2006126 (Refugee) - [2020] AATA 3809

2006126 (Refugee) [2020] AATA 3809 (21 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006126
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Sean Baker
DATE:21 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 July 2020 at 10:43pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – past employment in government – failure to return to Nigeria after conference in Australia – criminal convictions from overseas – Decree 33 – separation from Australian family – mental health condition – access to mental health service – impact on Australian-citizen wife and children – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 March 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Nigeria applied for the visa on 25 July 2019. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant’s claims regarding his fears of return, nor did the delegate accept there was a real chance the applicant would suffer significant harm if removed from Australia to Nigeria.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2006126 (Refugee)

Details

AGLC: 2006126 (Refugee) [2020] AATA 3809
Case: [2020] AATA 3809
Decision Date: 21 July 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Nigerian national. The applicant claimed he would suffer harm upon return to Nigeria due to past employment with the Nigerian Federal Ministry of Youth Development, his failure to return to Nigeria after attending a conference in Australia, and the resulting threats to himself and his family. He also cited fears of detention, torture, punishment, or death by both youth groups and government authorities, and the potential contravention of the Convention on the Rights of the Child. The applicant had an Australian citizen wife and Australian citizen children. The Administrative Appeals Tribunal was required to determine whether the applicant had a well-founded fear of persecution or a real risk of significant harm.

The Tribunal considered the applicant's claims in light of the criteria for a protection visa, including the complementary protection criterion under s.36(2)(aa) of the Act. This criterion requires the Minister to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, there is a real risk of significant harm. The Tribunal was mandated to take into account relevant guidelines and country information. The applicant's fear stemmed from his past role as a personal assistant to a relative within the Ministry, where he alleged salary discrepancies, verbal and physical abuse, and an assault by youth. His decision not to return to Nigeria after a conference in Australia led to him being sought by Nigerian officials and threats being made against his family.

The Tribunal concluded that the decision under review should be affirmed. While acknowledging the applicant's past employment and his subsequent failure to return to Nigeria, the Tribunal did not find that he met the criteria for a protection visa. The reasoning for this conclusion, however, is not fully detailed in the provided text, beyond the statement that the Tribunal affirmed the decision under review. The specific findings regarding the applicant's fear of persecution or significant harm, and how those fears were assessed against the legal thresholds, are not elaborated upon in the extract.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant has a well-founded fear of persecution or there is a real risk of significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims In his written application the applicant claims that he will be harmed on return to Nigeria. He claims to fear harm on return because in 2007 and 2008 he worked as a personal assistant to his [relative], [Relative A], who was a [Position 1] for the Nigerian Federal Ministry of Youth Development. His [relative] was not paying the applicant this full salary. The Ministry was not providing on promises, and staff including the applicant were being verbally and physically abused. Around March 2008 at a forum in [State 1], the applicant and his colleagues were physically assaulted by youth who discovered the Ministry was making bogus promises. After this police protection was provided to Ministry staff during work hours. [In] 2008, the applicant took the opportunity to be sponsored by the Nigerian government to attend [a] conference in Australia as a pilgrim. After arriving in Australia, he felt free and knew he could not return. Whilst in Australia he was told that youth and government officials in Nigeria were looking for him at his home and making threats to his family at his home and by telephone. The officials were looking for him because he failed to return after [the specified conference] as expected. He fears separation from his family in Australia (if he were to return) and because he claims his return to Nigeria would be in contravention of Article 3 of the Convention on the Rights of the Child. I note the applicant has an Australian citizen wife, an Australia citizen stepchild and an Australian citizen biological child (with another woman). He fears he will be detained, tortured, punished or killed on return by: ·the youth because of his membership of a particular social group (PSG), “employee of the Federal Ministry of Youth Development in [State 2];” and ·government authorities because of his failure to return to Nigeria after [Conference 1]. He fears he will be made an example of by the government as a way to prevent others from attempting to remain in Australia and to silence him. He fears his family in Nigeria will also be harmed for his actions and he will not be able to protect them. The Nigerian authorities will not protect him on return as they are the ones threatening him because of his failure to return after [Conference 1] in Australia.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant has a well-founded fear of persecution or there is a real risk of significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Claims In his written application the applicant claims that he will be harmed on return to Nigeria. He claims to fear harm on return because in 2007 and 2008 he worked as a personal assistant to his [relative], [Relative A], who was a [Position 1] for the Nigerian Federal Ministry of Youth Development. His [relative] was not paying the applicant this full salary. The Ministry was not providing on promises, and staff including the applicant were being verbally and physically abused. Around March 2008 at a forum in [State 1], the applicant and his colleagues were physically assaulted by youth who discovered the Ministry was making bogus promises. After this police protection was provided to Ministry staff during work hours. [In] 2008, the applicant took the opportunity to be sponsored by the Nigerian government to attend [a] conference in Australia as a pilgrim. After arriving in Australia, he felt free and knew he could not return. Whilst in Australia he was told that youth and government officials in Nigeria were looking for him at his home and making threats to his family at his home and by telephone. The officials were looking for him because he failed to return after [the specified conference] as expected. He fears separation from his family in Australia (if he were to return) and because he claims his return to Nigeria would be in contravention of Article 3 of the Convention on the Rights of the Child. I note the applicant has an Australian citizen wife, an Australia citizen stepchild and an Australian citizen biological child (with another woman).