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

1. 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).

2. 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

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, 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.

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 because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

7. 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

8. 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

9. 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

10. 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.

11. [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.

12. 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).

13. 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].

14. 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.

15. The applicant attended a PV interview on 12 March 2020 with his legal representative. At the interview, he reiterated his written claims. He also raised new claims as follows:

    ·His [relative] “wants to get back at him because he left when he was under his care” and because he ruined his [relative]’s reputation by overstaying after [Conference 1] in Australia.

    ·He is fearful of the criminals who introduced him to drugs in Australia. He fears these criminals intend to seek retribution against him in Nigeria for the financial loss they incurred when their drugs were seized by the Australian authorities after the applicant’s arrest.

16. Prior to the hearing the applicant’s representative provided a submission, news reports and a psychologist report to the Tribunal.

17. The submission sets out the applicant’s background and circumstances. The submission reiterated the claims above, referring to the DFAT assessment. The submission explained that the applicant fears harm from the Nigerian criminals who introduced him to drugs in Australia as if he returns to Nigeria these criminals will seek retribution for the drugs having been seized by Australian authorities. 

18. The submission stated that the applicant satisfied the complementary protection criterion on the basis that he would face significant harm including being shackled with iron chains, and/or being arrested by police and forced into a government run mental health facility because he suffers from Adjustment Disorder with mixed anxiety and depressed mood.

19. The submission provided a psychologist report dated 6 May 2020, which explained that the applicant suffers from Adjustment Disorder with depressed mood which includes symptoms of lethargy, sleeping difficulties, low motivation, a reduced appetite, feelings of worthlessness, a pervasive low mood and suicidal ideation. The psychologist report refers to a relapse of these symptoms since the applicant has been detained in [the] Detention Centre.

20. The submission also included country information on treatment of people with a mental illness and argued that if the applicant were to return to Nigeria with his current mental health condition, he would face a high risk of cruel or inhumane treatment of punishment and degrading treatment or punishment when trying to access mental health facilities. Therefore, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, he will face significant harm including being shackled with iron chains, arrested by police and forced into government run facilities as he suffers from Adjustment Disorder with mixed anxiety and depressed mood.

21. The submission also indicated that if separated from his children and wife, he would not be able to access adequate mental health treatment and would be at a greater risk of suicide.

22. The submission also argues it is in the best interests of the two Australian citizen children that the applicant remain in Australia. It notes that he is a father to both children and plays an active role in their lives. They need his love, care and support at their young age. The submission quotes Article 3 of the Convention on the Rights of the Child.

    The hearing

23. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments

24. The applicant and his representative appeared before the Tribunal on 22 May 2020.

25. The applicant said that he was scheduled to see his psychologist today. He agreed that he would try and provide an assessment.

26. The applicant said he was originally from Anambra but that his mum and brothers live in Enugu, in the city. The applicant detailed his life, saying he had finished Year [level] and had then helped his mum and then his [relative], where he had been employed as personal assistant to his [relative] who was a [Position 1] in the Federal ministry of youth development. He said he had done this role for about six months, [from] 2008 until he had come to Australia [later in] 2008. He said his main role was to help organise his [relative]’s personal belongings before work and after and make sure his briefcase is intact.

27. He explained that he had still been employed by the Ministry when he had come to Australia, and there was an expectation that he would return to his role. I asked if there had been any difficulties because he had not returned to that role and he did not state there had been. He said he had come to Australia and then decided not to return. Sometime later he met his wife in Australia.

28. I asked if he had left Australia after arriving in 2008 as indicated in his written application and he said he had, after being in Australia unlawfully they had applied for the visa, he had gotten a bridging visa but had been told the application could not be processed onshore so he and his wife had gone to [Country 1] [from] October [to] October 2010, and again [from] October [to] November. I asked if they had travelled to Nigeria at that time. He said they had, because they had to wait in [Country 1] longer than expected and his [Country 1] visa expired, so they went to [Country 2] and then had to go to Nigeria. I asked how long he had been in Nigeria and he said for a bit more than three months. They departed, according to his protection application, [in] March 2011 after the temporary partner visa had been granted.

29. The applicant said that when he returned to Australia he had been working and had met a few guys at his workplace, a Nigerian and an Indian and they had smoked drugs together and then injected drugs and he was called by these guys to come and pick up some drugs from someone coming from Malaysia and that was how he got arrested. He said he was given 7 years 9 months, with a minimum term of 5 years, so he served 5 years before being released. He said despite this, his wife and her whole family were there for him. He was released and then after he was released his partner visa was cancelled after some driving offences and he was sent to [immigration detention centre]. He then lodged the current protection visa.

30. I asked the applicant to detail his fears. He said that when he did not return in 2008 with the group he came here with, there was a lot of pressure to bring him back. Talking to them was giving him a lot of pressure so he just cut off from everyone, even his family back home. I asked how this would lead to him being harmed on return. He said that his [relative] was under a lot of pressure, because of all the embezzlement that was happening and that the applicant did not want to be associated with, because the ministry was the Ministry of youth development and he had been meeting youth, the applicant was seen on the tv all the time, but the Ministry was not delivering on the promise to youth, and they had had incidents where he and his [relative] had gone to press conferences and had had to leave in a hurry as there were demonstrations and violence

31. I asked if he would return to working for the Ministry if he was returned to Nigeria. He said there was no chance, his [relative] had retired and is no longer a politician from what the applicant understands, so that position was not there for the applicant anymore. He said that would be a big danger if they knew where he was, he was the only person who did not return among [number] who came here. I asked when his [relative] had retired and he said he thought maybe two years after the applicant came here. He said his [relative] is living in Abuja.

32. I asked who he thought would harm him if he returned to Nigeria now. He said he had come here through the Nigerian government, and they had paid for his travel which was under the ministry, then he had left and not come back, so they would be waiting for him, the police work for the government, not the community. I noted that I might think they might ask him to pay back the airfare but isn’t that all they would do. The applicant did not respond directly.

33. I asked if he feared the youth as claimed in his application. He said there were incidents when travelling with his [relative], the youth had got violent and were throwing stones. After that, they were provided with security, but that did not stop. I asked why anyone who had been ‘the youth’ 12 years ago would still be concerned with him or wish to harm him. He said he was not sure about that.

34. He said regardless, his [relative] was still very angry, and his [relative] could tell the Ministry. I noted that his [relative] might still be embarrassed and disappointed and angry at the applicant, but why would he harm the applicant. He said because his [relative] was taking the applicant’s salary and took salaries of other people and the applicant exposed this so his [relative] is not happy with how the applicant exposed what he was doing, he is still very angry. I asked if anything had happened to his [relative] because the applicant had exposed what he was doing. The applicant said his [relative] had taken time off and was in hospital for a while, he was not sure what sickness his [relative] had had, then the applicant had cut off contact with them as talking to them was giving him too much stress.

35. I noted to the applicant that from what he had told me, I might take the view that his [relative] would have no interest in harming the applicant for things that happened 12 years ago. I explained that from what he had told me it sounded like his [relative] had retired and nothing seems to have happened to his [relative] because of the applicant’s exposure, so I was not sure his [relative] would have the motivation or wish to harm him The applicant said it was still fresh in his [relative]’s mind and his [relative] had been in hospital and then there was so much stress he stopped calling his mum.

36. I asked the applicant why, if the youth or his [relative] or the government wished to harm him, they did not do that when he returned to Nigeria in 2010. The applicant said that he was in hiding, and not many people knew he was back. I noted that I may take the view that because he had returned in 2010 and nothing had happened, I might also think that if he returned now nothing would happen to him. The applicant said he had sent his wife first to Nigeria as if they saw him they would know. His wife went there and spent a week there so they didn’t know he was in the country. The only reason he had gone to Nigeria was because he had had no option. I noted again that if nothing had befallen him when he had travelled to Nigeria ten years ago for a reasonable period, over three months, I might think nothing would happen to him if he returned now. The applicant responded that they control the country, his [relative] is unhappy with him as he exposed him for embezzlement, and that puts the applicant in great danger.

37. I asked the applicant if there were any other reasons he feared return. The applicant said that the people he had associated with, they were in Australia, the ones whose drugs had been seized when the applicant was arrested, he was getting threats made to his family, because of the one Nigerian that was there at the time. He felt from that conviction he would be jailed and harmed. He said he was also worried the Nigerian government would throw him in jail if he was deported because of the drug conviction.

38. I asked him to tell me more about these claims. He said that since he had been arrested he had not had any contact with them ever again, when he got arrested, he was speaking to his family and they told him that these people think it was his fault and the pressure was too much, all this happened a long time ago, he had not had any contact with them to date.

39. I explained to the applicant that from what he had told me, I might think that any chance of him being harmed for these reasons was remote – I was not sure anyone associated with the drugs and his arrest in Australia would be able or willing to target him in Nigeria, given he said those people were in Australia. I noted that I would consider any harm in Nigeria because of his conviction for drug offences in Australia but that it did not appear to be the case that the Nigerian government would in practice prosecute him. I explained as well that if he was returned to Nigeria now it would not be a criminal deportation but a removal, and there did not appear to be more than a remote chance that his offences and sentence in Australia would come to the attention of the Nigerian authorities.

1. After a break the applicant said that his passport had been left with Australian officials when he came here. He explained that because he came here as staff (of the government of Nigeria) his passport had been deposited with Australian officials. I asked what passport he had used to travel to [Country 1], [Country 2] and Nigeria in 2010 and he conceded that the passport left with Australian officials had expired and he had a new passport, on which his name was the same. He said again that when he had returned to Nigeria he was in hiding and if he returned it would be humiliating for him and his family. He said it was better to die here than face torture in Nigeria.

2. I raised his mental health with the applicant, and noted I had had regard to the evidence in the submission. I asked him about the statement that he had had a relapse of his symptoms since being detained in the detention centre. The applicant responded that since his arrest he had stopped using drugs, he had never touched drugs up to today, he had moved forward. He noted the TAFE certificates and said he had not finished these in prison but had come out and taken upon himself to better himself.

3. Later in the hearing he said that he felt the same in terms of his symptoms to when he had gone to jail. He was not sleeping at all, he ate only once a day. He thought he was ok but then the depression is just getting worse, all this information is just too hard for him, and if he had to go back he doesn’t know what would happen. He said the will to live is not there.

4. He said with his mental health symptoms, he would be chained up or locked up in a mental health institution if he returned to Nigeria. I explained that from my reading of the country information supplied with the submission, and other country information, I might consider there would not be a real chance or real risk of this outcome because his symptoms of anxiety and depression may not be significant enough to lead to him being locked up. I noted further that the country information tended to indicate these sorts of treatments appeared more prevalent for people in villages or from the country rather than from cities such as where he would be returning to. The applicant responded that he knew a place where they take people with mental illness, who are shackled and chained. He said if he returned his mental health would get worse and he might have a call to his son and the way his son would react would just pull him down. He said mental illness is still very misunderstood over there.

5. I asked the applicant about his relationship with his family in Nigeria. He said that he talked to his mum most of the time, but that since being in detention he had not been talking to her that much, he had not told her he was in detention, she was old and he didn’t want to be a burden to her. He said he had talked to his younger brother. I asked if he returned would he live with his younger brother and he said before he had lived with his mother, she was staying with his brother and if he had to go it would be with one of them, he didn’t know which one. I noted that I might think he could find work in Nigeria and subsist there. He said if he could work, he didn’t know. I noted that he had worked in Australia and Nigeria, so I might think he could find work there. He said that the way [specified] work was done here was not the way it was done in Nigeria, they used traditional techniques. I noted that perhaps he could introduce techniques he had learned in Australia.

6. I asked the applicant to tell me about his relationship with his step-son and his daughter. He said he had a wonderful relationship with his children, he spent time with them after work, he would take them to [play sport], and since he had been in detention he could not do that. He said when he called to speak with them they turned away from him.

7. I noted the submission information that he had been supporting his wife and his daughter’s mother. financially it is just the time he spent with them, he got a reward spending time with the kids.

8. The applicant when asked said that if he had to return to Nigeria he would go back without them, but he would rather die in peace here than go back there.

9. I asked if he had to return to Nigeria, would his wife and his daughter’s mother be in a difficult financial situation. He said that most important thing was having the love from him; the government would step in for financial assistance. He said that thinking about this did not give him a good mindset.

10. I asked the applicant if there was any reason he feared return other than those we had discussed. He said there was not. I asked if there was any other reason or basis on which he feared harm on return to Nigeria. He said he thought we had spoken about all of them.

11. The representative submitted that the country information, in particular the Human Rights Watch article from 2019, made reference to mental health facilities, including facilities in the city, and that all of them have the same types of treatments for mental health. He noted that the mental heath evidence indicated that if the applicant is returned to Nigeria he would require further assessment and treatment for depressive symptoms. There were also suggestions that his mental health will worsen.

    Post hearing submission

12. After the hearing the applicant’s representative provided a submission. This explained that the applicant had been consulting a counsellor at the detention centre and provided the mental health consultation notes from the applicant’s counsellor. the submission quoted from a number of articles about the situation of mental health treatment in Nigeria.

13. The detention centre health notes indicate that the applicant has been seeing a counsellor regularly since his detention in March 2020. The notes indicate that the applicant is regularly seeing a counsellor who reports his dysphoric mood, anxiety and stress, and that a strengths based approach has been taught to the applicant to work on the things he can change.  

    Findings

14. The applicant provided copies of his Nigerian passport and birth certificate to the Department. On the basis of this information I accept that the applicant is a national of Nigeria, which is also his receiving country.

    Mental health

15. I have carefully considered the report dated 6 May 2020 from the clinical psychologist. I have also had regard to the information contained in the counsellors reports that in detention the applicant has reported dysphoric mood, anxiety and stress.

16. I have had regard to the opinion of the clinical psychologist. The psychologist relates that the applicant described the onset of depressive and anxiety symptoms since his detention, including, difficulties sleeping, cognitive rumination, a pervasive low mood, lethargy, a sense of worthlessness and suicidal ideation. The psychologist assessed the applicant:

    … as satisfying the criteria for Adjustment Disorder, with mixed anxiety and depressed mood (DSM-5 309.28). This disorder is characterised by the development of emotional and/or behavioural symptoms as a direct consequence of an identifiable stressor, specifically his immigration matters and his fear of being separated from his family. The nature of this condition indicates that the symptoms will persist whilst the stressor continues to be present, however will subside once the stressor has been removed or resolved. It was also my opinion that [the applicant]’s symptoms are likely to escalate further should his appeal be unsuccessful or the matter be prolonged; and concerns were raised with regard to his risk for future self-harm should he be forced to leave his family and return to Nigeria.

17. I accept the assessment of the clinical psychologist and accept that the applicant is displaying symptoms of Adjustment Disorder, with mixed anxiety and depressed mood.

18. I note the concerns also raised in the assessment that should the applicant remain detained or be returned to Nigeria, the psychologist considered it likely the applicant would require further assessment and/or treatment with regard to underlying depressive symptoms.

19. The report of the psychologist also raised an additional concern, that there would be a significant impact on the applicant’s wife and children should he be detained for a prolonged period and/or deported:

    … it was noted that [the applicant] had provided financial support to his wife and stepson, in addition to his daughter and former girlfriend, prior to being in detention. Both women provided statements to this effect, expressing concerns as to future financial stability and their ability to cope as single mothers should [the applicant] be unavailable to care for his children. Further, his two young children would likely suffer from the effects of separation from their father, particularly as he had been so actively involved in parenting prior to his detainment. It was noted [the applicant] became visibly upset when discussing his children during the assessment, and it was felt his separation from his children would also significantly impact on his own mental health and wellbeing.

20. I accept that the separation would have a very profound effect upon the applicant, his wife, his stepson, his daughter and his daughter’s mother. This cannot be overstated, and I have carefully considered the applicant’s testimony and the letters from his wife and his daughter’s mother.

21. However, my role is to assess the harm to the applicant if he is returned to Nigeria from Australia. In this regard I note that s.36(2)(a) is concerned with persecution of an applicant by other persons for a nexus reason and does not encompass the harm an applicant may suffer as a result of an illness arising on return to their receiving country.[1] Further the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[2] It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[3] I have considered his claims that he will be harmed on return by others in Nigeria because of his mental health, below.

    [1] CSV15 v MIBP [2018] FCA 699 at [31] and [34].

    [2] The language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person: GLD18 v MHA [2020] FCAFC 2 at [37].

    [3] CHB16 v MIBP [2019] FCA 1089 at [65]–[68]; CSV15 v MIBP [2018] FCA 699 at [34]; SZDCD v MIBP [2019] FCA 326 at [48]; EZC18 v MHA [2019] FCA 2143 at [47].

22. I have had regard to the harm that may be caused to the applicant’s Australian family in my consideration and recommendation of referral to the Department for the Minister’s consideration, below.

23. I have also had regard to the applicant’s mental health and his capacity and ability to engage in the review. I was pleased that the applicant had competent representation. At the hearing the applicant responded appropriately to questions and was aware of the purpose of the review. Having regard to his diagnosis and his behaviour at the hearing I assess that the applicant had capacity to engage in the hearing and the review more generally and was not incapacitated in his ability to do so.

    Harm on return for reasons of his past employment at the Ministry of Youth

24. The applicant worked as a personal assistant to his [relative] at the Ministry for six months until coming to Australia [in] 2008. I accept that during this time his [relative] was taking his salary. I accept that around March 2008 at a forum in [State 1], the applicant and his colleagues were physically assaulted by youth because the youth believed the Ministry was making bogus promises. I accept that following this police protection was provided to Ministry staff during work hours. I accept there may have been other instances where there were demonstrations or violence or the throwing of stones at events and they had had to leave quickly. I am willing to accept that the applicant was on the TV all the time. However, at the hearing the applicant said there was no chance he would return to working for the Ministry if he was returned to Nigeria, as his [relative] had retired and that position was not there for the applicant anymore. When he was asked why anyone who had been ‘the youth’ 12 years ago would still be concerned with him or wish to harm him, he was not able to explain why this would be.

25. I have considered the applicant’s claims that he fears harm from ‘the youth’ on return because of his past employment with the Federal Ministry of Youth Development in [State 2], but I find there is no real chance or real risk of him being harmed on return in connection with these past events. Whilst I have accepted his past employment, the protests and violence that occurred, and that he may have been on TV in his role as his [relative]’s personal assistant the applicant was clear that he would not be returning to his employment for the Ministry. There is therefore, I find, no real chance or real risk that he will experience these events as an employee of the Ministry in the reasonably foreseeable future. I have considered whether he will face a chance or risk of harm on account of his former employment. However, the applicant, as he explained, was the personal assistant to his [relative], not in a position of power or influence. I therefore do not accept that he was the focus of the anger of the youth who conducted demonstrations and violence. Similarly, his appearances on TV, I find, would have been incidental to his [relative] and others’ roles. I therefore do not accept that he would be known or recognised as a former employee of the Ministry, and I note that 12 years have passed, and that the applicant was only employed for six months. When taken together, these facts lead me to find that there is no real chance or real risk of the applicant being recognised, and harmed, by ‘the youth’ or anyone else for reason of his former employment with the Federal Ministry of Youth Development in [State 2] if he is returned to Nigeria now or in the reasonably foreseeable future. 

    Harm from his [relative]

26. The applicant claims that his [relative] will harm him because the applicant exposed his embezzlement and because the applicant did not return to Nigeria and his [relative] considered the applicant “under his care” and ruined his [relative]’s reputation by overstaying after [Conference 1] in Australia.

27. At the hearing the applicant told me that his [relative] had retired from politics. He said his [relative] is living in Abuja. I asked the applicant if his [relative] had faced any repercussions after the applicant exposed that his [relative] had taken his salary or from the applicant not returning to Nigeria after [Conference 1]. The applicant responded that his [relative] had taken time off and was in hospital for a while, the applicant was not sure what sickness his [relative] had. I put to the applicant that it appeared nothing had happened to his [relative] because of the applicant’s actions, his [relative] had now retired, and these events had happened 12 years ago. The applicant asserted that these things were still fresh in his [relative]’s mind and the applicant had cut off contact with his family because it was stressful.

28. I accept that the applicant’s [relative] may have been embarrassed and disappointed and angry at the applicant for exposing that he was taking the applicant’s salary and because the applicant did not return to Nigeria after [Conference 1], and I am willing to accept that his [relative] may still harbour these feelings towards the applicant. But from this evidence, it appears that the [relative] suffered no repercussions apart from taking time off and being in hospital, which may or may not have been connected to these events, and his [relative] has now retired. From the applicant’s evidence, I do not accept that the applicant’s [relative] would take any steps to harm the applicant for events that happened 12 years ago, that did not lead to significant consequences for the [relative] and where his [relative] has now retired. I do not accept that his [relative] is still very angry for events which happened 12 years ago. Even if his [relative] had wished to harm him in some way immediately after his exposure and after the applicant did not return to Nigeria in 2008, this was a long time ago and the [relative]’s situation, now retired, has materially changed. I do not accept that there is more than a remote chance or risk his [relative] would wish to harm the applicant or tell the Ministry of the applicant’s return to Nigeria now or in the reasonably foreseeable future.

    Harm on return for reasons of his non-return after [Conference 1]

29. The applicant claims to fear he will be detained, tortured, punished or killed on return by government authorities because of his failure to return to Nigeria after [Conference 1]. He claimed that 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 [Conference 1] as expected.

30. At hearing the applicant said he was the only person who did not return to Nigeria after [Conference 1] and he would be in big danger if they knew where he was. He said when he did not return in 2008 with the group he came here with, there was a lot of pressure to bring him back. Later he said that he had come to Australia through the Nigerian government and they had paid for his travel so when he returned the authorities would be waiting for him. He also explained that his passport had been deposited with Australian officials when he arrived here in 2008.

31. As I noted to the applicant, I was not convinced by his claim that the authorities would do anything more than require him to repay his airfare from his 2008 travel, which I do not accept amounts to serious or significant harm. the applicant has provided only vague details about why, and who, would be willing to harm him some 12 years later because he failed to return to Nigeria and/or to his employment with the Department. On the very limited evidence he has provided I am not convinced that the Nigerian authorities, the Department, or anyone else would be motivated to seriously or significantly harm him because he did not return in 2008.

32. A further difficulty with his claim to fear harm on this basis is that the applicant, as he conceded at the hearing, had travelled to Nigeria in 2010 and remained there for approximately three months. The applicant claimed he was in hiding, and that he sent his wife there first, so they didn’t know he was in the country. These claims of the applicant were vague – he did not explain how he managed to remain in hiding for three months, or why sending his wife first assisted him to hide. The applicant responded that they control the country, which tends to undermine his claim that he managed to be in hiding for three months. on the vagueness and lack of coherence in this claim I do not accept that the applicant was in hiding in 2010, nor that, if the authorities or anyone else had wished to find him they could not have done so. I find the fact that the applicant returned to Nigeria in 2010, only two years after failing to return, and did not face any problems from the authorities, his [relative] or anyone else, to be highly indicative that the applicant is not wanted by the authorities or anyone else because of his non-return after [Conference 1] in 2008. I note that the applicant was also able to obtain a further passport with which he conceded he had travelled to [Country 1], [Country 2] and Nigeria.

33. I therefore do not accept that there is a real chance, or a real risk of the applicant being seriously or significantly harmed by the authorities or anyone else because he did not return to Nigeria after [Conference 1], now or in the reasonably foreseeable future.

    Harm on return due to his criminal convictions in Australia

1. The applicant has not raised this claim directly, but it may arise on the material. The applicant will return to Nigeria having been convicted of drug offences in Australia. The DFAT report indicates that:

   Nigerian citizens returning from overseas with a criminal record may be charged under Decree 33 (the Decree) of the National Drug Law Enforcement Agency Act 1990. The Decree provides for the prosecution of Nigerians returning to Nigeria with criminal convictions from overseas – including those with drug convictions and other serious crimes including money laundering, fraud, armed robbery and rape. The minimum sentence under Decree 33 is five years imprisonment. In practice, DFAT understands the Nigerian government has rarely given effect to the Decree. The most recent application DFAT is aware of was in 2005.[4]

   [4] DFAT Country Information Report Nigeria 9 March 2018, 5.31.

2. I note that other information indicates that in 2009 there was talk from the Nigerian National Drug Law Enforcement Agency that they were working to abolish the Decree.[5]

   [5] Vanguard News, “Decree 33 to go”, 9 October 2009,

3. I consider that the country information indicates that Decree 33 is not actively used to prosecute Nigerians returning to Nigeria with convictions, including drug convictions such as the applicants.

4. At hearing I noted the above information and also noted that the applicant, if he was returned, would not be returned as a criminal deportee, which may mean that his drug offences may not become known to the Nigerian authorities anyway. The applicant did not raise and concerns or say anything further about this.

5. Considering the country information before me, and noting that the applicant did not provide additional information on this point, I do not accept there is a real chance or a real risk that the applicant will be prosecuted because of his drug conviction in Australia if he is returned to Nigeria now, or in the reasonably foreseeable future.

   Harm from those whose drugs were seized

6. The applicant claims before the Department, and at the hearing, that he was scared that those who owned the drugs he was supposed to be picking up when he was arrested would harm him. He claimed that his family were being threatened because they had seized their drugs and there was one Nigerian there. At the Department interview he said that the people who got him involved in drugs in Australia put pressure on him because of their lost product. The last time he had any contact with any of them was before he went to jail. The person who got him into drugs was “[Mr B]” (a Nigerian national from Rivers State) and he no longer associates with him. He fears harm from [Mr B] because the drugs were not recovered. At hearing the applicant had said that the drugs belonged to people in Australia and said since he had been arrested he had not had any contact with them ever again. I asked him to provide more detail about these claims and he was unable to do so. When I expressed doubt that he would be targeted for harm by these people (who he said were in Australia), or anyone associated with them in Nigeria, the applicant did not respond directly.

7. I accept that those who owned the drugs seized when the applicant was arrested may have been unhappy and displeased that the drugs were seized. But I do not accept, on his vague and undetailed evidence, that these people would be motivated to harm him or able to. The applicant gave evidence that he has not had any contact with these people since his arrest. I do not accept that these people would blame the applicant for the drug seizure as he was imprisoned, and the applicant was unable to explain how these people, or their associates threatened his family or how they would harm him on return to Nigeria now or in the future.

8. On the basis of the applicant’s vague and undetailed claims, and given the concerns above, I do not accept that the applicant’s family were threatened by those who owned the drugs or their associates at any time. I do not accept that the applicant will face serious or significant harm from [Mr B], anyone else owned the drugs, or their associates if he is returned to Nigeria now or in the reasonably foreseeable future.

   Harm from removal from his Australian family

9. The applicant has claimed 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.

10. The most detailed evidence given by the applicant at hearing was his evidence of his anguish at the prospect that he would be removed from his Australian family. I unreservedly accept that the applicant will find separation from his family very hard and that he fears such separation.

11. However, the legal position is that ‘persecution’ must be ‘for reasons of’ one of the nexus grounds and carries an element of motivation to the infliction of harm on the person.[6] I do not accept that the act of removing the applicant to Nigeria, in order to comply with the Act, would constitute, or contain, such an element of motivation to inflict harm on the applicant. For the purposes of complementary protection, the courts have established that separation from an applicant’s family in Australia, where the claimed harm arises from the act of removal itself, will not meet the definition of significant harm in s.36(2A).[7]

    [6] Applicant A v MIEA (1997) 190 CLR 225 at 233;

    [7] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–-[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58].

12. It is also claimed that the applicant’s removal will be against Article 3 of the Convention on the Rights of the Child which requires the best interests of the child(ren), being his stepson and his daughter to be a primary consideration in all actions concerning children. This argument forms a large part of the reason I have referred this matter to the Department to be brought to the Minister’s attention, below. The difficulty is that the questions I must answer concern my assessment of the chance or risk of harm to the applicant if he is returned to Nigeria. In other words, is the applicant a refugee, or owed complementary protection. The provisions are clear, and narrow in the sense that they require an answer to those questions, and those questions alone. The best interests of the child are not able to be taken into account in these considerations because they do not form a part of answering either of those questions.

13. I find therefore that there is no real chance or real risk of the applicant suffering serious harm amounting to persecution, nor significant harm as that term is defined, for reasons of his separation from his family in Australia or because his return to Nigeria may be in contravention of Article 3 of the Convention on the Rights of the Child. 

    Harm on return to Nigeria for reasons of his mental health

14. The applicant, as accepted above, suffers from Adjustment Disorder with mixed anxiety and depressed mood. He claims that he will be harmed by the Nigerian authorities and/or community through common mental health treatments in Nigeria, including being shackled with iron chains, and/or being arrested by police and forced into a government run mental health facility.

15. As above, I have considered the psychologist report dated 6 May 2020 as well as the counsellor reports provided after the hearing. I have accepted that the applicant suffers from Adjustment Disorder with mixed anxiety and depressed mood. I accept that this includes symptoms of lethargy, sleeping difficulties, low motivation, a reduced appetite, feelings of worthlessness, a pervasive low mood and suicidal ideation. The psychologist report refers to a relapse of these symptoms since the applicant has been detained [at the Immigration] Detention Centre. It is also argued that without the protective factors of his Australian family if he is returned to Nigeria, he would not be able to access adequate mental health treatment and would be at a greater risk of suicide.

16. I have had regard to the articles and reports provided prior to the hearing. In particular, the Human Rights Watch investigation ‘Nigeria: People With Mental Health Conditions Chained, Abused’ of November 2019,[8] which says that thousands of people with mental health conditions across Nigeria are chained and locked up in various facilities where they face terrible abuse.

    [8] Human Rights Watch, “Nigeria: People With Mental Health Conditions

17. I have considered the post hearing submission that the applicant’s symptoms in detention are consistent with his assessment of Adjustment Disorder with mixed anxiety and depressed mood, which I have accepted. The submission argues that if he is separated from his Australian family he will face significant mental health issues. The submission also included the most recent DFAT report and other news articles on mental health.

18. The submission quotes from several included articles on the situation for sufferers of depression in Nigeria. I note that the applicant has been diagnosed with a disorder with depressed mood, so I appreciate that the articles relating to depression in Nigeria are relevant.  They indicate that depression and other mental illnesses are a real problem in Nigeria and that Nigeria has a lack of psychiatrists and mental health facilities and outdated mental health laws. A news report from the Guardian refers to the Human Rights Watch investigation above.

19. The DFAT report states:

    The Nigerian government formulated its first mental health policy in 1991 but never formally assessed its implementation. In 2003, the government introduced a Mental Health Bill but withdrew it 2009. The bill was re-introduced to the National Assembly in 2013 but is yet to be enacted.

    The World Health Organisation (WHO) reports significant gaps in mental health services in Nigeria. There are fewer than 150 psychiatrists in the country and few neurologists. The government reports approximately five psychiatric nurses per 100,000 population and very few clinical psychologists, social workers, neuro-physiotherapists, and occupational therapists. Psychotropic drugs are rarely available and health information systems do not incorporate mental and neurological health measures.

    Mental health issues remain highly stigmatised in Nigeria, with many families hiding conditions or blaming family members’ mental illness on curses or witchcraft. DFAT is aware of several cases in rural areas of individuals suffering from a mental illness being chained and/or caged in churches or dwellings.[9]

    [9] DFAT Country Information Report Nigeria 9 March 2018, 2.19 – 2.21.

20. The UK Home Office carries more recent country information on mental health in Nigeria in their country policy and information note ‘Nigeria: Medical and healthcare issues’:

    The MedCOI country contact noted that ‘There are 8 neuropsychiatry hospitals throughout the country. Each of the accredited medical schools and the attached teaching hospitals has a psychiatry department. There are also six state-owned mental hospitals financed and managed by various state governments.’

    According to the MedCOI country contact ‘the treatment of mental illness is possible in public hospitals. There is no form of mental illness for which treatment is not available in Nigeria. Human resources are not sufficient for the country’s needs.’ The online publication Punch noted that a consultant psychiatrist at the University of Ilorin Teaching Hospital stated that ‘there are less than 300 psychiatrists to Nigeria’s estimated 180 million people.’ There is also a training of health care workers at the primary health care level to diagnose common mental illnesses.

    …

    Treatment facilities are mainly located in the urban and in some semi-urban areas, according to the MedCOI country contact and BMC Health Services research. A Psychiatry Journal study noted that Nigeria has a significant intracountry disparity in the mental health personnel resources’ distribution. The north-eastern region is the least resourced, with a weak mental health system that is poorly funded and has very few mental health professionals, as compared to the rest of the country.

    Information obtained from MedCOI sources indicated the availability of in and outpatient treatment by psychiatrists and psychologists from public facilities. The same source also indicated the availability of psychiatric counselling and medication assistance by psychiatric nurse from public facilities. In addition, the same source indicated the availability of psychiatric treatment in the form of sheltered housing, assisted living and care at home by psychiatric nurse from private facilities.

    Information obtained from MedCOI sources (based on assessments by MedCOI contacts) indicated the availability of in and outpatient treatment by psychiatrists and psychologists from public facilities; psychiatric counselling, medical assistance by psychiatric nurse, care at home by a nurse from private facilities.[10]

    [10] UK Home Office, Country Policy and Information Note Nigeria: Medical and healthcare issues, January 2020, 6.9.1 – 6.9.6, >

    The European Asylum Support Office (EASO) country guidance on Nigeria states that access to healthcare is uneven and that persons with mental disabilities often suffer social stigma, exploitation and discrimination, and medical care is scarce, and states that the nature and visibility of the mental of physical disability may increase risk of the person being harmed.[11]

    [11] EASO Country Guidance: Nigeria, February 2019, 65 – 66, >

    As above, I note that in relation to the claims that have been raised, my role is to assess the harm to the applicant if he is returned to Nigeria from Australia, s.36(2)(a) is concerned with persecution of an applicant by other persons for a nexus reason and does not encompass the harm an applicant may suffer as a result of an illness arising on return to their receiving country.[12] Further that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[13] It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[14]

    [12] CSV15 v MIBP [2018] FCA 699 at [31] and [34].

    [13] The language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person: GLD18 v MHA [2020] FCAFC 2 at [37].

    [14] CHB16 v MIBP [2019] FCA 1089 at [65]–[68]; CSV15 v MIBP [2018] FCA 699 at [34]; SZDCD v MIBP [2019] FCA 326 at [48]; EZC18 v MHA [2019] FCA 2143 at [47].

21. At the hearing I raised with the applicant my doubts that he would be harmed on return to Nigeria suffering from Adjustment disorder with the symptoms of anxiety and depression as described in the psychologist report (which is consistent with the symptoms described by the counsellor) may not be significant enough to lead to him being locked up. I note that such symptoms may not be identified and stigmatised as readily as symptoms associated with schizophrenia or bipolar disorder, and note in this regard the EASO report indicates the nature and visibility of the mental disability has an impact on the risk. The applicant said if he returned he would get worse and mental illness is very misunderstood over there. I further noted to the applicant that the information, as above, indicated that these sorts of ‘treatments’ including chaining appeared more prevalent for people in villages or from the country rather than from cities such as where he would be returning to. The applicant responded that he knew a place where people were chained. The applicant also gave evidence that he spoke with his mother most of the time and with his younger brother and would live with one of them, and that he had reasonable prospects of getting employment. The representative submitted that the country information, in particular the Human Rights Watch article from 2019, made reference to mental health facilities, including facilities in the city, and that all of them have the same types of treatments for mental health. He noted that the mental heath evidence indicated that if the applicant is returned to Nigeria he would require further assessment and treatment for depressive symptoms. There were also suggestions that his mental health will worsen.

22. I have considered all of the information before me. I accept that mental health is poorly understood and under resourced in Nigeria. I accept that in some facilities people are chained or otherwise ‘treated’ in a manner that would constitute serious or significant harm. However, I also note that the country information, in particular the UK home office report of this year, notes that there are psychological and psychiatric services, that there is a lack of trained practitioners but that primary health care workers have been trained to diagnose mental health. This report also notes that there is a disparity between cities and rural areas, and services are particularly lacking in the North-Eastern region. I note the applicant’s family lives in the South, in a city. I note that the Human Rights Watch report acknowledges that some of the facilities at which they saw people chained have been shut down by the Nigerian authorities. I note that the articles on depression in Nigeria provided after the hearing indicate that there is a growing awareness of depression and better ways to treat depression expressed in these articles, which may indicate a changing attitude towards mental illness and a de-stigmatisation.

23. If the applicant returns to Nigeria I accept that he will continue to suffer from Adjustment Disorder with mixed anxiety and depressed mood, and I accept that, removed from his Australian family, his symptoms are likely to worsen. However, he will have some protective factors including living with family and the real prospect of being employed. He has been working on strategies to manage his symptoms with his counsellor. He will also not be detained in a detention centre, which he indicated had caused his symptoms to worsen to the same level as when he was jailed. The applicant will also be returning to a city, where, according to the country information, there is a greater chance of receiving treatment for his mental health condition, that is, evidence-based treatments that do not involve chaining or other practices. Further, I find that the greater prevalence of such treatments in the city means there would be less likelihood of chaining and other practices occurring in cities such as Enugu.

24. I accept that the applicant has demonstrated symptoms of suicidal ideation, and he expressed this at the hearing. I believe as above that he may have protective factors in Nigeria that would make his suicide unlikely. But, sad as it is to say so, if he were to suicide, on the authorities above, I find that this would not constitute persecution or significant harm.

25. Considering the country information before me, and the inferences I have made on having read that information, I consider that if the applicant, with the mental health disorder as I have accepted it, the symptoms as accepted, and accepting that these symptoms may worsen as above, but taking into account the protective factors, lack of detention, the mental health treatments available, I find that there is no real chance or real risk that the applicant will be subjected to chaining or any other treatments which would constitute serious or significant harm by the authorities, community or anyone else on his return to Nigeria now or in the reasonably foreseeable future.

    Summary

100.   In summary, I have considered the claims of the applicant, above. I have carefully considered whether his claims lead to a real chance of persecution or to a real risk of significant harm. For the reasons above, they do not. 

101.   I have considered the applicant’s claims cumulatively. The applicant is a Nigerian national, with Adjustment Disorder with mixed anxiety and depressed mood, who has an Australian family from whom he would be separated if he is removed, who worked for his [relative] at the Department of Youth for six months in 2008, and exposed his [relative] for taking his pay, and who did not return to Nigeria after [Conference 1]. He has been convicted of drug offences in Australia, and this may have upset those whose drugs were seized. Taking into account everything I have accepted about the applicant, I find that there is no real chance or real risk of him suffering serious or significant harm on return to Nigeria, now or in the reasonably foreseeable future.

Conclusions

102.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

104.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

Ministerial intervention

105.   Having regard to the applicant’s circumstances, in particular his Australian citizen young daughter, step-son and his Australian citizen wife  and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

106.   The applicant has provided copious information about his relationship with the children, his wife and the mother of his daughter.

107.   I have had regard in particular to the letters from the applicant’s wife and the mother of his daughter, and to the photographs of the children with the applicant. I note the information in the psychologist’s report that the applicant has provide financial support to his children and their mothers, and that the two young children would likely suffer from the effects of separation from their father, particularly as he had been so actively involved in parenting them. At hearing the applicant gave heartfelt and convincing evidence of his attachment and care for the children, and his wife. The letters from his wife and the mother of his daughter, which I accept unreservedly, speak of the care and support that he provides to them, and of the close emotional bond he has with his children. I consider the evidence indicates that it would be in the best interests of the two young children if they could continue to have contact and the support of their father.

108.   I note also that it appears from the evidence provided that the applicant has reformed since leaving jail, that he has been gainfully employed, has continued further vocational studies, and that his family and his attachment to them would be a considerable protective factor against him engaging in further criminal action.

109.   I put this forward for the referral to the Department for the Minister’s attention with the provided evidence.

DECISION

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

Sean Baker
Member

ATTACHMENT  -  Extract from Migration Act 1958

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.

…

Chained, Abused”, 11 November 2019.