2006347 (Refugee)

2006347 (Refugee) [2023] AATA 1975 (10 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006347
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Wayne Pennell
DATE:10 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 March 2023 at 12:25pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – threats of harm from those responsible for deaths of mother and father – rogues took possession of father’s properties and dispossessed applicant – delay in applying for protection – vague and inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310
Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 18 March 2020.
The applicant who claims to be a citizen of Nigeria applied for a protection visa.[2] The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nigeria, there was a real risk he would suffer significant harm. Nor was the delegate satisfied that the applicant was a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[4]
[2]The applicants’ application was received by the Department of Home Affairs on 21 November 2017.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision.[5] Accompanying that application was a copy of the delegate’s decision. At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone.[6]
[5]The applicants’ application was filed on 27 March 2020.
[6]The Tribunal advised the applicant on 9 November 2022.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[7]He subsequently advised the Tribunal that he would appear at the review hearing to give oral evidence and present arguments.
[7]The Tribunal’s review hearing was listed for 19 December 2022.
The hearing was originally scheduled for 19 December 2022. However, it was adjourned on that day because the applicant had not filed any evidence to support his application, and he was clearly not prepared for the hearing. Having regard to the principle of procedural fairness, the Tribunal adjourned the hearing to allow the applicant a further opportunity to prepare for the hearing. That evidence was later provided to the Tribunal[8] and the hearing recommenced on 6 March 2023.
[8]On 23 February 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] 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.
[9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]
[10]Migration Act1958 (Cth), s 36(2)(a).
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.[11] 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.[12]
[11]Migration Act1958 (Cth), s 5H(1)(a).
[12]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[13] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[14]
[13]Migration Act 1958 (Cth), s 5J(1).
[14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[16] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[17]
[15]Migration Act 1958 (Cth), s 36(2)(a).
[16]Migration Act 1958 (Cth), s 36(2)(aa).
[17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]
[18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]
[19]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Nigeria and he provided a copy of his passport to authenticate this claim. The applicant’s most recent passport was issued by the Nigerian Consulate in Canberra and the Tribunal accepts his identity.[20] Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Nigeria is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[21]
[20]Passport issued [in] 2021.
[21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[22]
[22]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[23] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[23]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nigeria, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[24]
[24]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear, or that it is well-founded, or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[25] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[26]
[25]Migration Act 1958 (Cth), s 5AAA.
[26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANT’S CLAIMS AND THE EVIDENCE
The applicant was born in Nigeria on [date]. He is currently aged [age]. [In] December 2016, he arrived in Australia (via [Country 1]) on a student visa. Almost eleven months later,[27] he applied for a protection visa. The cancellation of his student visa and the making of his protection visa application are discussed later in these reasons.
[27]On 21 November 2017.
At the hearing, the applicant confirmed that he started school at age five. He finished school when he graduated from grade 12 at the [named] School in Lagos. He said that it was around this time that his mother died [in] 2001. He initially told the Tribunal that he thought he was “probably aged about [age]” at that time, however in further discussions it was established that she died a few days before he turned [age]. When asked how it was that he managed to finish grade 12 in such a short time he said that during school he was able to compete for attendance to higher classes. He did that twice and that was how he was able to finish grade 12 at the age of [age] in 2002.
What followed his schooling was in about 2003 to 2004, he attended [School 1], which is about [distance] from Lagos. He completed [Diploma 1], graduating in 2006 to 2007. When asked where his certificate of graduation was, he said that he was unable to produce the certificate. When he finished his diploma, he returned to Lagos where he worked as a street hawker.
In his pre-hearing submissions, the applicant explained his family background and said his father owned two properties in Lagos. He said that he (the applicant) nursed a serious trauma after the death of his parents. His claimed that his mother died due to an issue she had with some rogues who claimed to have possession of her property. The issues lingered, and she was charmed with African magic and died a few days before his birthday. His mother had no support from any family members, and she told the applicant that her parents never wanted her to marry his father. As a result, he does not know a single member of his mother’s family.
During the hearing, the applicant told the Tribunal that he had no siblings and his parents kept him isolated from his aunties and uncles. When discussing his mother’s death, he explained that she died of African magic. He described that someone ‘charmed’ his mother with some type of black magic or voodoo. She became ill and she was taken to a hospital. The medical staff could not establish what was making her ill, so they suggested that his father take her to a spiritual treatment. He claimed that her actual cause of death is unknown.
He told the Tribunal that after his mother’s death, he attended [School 1] before moving back to Lagos and living with his father. He said that sometime around 2005, his father died. The applicant claimed that his father’s death certificate stated the cause of death was depression. He also claimed that his father’s depression was caused by people who the applicant refers to as ‘rogues’ taking of his father’s properties.
Within his pre-hearing submissions, the applicant claimed that a few weeks following his father’s death, the rogues kicked him out of his father’s house. He was so young then, aged just [age] with no family members, and he did not know anyone. He said he became homeless and was hawking sachets of water on the streets of Lagos to survive.
The Tribunal notes that this evidence is inconsistent with his oral testimony. He told the Tribunal that his mother passed away in 2001, and her death was a few days prior to his birthday. Therefore, although he was technically still aged [age] when she died, it was five days before his [age] birthday. His oral testimony was that after her death, he finished grade 12 of his education in 2002 and graduated at age [age]. He then attended [School 1] and spent [number] years completing [Diploma 1], graduating in 2006 to 2007.
Within his pre-hearing submissions, he outlined why he left Nigeria. He said:
I lived in the building (belonging to his father) after my dad’s demise before the so called rogues showed up and again kicked me out of the building, no one to run to, I was so young, just [age] years of age at that time….
Notwithstanding that his oral testimony suggests that his father died in 2005, his pre-hearing submissions suggests it was 2006, the Tribunal observes that if he completed his diploma in 2006 or 2007, and then returned to Lagos to live with his father he could not have been aged [age] as claimed. He turned [age] in 2002, and would have been [age range] years of age in 2006 to 2007. When assessing those discrepancies, the Tribunal does accept that he was at the age he said he was when his father died.
The applicant’s pre-hearing submissions continued on to outline that a clergyman, [Pastor A] found the applicant and picked him out of the street. He housed the applicant, fed and clothed him and then sponsored his trip to [Country 1] in 2011. His oral testimony was that [Pastor A]’s assistance took place over three years, suggesting that it was from 2008 to 2011. The applicant claimed that [Pastor A] thought the applicant needed to leave Nigeria to get far away from the same type people who killed his parents because of their property. The Tribunal notes that notwithstanding the applicant’s claim of a close relationship between himself and [Pastor A], no evidence was provided by him.
When discussing why he relocated to [Country 1], the applicant explained that since leaving Nigeria [in] August 2011, he has never returned. He went to [Country 1] to escape the threats of “these rogues”. He claimed that these rogues said they would kill him as they did to his parents. He claimed that he needed to start a new life. When considering those claims, the Tribunal finds that they were vague and lacked specificity. His only evidence he gave of him ever interacting with the unidentified person or persons her refers to as ‘rogues’ occurred when he returned to Lagos and his father passed away.
His entry into [Country 1] was by way of a visitor visa that was valid for three months. He was then granted a three year permit to stay in [Country 1]. When asked how it was that he managed to stay for five years until 2016, he said that when the permit expired he was able to get a series of short stay three month extensions until he left for Australia.
In his pre-hearing submissions, the applicant outlined that when he was living in Nigeria he did not seek help from the Nigerian authorities or the police. He explained that Nigeria’s police department was corrupt, so he had no choice other than to run for his life because he was verbally threatened to be killed just like my parents. He claimed that he knew from their statement that they had actually killed his parents. When asked during the hearing who these people were, he was unable to articulate who they were.
When questioned about his interactions with the ‘rogues’ between leaving his father’s house and moving to [Country 1] a number of years later, he responded by saying that he did not have any contact with the rogues during that time. He was then asked whether during the five years he lived in [Country 1] he had experienced any problems with these alleged ‘rogues’ during that time. He responded by saying that he had some strange phone calls but cannot say who called him. He accepted that in the time between when he moved out of his father’s house in around 2008 to when he left [Country 1] in 2018, he had never received any threats from any person, in particular any person in Nigeria, and nor has he ever been told not to return to Nigeria.
The applicant outlined in his pre-hearing submissions that when he lived in [Country 1], he was in involved in buying and selling [goods] to earn a living. This helped him pay for an apartment which he shared with eight other people before he got his own accommodation.
He then said he by 2016, he had saved enough money and was fortunate enough to meet someone who gave him the contact of an agent in Australia. This agent helped process his student visa.
The Tribunal notes and observes that once again, the applicant’s explanations as to dates, and the amount of time he spent in various locations conflicts with other parts of his evidence. His pre-hearings submissions explained that he was in [Country 1] for six years, yet his oral testimony was that he was there for five years from 2011 to 2016. Given the constant discrepancies between his evidence, the Tribunal has difficulty in accepting the veracity of his claims. Apart from his travel records showing that he arrived in Australia on a [Country 1] flight, there has been no other evidence provided by him that he travelled to [Country 1] in 2011, or that he lived there for the time that he claimed.

The applicant was asked if he had made any application for protection in [Country 1], he said that he had not. However, he did disclose that he had made an application to [Country 2]. He explained that in 2010 he had met a woman from [Country 2] on the internet. She travelled twice to [Country 1] to spend time with him. When asked what type of application he made for entry into [Country 2], he said that it was a protection visa, then said a spousal visa. He said that his application was refused by [Country 2]. Again, the Tribunal identifies the variance in his evidence. The Tribunal notes that he claimed in his pre-hearing submissions that did not arrive in [Country 1] until [August] 2011, yet in his oral testimony he gave evidence about meeting the woman from [Country 2] in 2010 and she travelled twice to [Country 1].
The Tribunal does not accept that the discrepancies identified were innocent or isolated errors. The applicant was able specifically articulate the date of his mother’s the date he travelled to [Country 1], yet seemingly provides one set of dates in his written pre-hearing submissions and provides different dates in his oral testimony. The applicant heard evidence from him that he was well educated, even at a young age he was able to able to pass exams that allowed him to jump grades in school, thereby allowing him to graduate from grade 12 at the age of [age]. He also attained a [diploma]. The Tribunal had the opportunity during the hearing to assess his responses to the various questions poses to him throughout the hearing. When giving careful consideration to those responses, and weight those responses against his pre-hearing submissions, the Tribunal is not satisfied of the veracity of his evidence.
When explaining in his pre-hearing submissions what kind of harm he would experience if he returned to Nigeria, he said that he has decided never to return to Nigeria. It is a country that whenever he remembers what happened to his parents and how badly he was treated, this gives him trauma. He said that going back to that country would only traumatise him and he probably would be depressed. The Tribunal notes that he has provided no evidence in the form of any psychological report or psychological assessment to validate that claim.
He went on to explain that he did not know anyone in Nigeria or any place to go except for his abandoned parent’s house. He wished to stay far away from those harmful and toxic people. Notwithstanding that he did not explain who those people were, confusingly he claims that he would return to his parent’s ‘abandoned’ house. His testimony to the Tribunal and his claims were that the people who ‘charmed’ his mother and caused his father to die from depression took possession his father’s two properties. These people even allegedly threw him out of the house a week after his father died, yet he claims that he would return to their abandoned house. The Tribunal does not accept that claim, it lacks veracity, and it conflicts with his earlier evidence and claims.
In regard to his current circumstances, he told the Tribunal that he met his current wife in 2008. They met on the internet and were married [in] August 2019. They have [number children]. His wife is a [occupation], however his bridging visa does not allow him to work or study. He went on to explain that in September 2022, he applied for a partner visa. That application is yet to be processed by the Department.
Delay in lodging an application for protection
When asked at the hearing to explain the significant delay between when he left Nigeria to when he made his application for a protection visa in Australia, he said that he was only ever interested in doing his studies. When he got to Australia, he intended to finish his studies and then ask for an extension to his student visa.
It was when his student visa was cancelled that the applicant made his application for a protection visa. The sequence of events that transpired at that time involved the Department advising the applicant on 25 August 2017 of an intention to cancel his student visa (‘NOICC’), with the formal cancellation taking place on 12 October 2017. Five days later on 19 October 2017, the applicant applied to the Tribunal for a review of that decision. A month later on 21 November 2017, he lodged with the Department his application for a protection visa.
When giving careful consideration to his evidence that he was only ever interested in doing his studies when he got to Australia, and he intended ask for an extension to his student visa, this leads the Tribunal to a conclusion that his application for protection was an afterthought following the Department issuing him the NOICC in regard to his student visa, and his protection visa application was not made on a bona fide basis.
Subject to the provisions of section 424AA of the Act, the Tribunal canvassed with the applicant submissions he earlier made to the Tribunal when the cancellation of his student visa was finalised. He accepted that he said that he told the Tribunal that the reasons for not wanting to return to Nigeria is because he was scared to go back, and this fear was amplified by the fact he had not been back since in 2011. He did not have any opportunities to study in Nigeria, and there were no working opportunities in Nigeria. He had no family back in Nigeria, so he decided to remain in Australia to study and learn new skills as he could see this as being a way to give him better future opportunities here in Australia. He accepted that no reference was made to requiring protection.
The Tribunal identifies that there has been a significant delay of eleven months between the applicant’s arrival in Australia in December 2016 on a student visa to when he made his application for a protection visa in November 2017, in which the applicant made no effort to make an application until after his student visa was cancelled.
The Tribunal’s consideration regarding the delay between the applicant’s arrival in Australia and his application for a protection visa is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.
The Tribunal has given careful consideration to the applicant’s delay in applying for protection in Australia and finds that the significant delay in the applicant seeking a protection visa after he had arrived in Australia, along with the sequence of events involving the cancellation of the applicant’s student visa, can support an adverse credibility finding as well as a finding that he does not have a well-founded fear of harm. A significant delay is not behaviour indicative of someone who fears for their physical safety.[28]
[28] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
The Tribunal has considered the applicant’s delay in applying for protection in Australia and finds that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Nigeria. The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.
Post hearing submissions
Subsequent to the hearing of the applicant’s application, he provided additional documents and photographs, including a letter from [Organisation 1] Manager from [organisation]. The details of this letter related to the award of [a] Medal to the applicant in recognition of the contribution he made during the 2019 [deleted]. He provided photographs of the medal he was awarded.
Also provided was a patient health summary for his daughter. The summary outlines a history of her immunisations and suggested that the extent of the illnesses or medical conditions she experienced were [condition] in 2019 and [condition] in 2022.
When giving careful consideration to the material provided, the Tribunal acknowledges the good work undertaken by the applicant in respect to the event for which he was awarded the medal and accepts that he rendered significant service during the 2019 flood emergency. The Tribunal has also considered the contents of his daughter’s medical document. However, the Tribunal does not consider the material otherwise persuades the Tribunal to make a finding in favour of the applicant.
Refugee findings
The applicant claims he left Nigeria to escape the threats of rogues who had ‘charmed’ his mother with black magic and caused her death, and had caused his father to die from depression and stress. He also claims that the rogues took possession of his father’s properties and dispossessed the applicant of those properties. The applicant claimed that he was cared for by a Pastor for a number of years and then sponsored by the person to relocate to [Country 1].
When carefully considering the evidence in this matter, the Tribunal finds that the applicant did not suffer harm in Nigeria because of any dispute between his parents and the people he described as rogues, or for any other reason. The evidence shows that the rogues had no interest in harming the applicant, at worst they evicted him from his father’s property in Lagos. There is no evidence to support any claim that he is at risk of harm because of any personal campaign from those people, and the Tribunal does not accept that he is at risk of harm due to his father losing his properties.
For completeness, having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s application, the Tribunal finds that there is not a real risk that the applicant would suffer serious harm if he returned to Nigeria because of any of the claims he made. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.
Complementary protection considerations
The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Nigeria, there is a real risk that he will suffer significant harm.
Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[29] the Tribunal has considered the alternative criterion.[30] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Nigeria, there is a real risk that he will suffer significant harm as it is defined in the Act.[31]
[29]Migration Act 1958 (Cth), s 36(2)(a).
[30]Migration Act 1958 (Cth), s 36(2)(aa).
[31]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Nigeria. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[32]
[32]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returned to Nigeria now or in the reasonably foreseeable future he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
Conclusion: complementary protection criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, he will be exposed to a real risk of suffering significant harm.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior 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.
…

[2023] AATA 1975

10 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Standing

Statutory Construction