that the applicant was born to [Mother A variant] and [Father A] at [a named hospital in Victoria], on [date].[1]

   [1] See the Departmental file.

4. The applicant’s mother and father made a Protection visa application on 27 February 2012 which also included the applicant’s [Sibling A, named].  This application was refused by a delegate of the Minister on 13 September 2012.  This decision was affirmed by the Refugee Review Tribunal on 26 August 2013.[2]

   [2] See RRT Case Number 1214499.

5. In the applicant’s Protection visa application it was stated that the applicant was born in Australia and has not been to Nigeria.  It was claimed that the applicant fears that [Mr A] (the man whom her mother was supposed to marry) will kill her if she was to return to Nigeria, because her mother’s father had an agreement with [Mr A’s] father that her mother would marry [Mr A], but she married someone else.  It was indicated that a detailed statutory declaration will follow.[3]

   [3] See the Departmental file.

6. Statutory declarations made on 26 May 2014 by [Mother A] and [Father A] subsequently were submitted in support of the application.[4]  In their statutory declarations [Mother A] and [Father A] asserted that the RRT decision in relation to their case was not fair.  They asserted that if the family returned to Nigeria they could not live with [Mother A’s] family, they fear [Mr A] would kill their children and they could not live with [Father A’s] family because his family never supported their marriage.  It was contended that the family would have to go into hiding and would not be able to get employment and survive in Nigeria or be able to send the children to school.  It was also contended that the applicant would be at risk of being subjected to Female Genital Mutilation (FGM).  [Mother A] also asserted the applicant would be at risk of harm due to the poor health care and educational systems in Nigeria, the physical abuse of students, child abuse generally and kidnapping.

   [4] See the Departmental file.

7. Considering relevant country information, the delegate found that the applicant is a Nigerian citizen by birth.  The delegate refused to grant the visa, noting that the applicant’s parents did not pursue judicial review sought in relation to the RRT decision regarding their case.  The delegate detailed significant credibility concerns he had regarding the claims and evidence advanced by the parents in their case.  He found that they could re-establish themselves in Lagos in Lagos state and could protect the applicant from their extended families if they remained in Lagos away from their extended families.

8. The applicant’s parents sought review of this decision, on the applicant’s behalf, on 16 July 2014.  They provided the Tribunal with a copy of the delegate’s decision record.[5] 

   [5] See Tribunal file 1412486

9. On 9 September 2015, the Tribunal (differently constituted) affirmed the decision not to grant the applicant a protection visa.[6]  The previous Tribunal observed that, at the Tribunal hearing, [Mother A] confirmed in her evidence that the applicant is a Nigerian citizen by birth.  Section 25(1)(c) of the Constitution of the Federal Republic of Nigeria provides that a person is a Nigerian national by birth where either of his or her parents is a citizen of Nigeria.  In the present case, both parents are Nigerian nationals and therefore the applicant is a national of Nigeria.

   [6] Tribunal case number 1412486 refers.

10. The previous Tribunal found that, given the high prevalence of FGM in Nigeria and among the Igbo ethnic group in particular, and despite its significant credibility concerns (in relation to the applicant’s parents’ claims in their protection visa application), the applicant faces a real chance of suffering FGM which would amount to persecution, if she returned to either her mother’s or her father’s village.  The Tribunal found the persecution would be for reason of her membership of a number of possible particular social groups, including Nigerian women and girls who are Igbo.  The Tribunal found, however, that the applicant’s parents could return to Lagos with relative ease, because they have a level of familiarity with the city.  The Tribunal found the applicant ‘will have a normal life with her parents in Lagos and she will grow up in a loving and caring environment’ and will not face a real chance of persecution for any Convention reason.  The Tribunal also was not satisfied the applicant would face a real risk of significant harm in Lagos.  The Tribunal found, on all the available evidence before it, that it would be reasonable for the applicant to reside in Lagos with her parents.[7]

    [7] Tribunal decision record in relation to case number 1412486 refers.

11. [In] September 2018, the Federal Circuit Court of Australia (FCCA) dismissed an application for judicial review of the previous Tribunal decision, made [in] October 2015.[8]  [In] September 2019, however, the Federal Court of Australia Full Court (FCAFC) set aside the FCCA orders and quashed the decision of the previous Tribunal in case number 1412486, directing that the Tribunal determine the application made on the appellant’s behalf according to law.[9]  The Court found that the third ground of the present appeal, that the Tribunal misapplied s 36(2B)(a) of the Act by conflating the reasonableness of the appellant’s relocation with the reasonableness of her parents’ relocation, was made out.  The court noted that the first ground, that the Tribunal failed to consider the appellant’s contention that, if returned to Lagos, she would be homeless, was subsumed by its conclusion on the third ground, although ‘it may well be found appellable error in its own right’. 

    [8] [Source deleted].

    [9] [Source deleted].

12. Of interest in this matter is that the court found ground 2 was not made out.  This ground was that the Tribunal failed, contrary to the requirements of s 424A(1) of the Act, to provide the appellant with clear particulars of information that it considered would be the reason, or part of the reason, for its affirming the decision of the Minister not to grant her a protection visa.  This arose in the context of the previous Tribunal having indicated at the hearing, pursuant to s 424AA of the Act, that the evidence from the Tribunal hearing and findings in relation to RRT case 1214499 was adverse information and would be the reason or part of the reason for affirming the decision of the Department in relation to the appellant.  In the circumstances of the current case, the court found that, given the scale of the appellant’s challenge to the previous Tribunal decision, and the comprehensive and global manner in which it was pursued, the appellant must objectively be understood to have been extending to the Tribunal an invitation to consider (and not follow) the previous Tribunal decision.  The court went on to find that, in that sense, that decision was information that she gave to both the Minister and the Tribunal and was, therefore, within the contemplation of the exemptions at each of ss 424A(3)(b) and (ba).  Accordingly, and assuming that it amounted to information that ’…would be the reason, or part of the reason, for affirming’ the Minister’s decision to decline the Appellant’s protection visa application, the court found it did not enliven any of the obligations for which s 424A(1) provides.

13. As the applicant currently is only [age] years of age, at her mother’s request, the applicant’s mother, [Mother A], appeared before the current Tribunal on 20 July 2022 to give evidence and present arguments on the applicant’s behalf.  

14. The applicant was represented in relation to the review.  The representative attended the Tribunal hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims and evidence

15. Additional statutory declarations from [Mother A] and [Father A] in support of the applicant, both made on 15 July 2015, were submitted to the previous Tribunal on 16 July 2015.[10]  In her statutory declaration, [Mother A]:

    ·Reiterated that she stands by all previous claims made in her Protection visa application and confirms that the applicant is also at risk due to those claims and for her own reasons as outlined in her and her husband’s statements to the Department.

    ·Indicated that she intends to appear on behalf of her daughter at the Tribunal hearing scheduled for 22 July 2015.

    ·Confirms that she has read the submission provided by her representative and that it accurately presents her claims.

    [10] See Tribunal file 1412486.

16. In his statutory declaration, [Father A]:

    ·Also reiterates that he stands by all previous claims made in his Protection visa application and that the applicant is also at risk due to those claims and for her own reasons as outlined in his and his wife’s statements made in support of her application to the Department.

    ·Raised health issues he suffers, including a condition that gives him heartburn and associated symptoms, a stomach infection, issues with the consistency of his blood, possible liver function issues and pain from injuries sustained in Nigeria.  He indicated he was hospitalised for two brief periods in 2014 and that intermittently has to miss work.  He comments that he worries that he would not be able to provide for his family in Nigeria and would not be able to access all the medical treatment he needs to manage his health conditions.

    ·Confirms that he has read the submission provided by the representative and that it accurately presents his claims.

17. On 25 August 2015 a copy of a letter from a Consultant Haematologist [to] [Father A’s] doctor was submitted.[11]  This indicated that [Father A] had been diagnosed with ‘relative polycythaemia’ and has a low blood plasma volume.  It also indicates that he is awaiting a gastroscopy to investigate his epigastric pain and may be commenced on treatment for Helicobacter Pylori infection as he returned a test result consistent with its presence.

    [11] See Tribunal file 1412486.

18. Further statutory declarations from [Mother A] (made 17 June 2022) and [Father A] (made 12 July 202) were submitted to the current Tribunal on 13 July 2022, along with a copy of an Australian citizenship certificate for the applicant’s [Sibling A].[12]  Relevant additional matters raised in these statutory declarations are summarised as follows:

    [12] See Tribunal file 1930909.

    ·They now have three daughters.  Their eldest daughter, [Sibling A], is now an Australia citizen.  Their youngest [daughter] has a protection visa application pending before the Department.

    ·[Mother A] is concerned that if the applicant is returned to Nigeria she will be subjected to FGM and forced marriage.  In addition, she is scared she will not be able to have even the most basic of needs such as food and shelter, education and medical care, and that she will be exposed to sexual abuse and risk of kidnapping, including for ritual killings.  A lot of kids go missing without trace in Nigeria.

    ·FGM is a tradition in Igbo-land that is widely practised despite the harm it causes the child.  A child may die from infection after the procedure.

    ·If they have to return to Nigeria they will have nowhere else to go other than her husband’s village, [Village 1].  [Father A’s] family do not accept their marriage because they were not married in the traditional way so [Mother A] will not be accepted in their village.  [Father A] is an outcast because is an Osu and his family did not support the marriage as they do not want a war between their family and [Mother A’s] family.  The only option would be for [Father A] to stay with his family, with their three young daughters, so they can have a roof over their heads.  [Mother A] does not know where she would go as she cannot return to her hometown.  Consequently, [Father A’s] mother would be the decision maker about everything in relation to their children.

    ·[Father A’s] mother is very traditional and would insist that FGM be performed on their daughters, even without the knowledge or approval of [Mother A] and [Father A], who are both against FGM.  FGM is a common practice in [Father A’s] rural community.  [Father A] would not be able to watch over the children all the time to make sure this does not happen.

    ·The Nigerian authorities will not do anything to stop this.  In Nigeria FGM is a sanctioned, traditional practice which is not considered wrong.  The authorities are not interested in protecting women and girls, particularly those who have not followed cultural expectations, like FGM and arranged marriage, which are seen as a private family/community matter.

    ·They are from the south eastern part of Nigeria.  They have no connections anywhere else except [Father A’s] village.  [Mother A’s] people rejected her because she married [Father A] without their consent.  They do not have family or friends anywhere else to help them.  They lost all there contacts when they fled from Nigeria almost 10 years ago.

    ·As their family has no other family in Australia, [Mother A] and [Father A] will pursue a pathway to stay with their eldest [child, Sibling A] as her parents and members of the same family unit.

    ·If the applicant had to return to Nigeria alone, as a young girl, the applicant would face serious harm throughout the country.  She was born in and has grown up in Australia and has no connection to Nigeria or the people or customs.  She would likely end up homeless, begging, stealing and being sexually abused, or could fall victim to child trafficking or end up dead.

    Evidence from the hearing of 20 July 2022

19. At the hearing the Tribunal discussed with [Mother A] the FCAFA remittal of [September] 2019.  The Tribunal observed that the court found the decision by the first Tribunal in case 1412486, made on 9 Sept 2015, fell into jurisdictional error when considering the issue of relocation because it conflated the issues her and her husband relocating with those of the applicant, their daughter [the applicant].  The Tribunal noted that the court did not make a definitive finding regarding another ground of appeal in relation to the claim that [the applicant] would become homelessness.  The Tribunal observed that, importantly, the court found that, given the extensive consideration of the evidence and findings in relation to the decision by the RRT in case 1214499 of 26 August 2013 (the applicant for her, her husband and their elder daughter), that decision record had been given by the applicant to the Tribunal and therefore was not adverse information subject to s 424A or AA of the Act.   The applicant indicated she did not have any comments she wished to make on these observations.

20. The Tribunal noted that a copy of the delegate’s decision record in relation to the current decision under review also had been provided to the Tribunal.  The Tribunal observed that it will be taking into considering the evidence provided and the findings made both in relation to the RRT’s consideration of the case involving [Mother A], her husband and their elder daughter, and the decision by the delegate in the current matter.  The Tribunal advised [Mother A] that it did not propose to take further evidence from her in relation to the matters raised in her application.  [Mother A] indicated she did not wish to make comments on these observations.

21. The Tribunal summarised the matters raised in the statutory declarations submitted in July 2015 and in July 2022.  [Mother A] confirmed the summary was accurate and there was nothing she wished to clarify or qualify.

22. The Tribunal confirmed with [Mother A] that she is stating that if she had to return to Nigeria she would not be able to live with her husband and children.  She indicated that is correct, because his family do not accept her as his wife.  She said when she took him to meet her family they did not accept him, beat him up and left him half dead.  He was rescued by his people and they cared for him and he was warned by his people not to marry her but went against their wishes.  Se said none of her husband’s people attended their wedding.

23. [Mother A] added that her husband’s village is not far from hers, about 15 minutes’ drive away, so if she went there, as well as not being accepted by his people, her family might find out and go there and have a fight with them.

24. The Tribunal queried whether her husband had already spoken to his family about wishing to marry her, before he went to see her family.  She said she is not sure, because he proposed to her and said he wanted to go to meet her people.  She indicated she told him about her situation with [Mr A] before they went to meet her family.  She said she didn’t think he had informed his family at that time.  The Tribunal commented that it doesn’t recall from the material it has looked through anything that indicates her husband’s family did not approve of their relationship.  [Mother A] said it was after his family found he had been beaten by her family that they warned him against him getting involved with her.  She added that since he is an outcaste (as an Osu) and she is a freeborn, in Igbo-land if an outcast marries a freeborn they become an outcast, so freeborn families do not like their children becoming involved with an outcast because it is a stain on their family name.  The Tribunal asked why it would be an issue for his family if he married a freeborn.  She said it is an issue for them because they don’t want a fight or a war with her family.

25. [Mother A] confirmed she was born in Abia state (in the South East Zone of Nigeria) and indicated her family were living there at that time.  She said her husband was born in his village ([Village 1]) in neighbouring Imo state.  When asked, she indicated that her family did not move to Imo, but commented that in Igbo-land, when you wish to marry you have to come back to the traditional village, which in her case is in Imo state.  She indicated she still has uncles there.  She said her family moved to Aba, a business town in Abia state, in search of  ‘greener pasture’.  She indicated that Abia was created out of Imo state in 1991.  She indicated that Aba is about [distance] from her family village in Imo state.

1. [Mother A] confirmed that her parents are now both deceased.  She indicated she has [specified siblings].  She said before she left they were still living in Aba in Nigeria but indicated she no longer has any contact with any family members.  She indicated she did her primary and secondary schooling in Aba but [between specified years] went to [a named university] in Enugu state (which borders Abia state to the north) to [study].  After that, [between specified years], she attended the [College 1] in Lagos, sat her exams, and was [registered] as [an occupation 1] [in] November 2006, in the capital, Abuja.  She then did national service [between specified years] in Katsina state in the north of Nigeria.  She indicated she had no choice but was posted there.  She said that, after an orientation period, she was posted as [an occupation 1].

2. [Mother A] confirmed that her husband was born in [Village 1] in Imo state and that is his home village.  The Tribunal observed that it understood from previous evidence (the previous Tribunal decision record) that when she met her husband in Lagos he had been living there for about 10 years.  [Mother A] disputed this, saying she thought he had been living there from around 2008, but added she is not really sure.  She acknowledged that he was running [business] with his brother.  When asked what other family her husband has in Nigeria, [Mother A] said he has his mother [and specified siblings] in total.  She said he is not in contact with any family members because they are concerned that if her people went to harass his family members the family might get scared and give out details about them such as their location and what they are doing which could cause them problems in Australia.

3. When asked, [Mother A] said she doesn’t know if her husband and his brother were jointly running the business or if her husband’s brother took it over when he left as they didn’t stay long after ‘the problem’ started.  When asked, she indicated that at the time they left Nigeria, she thinks her husband’s mother [and specified siblings] were living in the home village.

4. The Tribunal asked [Mother A] to provide an update regarding her husband’s health issues.  She indicated that he still sees a specialist as he still has a gastric issue that causes him stomach and chest pain.  She indicated that he has been provided various drugs which address the symptoms and give a few hours’ relief but don’t make the problem go away.  She indicated that her husband is not working at the moment.  She indicated their work rights were withdrawn in 2015 and they only got their work rights back in March 2020.  She indicated she changed career as she could not find a job in her field, and is now working as [an occupation 2], and her husband is undertaking a course to obtain a certificate so he can do similar work.  She indicated that for a long time they have been supported by [Agency 1], and received pandemic relief support from [Agency 2].

5. In relation to her heath, [Mother A] indicated that she has had stomach issues which she had seen a doctor and specialist about, but because they lost access to Medicare it was very hard for her to get the support she needs as they can’t afford the cost.  The Tribunal observed that she had been seeing a counsellor at [Agency 3] previously and asked if that was still the case.  [Mother A] said she stopped some years back.  She indicated she is also no longer seeing a psychiatrist, adding that she just found a way to manage her problems.

6. The Tribunal discussed with [Mother A] the advice contained in the current DFAT report regarding Female Genital Mutilation/Cutting (FGM/C) in Nigeria (the term used in the report).[13]  This indicates that, 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 per cent of women aged 15-49 years had undergone some form of FGM/C, compared to almost 25 per cent in 2013 and 27 per cent in 2011. The report also found 82 per cent of those who had undergone FGM/C had done so before the age of five.  Although FGM/C is more common in the southern, predominantly Christian regions, it is practised within both Christian and Muslim communities. The highest FGM/C prevalence rates are in the southeast and southwest (33 and 41 per cent respectively) and the lowest prevalence rate is in the northeast (1 per cent).  FGM/C prevalence varies considerably between ethnic groups: whereas prevalence among Yoruba and Igbo women is 45 per cent and 29 per cent respectively, it is 14 per cent for both Hausa and Fulani women and 9 per cent across all other ethnic groups.  The Violence Against Persons (Prohibition) Act (2015) prohibits FGM/C, making it a federal offence.  It penalises a person convicted of performing female circumcision or genital mutilation with a maximum of four years in prison, a fine of 200,000 naira (AUD635), or both.  It punishes anyone convicted of aiding or abetting such a person with a maximum of two years’ imprisonment, a fine of 100,000 naira (AUD369), or both.  The Act automatically applies within the Federal Capital Territory (Abuja), but must be passed separately in each state and DFAT understands only 13 states have implemented the Act to date (the Tribunal commented that an internet search indicated that Lagos and Imo states are among the 13 where the Act has been implemented).

   [13] DFAT Country Information Report, Nigeria, 3 December 2020, sections 3.89-3.93.

7. DFAT indicates that cultural and societal norms support the continuation of FGM/C in Nigeria.  Cultural attitudes behind the practice of FGM/C include notions of cleanliness or hygiene; prevention of promiscuity; enhancing fertility; marriage prospects and fidelity; fulfilled womanhood; and/or the idea that it protects babies during childbirth.  Girls may be ostracised, shunned or assaulted by their family or community if they have not undergone FGM/C.  DFAT notes that several international and local NGOs work to reduce the practice of FGM/C in Nigeria, including the WHO, UNICEF and the African Union.  As family members are often the perpetrators, reporting rates for FGM/C are low.  There are no reports that FGM/C has occurred without the consent of parents.  International observers report there have not been any prosecutions in relation to FGM/C to date.

8. [Mother A] commented that the legislation is just on paper and does not work in practice because no-one is sent to prevent it.  She said in rural communities they still do it and no child or doctor will report the parents for FGM, adding that if people do that, the whole community will turn against them because it is a strong tradition which is carried out every day.  She commented that no one has been convicted under that law.

9. The Tribunal queried [Mother A] why she thought her daughter would be at risk of forced marriage if she and her husband do not support the practice.  She commented that they have met Igbo people in Australia who have expressed interest in their sons marrying their daughters but they make it clear that is not something they would agree to.  She added that if they were back in Nigeria and she and her husband are not there to protect their daughters, the family could accept a bride price for an arranged marriage without them even knowing, and when the child grows up and says, ‘no’, it becomes a problem.

10. The Tribunal observed that the previous Tribunal accepted that the applicant would face a real chance of suffering FGM if she went to Nigeria and settled with either of [Mother A’s] family or her husband’s family in their villages, but felt that it was an option for the family to reside in Lagos where there would not be a real chance of her being subjected to FGM.  The Tribunal acknowledged that the FCAFC found the previous Tribunal erred in its consideration of this issue but indicated that this was something the Tribunal needed to consider, in a way that avoided failing into jurisdictional error.  The Tribunal observed that the applicant, having never lived in Nigeria, does not have a ‘home’ area, so for her it is not an issue of relocation, but an issue of where she would reside if she went to Nigeria or was removed from Australia to Nigeria.

11. The Tribunal suggested that, if the applicant was to go to Nigeria, it might be considered that she would go to Lagos, and [Mother A] and her husband could also go to Lagos, to support her there.  The issue then would be whether she would still face a real chance of suffering FGM if she was living with her parents in Lagos, away from the influence of [Father A’s] mother and other family members who support the traditional practices, given she and her husband have made clear they find the practice to be abhorrent.

12. [Mother A] commented that, firstly, neither she nor her husband are from Lagos state.  Second, they do not have any house, rented or otherwise, in Lagos state.  Third, they lived in Lagos over 11 years ago, before they came to Australia.  She added that her daughter is a child and cannot live somewhere by herself - she has never been to Nigeria and does not know anyone there and her husband’s people do not know of her existence, so don’t know who she is.  She said there is no possibility of her daughter going to Lagos.  Fourth, they have not had any form of income for the past seven years.  She indicated she has just started working since February on a part-time basis and only earns enough to pay for food and school expenses and things for the children, but they don’t have any savings or income to locate in any other place.  She said they would not be able to provide a home, food and be able to send their children to school in Lagos where they do not know anyone at this time.  She said their only option would be to take the children to her husband’s village because they would have a house there, which was built by and is owned by her father-in-law.

13. The Tribunal observed that previously she had rented accommodation in Lagos and asked why they could not rent a place in Lagos.  [Mother A] said they do not have savings to do that given they have not worked in the past seven years.  The Tribunal observed that she and her husband have been able to obtain accommodation in Australia and that previously she rented a place in Lagos while she was working for a law firm.  [Mother A] said at that time she was just a single girl, but now she had three children.  The Tribunal also observed that she has been [registered in an occupation] in Nigeria so would have the capacity to get work in [that] field to earn income.  [Mother A] commented that because she has been away from [this occupation] for over 10 years she needs to go under someone’s tutelage because she is no longer conversant with [current practices].  She added that she is still fearful of [Mr A] and does not know whether he would still want to harm her and her family.

14. The Tribunal asked [Mother A] whether she believed the applicant would still be at risk of FGM if she was living in Lagos with her and her husband.  She reiterated that they would not be going to Lagos, commenting that that is out of the question.  She added that, while the applicant may not be at risk of in FGM in Lagos, Lagos is still not safe because of the human trafficking, kidnapping and sexual abuse that happens there, and because they would not have a roof over their heads and they could not provide for her and look after her if they went there.  [Mother A] added that they would not be able to leave the applicant unattended if they went to Lagos.

15. The Tribunal also discussed with [Mother A] the issues of health care, education, the risk of kidnapping and the sexual exploitation of children that have been raised, citing relevant advice from the DFAT Country Information Report.[14]

    [14] DFAT Country Information Report, Nigeria, 3 December 2020, sections 2.20-2.29, 2.31-2.34, 2.57 and 3.107-3.108.

16. [Mother A] said there is no universal health care in Nigeria as far as she is aware, commenting that the user pays for everything and will be asked to pay a deposit before being given treatment.  In relation to education she said in reality there is no free education and if school fees are not paid the child is sent out of the school.  She commented that facilities are poor and in many schools students sit on the floor.  She added that teachers are always on strike.

17. In relation to kidnapping, the Tribunal observed that while the country information indicates that kidnapping and abductions have become an acute concern across the country, much of it is related to insurgent groups or factions in intercommunal conflicts in particular locations in the country, as well as by criminals targeting prominent and wealthy figures for ransom.  [Mother A] commented that the situation in relation to kidnapping is worse now because of Biafra separatists who are in conflict with the police.  She added that there have been instances where public transport is targeted and everyone on a bus is kidnapped and held for ransom whether the people are known to the kidnappers or not.  She asserted that the applicant would be at heightened risk of kidnap because as soon as she speaks people would know she is from abroad. 

18. In relation to child sexual exploitation, the Tribunal noted that, while DFAT indicates that sexual abuse and exploitation of children remains a significant problem in Nigeria, it seems clear that some children are much more vulnerable than others, depending upon their person family circumstances.  The Tribunal observed that the previous Tribunal commented in its decision record that it considered there wasn’t a real risk for the applicant in the context of the relationship she had with her parents and the love and support she gets from them.  [Mother A] acknowledged that her daughter will get support from her and her husband but stressed that they would not always be there to help their children.  She commented that if they return to Nigeria destitute they will have to leave the children to get work so they can put food on the table.  She added that if it is just their dad and their grandma and their dad has to leave the children in the village to go out, they will be vulnerable as he will not know what is happening.  She suggested that if they are hungry they will also be vulnerable to predatory behaviour from people hanging around who might offer them a lolly or some food.

    Post-hearing submission

19. The representative made a post-hearing submission on 3 August 2022.[15]  In the submission the representative observed that the previous Tribunal accepted that the applicant is a member of a particular social group that faces a real chance of suffering persecution in the form of FGM if she ‘returned’ to her mother’s or father’s home village.  The Previous Tribunal also found that the applicant does not have the right to reside in a third country, nor could she access protection from the authorities.  The representative commented that relocation is an impugned factor which the submission concentrates on, as well as seeking to clarify the influence the applicant’s parents’ families and communities will have on their decision to subject their daughters to FGM, regardless of where they reside in Nigeria and regardless of the parents’ strong opposition to the practice.

    [15] See Tribunal file 1930909.

20. The representative also submits that, while the previous Tribunal did not accept the applicant’s parents’ claims, these are still relied upon.

21. The representative cited country information regarding the prevalence of FGM across Nigeria, noting the higher prevalence of FGM amongst Christians, ethnic Igbo and in Imo state.  Information from a 2020 UK Aid report indicates that in Lagos state, 13%-26% of women aged 15-49 years had been ‘circumcised’, and that ethnic Igbo made up 20% of these women and girls.  The country information indicates that FGM is usually done in secret, and reporting of the practice is ‘disincentivized’ and therefore official figures under-report the extent of the practice.

22. It is also submitted that family and community member influence and pressure, which could cause condemnation and possibly persecution, would be such that it would be difficult for the family to resist the pressure of their community to circumcise their daughters.  It is submitted that regardless of where the applicant and her family may live in Nigeria, if removed from Australia, the applicant would continue to face a real risk of FGM because it would be impossible for them to escape the traditional Igbo expectations of FGM.  In this regard, the representative also cites a 2016 paper by the Immigration and Refugee Board of Canada which reported that the definitive decision on FGM falls on the most senior female on the paternal side, and notes the evidence previously provided that all the women in the applicants paternal family have been subjected to FGM.  The paper also notes that ‘cutting’  could be determined by extended family or community members.  The report also notes that refusal to undergo FGM may result in the girl being ostracised, denied marriage opportunities from within the community, excluded from Igbo society, stigmatised, outcast and even threatened and harassed.

23. In relation to the issue of relocation, the representative noted that the FCAFC found in favour of the contention that the previous Tribunal had conflated the reasonableness of the applicant’s relocation with the reasonableness of her parents’ relocation.  It is noted that the applicant is a minor who has never lived in Nigeria, and therefore has no ‘home region’ or agency to live anywhere in Nigeria alone.  It is contended that the family would not live in Lagos if removed to Nigeria but would live in [Father A’s] home village of [Village 1], where they would have family and community assistance and could access food and shelter.

    Findings and reasons

    Identity

24. As noted above, [Mother A] confirmed in her evidence to the previous Tribunal that the applicant is a Nigerian citizen by birth, in accordance with Section 25(1)(c) of the Constitution of the Federal Republic of Nigeria.  This provides that a person is a Nigerian national by birth where either of his or her parents is a citizen of Nigeria.  Accordingly, the Tribunal finds the applicant is a national of Nigeria and, therefore, that Nigeria is her country of nationality for Convention purposes and is her ‘receiving country’ for complementary protection purposes.[16]

    Key issues

    [16] See Tribunal file 1412486.

25. The key issues in this review are whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if she was to go to Nigeria; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

26. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Credibility

27. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

28. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

1. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

2. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

3. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

   Assessment

4. The Tribunal finds that the applicant is [an age] year old, ethnic Igbo girl and is a Christian.

5. As she has never been to or lived in Nigeria, the Tribunal finds the applicant cannot be said to have a ‘home’ region in Nigeria. 

6. The issue in this case is, if the applicant was to go to Nigeria, where would she live, rather than where could she live.  Given her young age, she does not have free agency in relation to where she would live if she was removed from Australia to Nigeria.  This would be determined by her parents.

7. The applicant’s parents are adamant that, if they returned to Nigeria, they would have no option but to live with [Father A’s] parents in his home village of [Village 1] in Imo state, because they would be reliant on family and community support.  They assert this is for a range of reasons, including because they have been away from Nigeria for more than 10 years; have nothing in the way of savings or significant assets; could not afford accommodation in Lagos for a family of five; have no family, friends or network there; have a range of health issues that affect their ability to work (particularly in the case of [Father A]); do not have relevant recent work experience that would enable them to quickly find suitable work to enable them to obtain appropriate accommodation and meet expenses for a family of five; and because they and their children could be targeted for exploitation and harm because the children would be readily identifiable by their Australian accents as overseas born and raised and therefore the family may be perceived as wealthy, particularly if both parents were working.

8. Considering all the available evidence, the Tribunal accepts this would be the case.

9. Considering the relevant country information regarding the prevalence of FGM in Nigeria and the higher incidence of FGM among ethnic Igbo, Christians and in the south east and south west of the country, the Tribunal accepts that the applicant, as an ethnic Igbo Christian girl, would face a real chance of suffering persecution involving serious harm, in the form of being subjected to FGM, if she went to Nigeria.  The Tribunal finds that the persecution would be because of her membership of a particular social group comprising ethnic Igbo Christian girls in Nigeria.  Accordingly, the Tribunal finds the claimed fear of harm is well-founded.

10. Given the applicant’s young age and lack of independent agency, the Tribunal considers that she could not reasonably relocate to another part of Nigeria where the risk of her being subjected to FMG might be lower.

11. The Tribunal finds that the persecution is not controllable by the Nigerian authorities because, even though FGM/C is illegal in the Federal Capital Territory and 13 states in Nigeria, the practice persists at alarming levels (including in states such as Imo and Lagos where it is illegal), and there have been no recorded arrests.  The Tribunal finds that the government cannot protect the applicant from the persecution. 

    Third Country Protection

12. Under s.36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

13. Nigeria is a member of the Economic Community of West African States (ECOWAS).  DFAT indicates that ECOWAS is an association of 15 states founded in 1975 with the aim of promoting regional economic integration.  Current ECOWAS members are Benin; Burkina Faso; Cabo Verde; Cote d’Ivoire; The Gambia; Ghana; Guinea; Guinea-Bissau; Liberia; Mali; Niger; Nigeria; Senegal; Sierra Leone; and Togo.[17]

    [17] DFAT Thematic Report – Economic Community of West African States (ECOWAS). 3 December 2020, sections 2.1-2.3, 3.1-3.8, 3.14-3.16, 5.3-5.4.

14. A desire among West African states to better regulate migration and promote regional economic integration led to the signing of the ECOWAS Treaty in Lagos on 29 May 1975. Member states signed a revised treaty in Cotonou in July 1993 that aimed to strengthen further intra-regional economic and political integration and regional unity across national and linguistic borders.

15. The ECOWAS Treaty governs regional migration in line with three pillars: the Right of Entry, the Right of Residence, and the Right of Establishment. These pillars are enshrined in the 1979 Protocol Relating to the Free Movement of Persons, Right of Residence and Establishment and its Supplementary Protocols, commonly referred to as the Free Movement Protocol. All ECOWAS member states have ratified the Free Movement Protocol, which represents a step towards the creation of a borderless region. ECOWAS has subsequently adopted four additional supplementary protocols to the original Free Movement Protocol.

16. The ECOWAS Treaty confers the status of ECOWAS community citizenship on the citizens of ECOWAS member states. The Right of Entry affords all ECOWAS community citizens in possession of valid travel documents and International health certificates the right to stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements. In accordance with the Right of Residence, ECOWAS community citizens have the right to settle or establish in another member state other than their state of origin, ‘and to have access to economic activities, to carry out these activities as well as to set up and manage enterprises, and in particular companies, under the same conditions as defined by the legislation of the host Member State for its own nationals’. ECOWAS community citizens wishing to utilise the Right of Residence must apply and obtain a residence permit or work permit just like non-ECOWAS immigrants. Granting of Right of Residence to ECOWAS community citizens is not guaranteed — refusal is possible on public order, public security or public health grounds. The Right of Establishment affords all community citizens the right to access economic activities and to hold employment, including pursuit of the liberal professions, throughout all ECOWAS member states. Refusal is, again, possible on grounds of public order, public security or public health.

17. While all member states have ratified the Free Movement Protocol, and gradual efforts to progress the ECOWAS protocols at the national level across member states are ongoing, implementation challenges persist. There has been some success with adoption of the Right of Entry, although only the first phase of the ECOWAS framework for regional integration (visa-free entry for 90 days) has been implemented by all member states.

18. There are no specific policies or programs driving the realisation of the ECOWAS Common Approach to Migration. A key challenge is inconsistency between the ECOWAS Protocols and the national laws and policies regarding migration across ECOWAS member states. According to international observers, national laws and policies often do not conform to the ECOWAS Protocols (despite being adopted to implement protocol commitments). Few ECOWAS member states have adapted their legislation to be in accordance with the 1979 Protocol and supplementary protocols.

19. Although the ECOWAS Treaty suggests ECOWAS migrants and nationals have equal opportunities, in practice, many member states have provisions in their labour laws and regulations that protect certain economic sectors and public sector jobs from foreign nationals. In most member states, national labour legislation does not set specific provisions for access to employment by ECOWAS citizens, which jeopardises the implementation of the Right of Residence.

20. Capacity issues also restrict implementation. Reports indicate ECOWAS suffers from a severe shortage of staff and human capacity, which impedes ECOWAS’ ability to run its programs and implement its mandate effectively. Other issues are due to inadequate administrative and financial support systems, which limit ECOWAS’ capacity to absorb committed resources.

21. Resistance from influential member states, particularly Nigeria, has also hindered progress in implementing ECOWAS’ mandate. Issues of sovereignty can prevent ECOWAS engagement, particularly in relation to conflict resolution, as member states can be reluctant to accept external influence over sovereign affairs. Sovereignty issues can also affect willingness to engage on immigration matters that intersect with national security. Other member state dynamics, such as the Anglophone-Francophone divide or the overlap with other regional groupings such as the G5 Sahel, also pose challenges for cooperation in peace and security.

22. All ECOWAS member states have implemented the first phase of the ECOWAS framework for regional integration in relation to the Right of Entry. In principle, this means community citizens in possession of valid travel documents and international health certificates can stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements (i.e. without a visa). The eight UEMOA member states also have separate agreements on freedom of movement, allowing travel and residence based only on a national identity card rather than a passport. Immigration authorities can refuse entry if the would-be migrant is a prohibited immigrant, a person without visible means of support, an undesirable person, or a mentally disabled person (on advice of the health authorities).

23. Although the ECOWAS regime allows stays of up to 90 days visa-free, longer stays over 90 days theoretically require a residence permit. Few ECOWAS citizens resident in other ECOWAS countries possess the necessary identification documents to apply for residence permits, and documentation can be difficult and expensive to acquire. Sources report if a form of ID other than a passport is used for border crossing, a stamp is not issued and it is therefore impossible to date entry. In addition, although passports should technically be stamped and the stamp initialled, in-country sources report this does not happen reliably in practice.

24. Benin, Burkina Faso, Cote d’Ivoire, The Gambia and Nigeria are the only member states that grant a specific residence permit to ECOWAS citizens. These countries have ratified: the Supplementary Protocol relating to the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons, the Right of Residence and Establishment; the Supplementary Protocol relating to the second phase (Right of Residence); the Supplementary Protocol relating to amending and complementing the provisions of Article 7 of the Protocol on the Free Movement Rights of Residence and Establishment; and the Supplementary Protocol relating to the Implementation of the third phase (Right to Establishment).

25. The reliability and efficiency of passport processing at land border crossings is variable. Movement across land borders can be met with harassment and administrative challenges. The Free Movement Protocols have reportedly been abused in some instances; for example, to smuggle goods and trade narcotics, which has increased negative sentiment between source and destination member states.

26. ECOWAS issued a standardised travel certificate in 1985. The travel certificate is a light blue manual card resembling a passport, which is valid for two years and renewable for a further two years. Sources advise the ECOWAS travel certificate was initially created to manage the issue of Francophone member state community citizens having national IDs and not passports. The certificate was essentially intended to serve as an emergency passport, limited to a specific journey or requirement, rather than for regular ongoing travel.  Sources report it is generally quicker, cheaper and easier for ECOWAS community citizens to pay a bribe to enter another ECOWAS member state rather than obtain the ECOWAS certificate.

80.   The Tribunal notes that the applicant does not have a valid Nigerian passport.  The Tribunal notes the availability of ECOWAS Travel certificates but also notes the advice above that it is generally quicker, cheaper and easier for ECOWAS community citizens to pay a bribe to enter another ECOWAS member state rather than obtain the ECOWAS certificate.  The Tribunal also notes that ECOWAS community citizens wishing to utilise the Right of Residence must apply and obtain a residence permit or work permit just like non-ECOWAS immigrants, and that the granting of Right of Residence to ECOWAS community citizens is not guaranteed — refusal is possible on public order, public security or public health grounds. 

81.   Furthermore, most ECOWAS countries closed their borders in April 2020 due to the COVID-19 pandemic.[18]  Al Jazeera reported on the closure of airspace and lockdowns in a number of states.[19]  Additionally, an academic article in the American Journal of International Law in 2020 states:

[18] ‘When a global virus meets local realities: Coronavirus (COVID-19) in West Africa’, OECD, 11 May 2020, When a global virus meets local realities: Coronavirus (COVID-19) in West Africa (oecd.org)

[19] “Coronavirus: Travel restrictions, border shutdowns by country’, Al Jazeera, 3 June 2020, Coronavirus: Travel restrictions, border shutdowns by country | Tourism News | Al Jazeera

Immediately after the first signs of COVID-19 in West Africa in March-April 2020, twelve
countries officially closed their borders. Other countries, such as Benin, Ivory Coast and
Senegal, adopted a more pragmatic approach by merely limiting to essential crossings any
arrivals or departures over land, and by adopting human[1]itarian corridors. Many of these
measures are based on Article 4 of the 1979 Dakar Protocol of the Economic Community of
West African States (ECOWAS) and Article 91 of the amended Treaty of the West African
Economic and Monetary Union (known under its French acronym UEMOA), which authorize
states to limit the freedom of movement and residence for reasons of public order, public
security, or public health. The measures, however, have heavily impacted the legal regime of
free movement of persons throughout the ECOWAS area. In the following analysis, I will
show that the measures have (1) contributed to the disintegration of the legal regime of free
movement of persons in ECOWAS and (2) instrumentalized COVID-19 for political ends in ways that are counterproductive for the region.[20]

[20] Abdoulaye Hamadou, ‘Free Movement of Persons in West Africa Under the Strain on COVID-19’, Cambridge University Press, 9 November 2020, Free Movement of Persons in West Africa Under the Strain of COVID-19 | American Journal of International Law | Cambridge Core

The Tribunal considers that, due to her young age and lack of independent agency, her not having a valid Nigerian passport, the uncertainty of obtaining an ECOWAS Travel Certificate, and border closures between ECOWAS states, in addition to how the COVID -19 pandemic will continue to change border restrictions, it is not satisfied that the applicant has an existing right to enter and reside in ECOWAS countries.

Conclusion - refugee criterion

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, she satisfies the criterion set out in s.36(2)(a).

   DECISION

2. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Paul Windsor
   Member

   
   

   ATTACHMENT A   Relevant law

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

   Refugee criterion

4. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

5. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

6. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

7. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

8. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

9. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

10. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

1. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

2. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

3. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

4. 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 a protection 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 the applicant 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’).

5. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

6. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Member of the same family unit who holds a Protection visa of the same class

7. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.

   Section 499 Ministerial Direction

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Home Affairs (the Department) - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.