2007121 (Refugee)

2007121 (Refugee) [2022] AATA 4967 (21 November 2022)
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DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Dalila Machado Medeiros Allen (MARN: 2014135)
CASE NUMBER:  2007121
COUNTRY OF REFERENCE:                   Nigeria
MEMBER:Mark Bishop
DATE:21 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 November 2022 at 12:25pm
CATCHWORDS
REFUGEE – Protection visa – Nigeria – race – Igbo – actual and imputed political opinion – involvement with Indigenous People of Biafra (IPOB) – active member of Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) – applicant had minimal political profile – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Nigeria, applied for the visas on 8 March 2017. The delegate refused to grant the visas for the following reasons:
·“I am satisfied there is not a real chance the [first named] applicant will face serious harm in Nigeria for reasons of his Igbo race. I am not satisfied the applicant’s fear of persecution on the grounds of his Igbo race is well founded.”
·“I am satisfied there is not a real chance the applicant will face serious harm in Nigeria for reasons of his involvement with Indigenous People of Biafra (IPOB) in organising social activities for its members. I am not satisfied the applicant’s fear of persecution on the grounds of his imputed political opinion is well founded.”
The applicants appeared before the Tribunal on 8 November 2022 to give evidence and present arguments. The applicant’s wife, who is the third named applicant, advised the Tribunal she would not give evidence.
The applicant provided a copy of the decision record to the Tribunal. On 18 October 2022 the applicant wrote to the Tribunal and requested that “an additional support person - [name] - be added to the attendance on the hearing day on 8 November 2022. The relationship of the support person is the Applicant’s wife’s mentor.” A support person is not identified in the Act. The Tribunal agreed to the request.
The applicants were represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
In his application for a protection visa (Form 866)[1] dated 8 March 2017, the applicant declared as follows:
·He obtained his passport through the passport office.
·He previously visited Australia.
·He worked in various [Industry 1 workplaces] from October 2006 until his departure for Australia, rising to the position of [manager].
·He holds a [degree] and pursued post-graduate study in 2008 and 2014.
·He has not been the subject of any conviction, charge or investigation and has not committed any crime.
·His father, mother and 3 siblings currently hold Nigerian citizenship. (In evidence the applicant advised the Tribunal that his parents and sister reside in [Country 1].)
[1] [file numbers deleted]
The applicant’s visa history was summarised by the delegate as follows:
·A Tourist (Subclass 676) visa was granted on 20 April 2012 and cancelled on 16 July 2012 on the grounds that he provided false information to the Department. He arrived in Australia as the holder of a Visitor (Subclass 600) visa on [date] August 2016 and departed Australia on [date] September 2016. He re-entered Australia on[date] February 2017. On 8 March 2017 he applied for a protection visa.
On 23 March 2020 the applicant provided a written submission plus supporting documentation to the Department, summarised by the Tribunal as follows:
·The applicant worked actively with the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) from early 2016 as [Position 1] until he came to Australia on [date] February 2017 as the holder of a visitor visa. On 8 March 2017 he applied for a protection visa.
·His role as [Position 1] was to lead groups in markets or churches to raise awareness of unsettled and unpleasant situations in the eastern part of Nigeria, particularly Ndigbo.
·The applicant was an active member of MASSOB from 2011 and from this time “he and his family have been suffering from the hands of their government hardship, feeling insecure and times that felt they would lose their life.”
·The applicant provided some minimal detail as to a number of incidents as follows:
o   He led a rally in [City 1] on [date] May 2016; [number] people were killed whilst the applicant and [others] were taken to an army cantonment.
o   On [date] September 2016 he participated in a “sit at home exercise”, a form of protest designed to damage the economy. On 1 October, according to a neighbour, 3 men attended his home seeking information. He relocated his family. On 4 October, 3 men again came to his home and advised they had an order to bring the applicant in “dead or alive”. The 3 men went to his office. He was offsite. He was in fear of his life. His neighbour informed him his house was being broken into by government agents.
o   On 12 October the applicant was arrested and tortured for 5 days. He refused to give the desired information and was released following intervention by [the Civil Liberty] organisation. The applicant and his neighbour were threatened; threats were made in relation to the applicant’s wife and family, and his neighbour was arrested, beaten up and detained for 2 days.
o   The applicant decided to leave Nigeria. He took leave from work. He and his family departed from the airport without incident due to “prior organisation with MASSOB and airport staff.”
·The applicant has continued to work with IPOB in Australia.
·The applicant has a well-founded fear of persecution in Nigeria as he has experienced threats, attacks, torture, imprisonment, arrests, ransacking and beating.
·The applicant is known to the authorities and this has been reinforced by having his name mentioned in an article in [Newspaper 1] dated 4 October 2016, titled [title].[2]
·Soon after the applicant left Nigeria, his brother was sure the family was followed by security officials, and when he was taking their parents to the hospital they were stopped by a car; 2 people got out and stared at them and then drove off. Two months ago, two people approached his brother and were harassing him, asking for the applicant’s whereabouts as they were still looking for him. He was sure these were all security officials.
·The applicant provided copies of extracts from Country Information Reports, Amnesty International Report 2021/2022, a Nigerian news website, US Department of State reports and a reference to the Canadian Immigration and Refugee Board.
·Internal relocation is not an option for an active member of MASSOB who is against the government. The applicant refers to an 18 January 2007 UK Home Office report on operational guidance for Nigeria. He cannot return to any part of Nigeria as the security forces will find him and harm and kill him and his family.
[2] Tribunal file DOC ID number 10418933 provided during the hearing at the request of the Tribunal
On 1 November 2022 the applicant forwarded submissions to the Tribunal as follows:
a.Written submission summarised by the Tribunal as follows:
1)The applicant is a university graduate and has worked in [Industry 1] for many years.
2)The applicant’s spouse gave birth to a child in [Australia]. Their second child was born in Nigeria in [year].
3)The applicant and his family arrived in Australia in February 2017 and the applicant lodged an application for a protection visa in March 2017. Since that time, the applicant and his family have resided lawfully in Australia as the holders of bridging visas.
4)The applicant and his spouse had their third child in [Australia].
5)The applicant provided a set of documents as summarised at paragraph 29 of his written submission.
6)The applicant addressed relevant law.
7)The applicant referred to various aspects of the DFAT Country Information Report (CIR) for Nigeria dated December 2020, including the origins of MASSOB and IPOB.
8)As part of his submissions directed to his refugee claims, the applicant addressed the following topics: being outside his country of origin, having a well-founded fear of persecution, the subjective element, adverse findings of the delegate, the objective element and relevant case law, the applicant’s fear of persecution due to participation in MASSOB and IPOB, the real chance of persecution, past experience, a UN report dated September 2019, aspects of s 5J of the Act (actual and imputed political opinion, membership of a particular social group, namely political membership of MASSOB and IPOB and race/ethnicity), state protection, internal relocation, complementary protection, and relocation outside of Nigeria.
b.DFAT CIR for Nigeria dated 3 December 2020.
c.Amnesty International’s Annual Report 2021/22.
d.World Report 2022 Nigeria, Human Rights Watch Report, UN Human Rights Report, World Factbook.
On 4 November 2022 the applicant provided further additional written submissions summarised by the Tribunal and identified by the applicant as follows:
a.Evidence of IPOB Membership (Annexures 20, 21 and 22):
1)Thanks for hosting a function in December 2020 identified as “IPOB [event]".
2)Minutes of a meeting held on 14 March 2021 concerning future events including a procession and football games.
3)Minutes of a meeting held on 28 March 2021 concerning future events, including the possibility of fundraising events.
4)Pictures of attendees at Zoom meetings in June 2021, including IPOB leadership and the applicant.
5)Minutes of a meeting held on 17 November 2021 concerning future events.
6)Series of pictures of people including the applicant attending an event in Sydney in May 2021 concerning “remembrance of Biafra fallen heroes”.
7)Bank payments and receipts issued to the applicant for (generally small amounts) of monies paid to IPOB or Biafra communities or associations in the period September 2019 until July 2022.
The Tribunal is satisfied the applicant is a member and activist within IPOB in Australia and attends IPOB focused community or association events.
In evidence the applicant advised the Tribunal as follows:
·He lives in Melbourne with his wife and 3 children and is employed. The joint family income of his (employed) wife and himself is approximately $170,000 per annum.
·He holds a [degree] from a university in Nigeria and spent his entire working career in Nigeria [in Industry 1], rising through the ranks to the senior position of [manager].
·He graduated from university in 2004. His only student position whilst at university was as the [department] student representative to the ruling student representative council.
·He was not involved in MASSOB in the years 2004 to 2011.
·He joined MASSOB in 2011. He described himself as “just a member” at this time; he paid dues and attended meetings. In 2014 he was appointed as [Position 1]. He advised he was not elected to any governing councils of MASSOB. His role of [Position 1] was voluntary, he did not receive any fee or payment, and by virtue of this position attended executive meetings as a matter of right.
·His motivation for joining MASSOB was that he believed the Federal government in Nigeria had, over a lengthy period, discriminated against his people, the Igbo people, who were concentrated in the east of Nigeria, and denied them opportunity. He advised he believed the Nigerian government actively discriminated against the Igbo people, who made up 5% of the Nigerian population.[3]
·He was active in MASSOB in the period from November 2014 until late 2016; he departed Nigeria for Australia in January 2017.
·He advised the Tribunal that he could not provide any proof of membership of MASSOB or his role in it. This included an inability to provide any documentation or links relating to membership of, or his role in, MASSOB, such as membership cards, receipts for payments of dues, letters, emails, notes of meetings, social media posts or press clippings.
·In Australia he became active in IPOB around June 2019 as an ordinary member and [in Position 2], and a representative [at] a national level.
[3] The DFAT Country Information Report for Nigeria of December 2020, paragraph 3.7, sets out the Igbo population in Nigeria is approximately 15% of the total population, or 30 million people.
The applicant challenged the findings of the delegate in relation to:
·The lack of MASSOB membership detail.[4] He confirmed he did not provide any evidence of membership to the Department. Post hearing the applicant provided to the Tribunal copies of receipts relating to membership of MASSOB in the years from 2011 to 2017 and a letter of confirmation of membership in the name of a [Mr A].[5]
·In relation to passports allegedly issued by Biafra.[6] He advised that his responses, as summarised by the delegate, were caused by his misunderstanding of the question and a mix-up with meeting dates, and he affirmed that he had never sighted any passports issued by Biafra and nobody had ever advised such passports existed. In any event, the passports were prototypes that were never issued.
·A newspaper article ([Newspaper 1], Tuesday 4 October 2016). He meant to say that he sponsored an article.[7] The Tribunal notes the applicant provided a copy of the newspaper article during the hearing that refers to the applicant as a “rights activist” and summarised his activities as lobbying the Federal government of Nigeria for the release of some detainees.
·His arrest, detention, torture and release.[8]
·A [social media] post dated 13 October 2016 relating to his wife’s business (uploaded to [social media] on 13 October 2016 when he was in security detention). The applicant advised that his wife uploaded the particular post in his name.[9]
·A foundation established in his wife’s name and a finding of the delegate that whilst he was a founder and listed as deputy chairman, he had no day-to-day involvement in the foundation.[10]
[4] Delegate’s decision page 6
[5] Doc ID number 10435998
[6] Delegate’s decision pages 6 and 7
[7] Delegate’s decision pages 17 and 18
[8] Delegate’s decision pages 11 and 12. See below at paragraph 23
[9] Delegate’s decision page 12
[10] Delegate’s decision page 13
The applicant advised the Tribunal in respect of specific events as set out below.
Rally in [City 1] [May] 2016
The applicant advised his role was to organise transport for some attendees, that he spoke at the rally and that he was one of a number of “go to” people at the rally if attendees needed advice or assistance. The Tribunal notes the delegate’s findings that “…no country information was located about the applicant’s leading role or his participation at the demonstration on [date] May 2016”.[11] The applicant advised the Tribunal that he was unable to provide any documentary evidence of his role in the rally and he was unable to provide the Tribunal with any links to this set of events. In particular, the applicant was unable to provide any social media posts of himself, family, colleagues or attendees that might address his role in the events of [May] 2016. The Tribunal has considered the several accounts given by the applicant as to his role in the events of [May] 2016. The Tribunal is of the view the applicant’s role in the events of [May] 2016 was minimal. It was limited to organising transport and possibly a speaking role. He did not have a senior role. He was only one of several “go to people”. The Tribunal is satisfied the applicant did not have a leadership role. The Tribunal is satisfied the applicant’s role was so minor it would not have brought his name or persona to the attention of the Nigerian authorities.
Claims relating to adverse interactions with security agents on 1 October 2016 and 4 October 2016 at his home and office
[11] Delegate’s decision pages 7 and 8

The applicant claimed security agents visited his home on 1 October 2016, and his home and office on 4 October 2016. He did not participate in or witness any of the events that occurred on these days. He relied upon advice from neighbours. The Tribunal notes the various conflicting answers provided by the applicant over time.[12] The Tribunal is not persuaded the events of 1 October 2016 and 4 October 2016 actually occurred. The Tribunal is not persuaded that security officers visited the applicant’s home or work based on the various explanations given by the applicant. The Tribunal is of the view that the various purported explanations are speculative. The Tribunal is concerned the applicant was unable to provide any evidence, such as an email, letter, note or social media post, that might confirm his version of events. The Tribunal is concerned the applicant was unable to provide a letter of confirmation from his [workplace] that security agents called upon the [workplace] seeking to interview him. The Tribunal is concerned the applicant was unable to provide a letter of confirmation from his neighbours as to what they saw and understood to be occurring on the relevant days.
Claims relating to arrest, detention, torture and release in the period 12 October 2016 to 16 October 2016
[12] Delegate’s decision pages 9 and 10
The applicant advised he was on the way to a meeting on 12 October 2016. He was arrested, taken to the state security office, detained for 5 days, tortured in the most horrific manner during this period, and eventually released after approaches from a barrister who acted on behalf of various MASSOB related detainees during this period. He advised he was tortured on 4 or 5 occasions each day. He provided detail of that torture. He advised that state security people wanted him to disclose detail relating to MASSOB.
Upon release he went to hospital. He could not remember the name of the hospital. He did not stay overnight. After a short period of time, he left the hospital and thereafter self-administered and self-medicated his own treatment with saline water. He was unable to provide any detail or documents relating to his admission, diagnosis or release. He was unable to provide any documents from the hospital that might confirm the likely source of any injuries or body marks, if any.
Th applicant advised the Tribunal he remained employed by his [workplace] until his departure from Nigeria for Australia in early January 2017. He advised he basically worked from home and supervised his many subordinates and oversaw the sale of [products] from his home. The applicant at this time was a senior and long serving [employee] who occupied a responsible and senior position. He explained that [other employees] were sympathetic to his political engagement with MASSOB as more than one was of Igbo ethnicity. He explained that post the events arising from investigations by security officers he knew he would have to leave his home country. He thus had nearly 3 months of preparation time in which to sell assets to raise the finance to pay for airfares. In this time, he would also have had the opportunity, if so minded, to put together a file of comments from family, colleagues, supporters, friends, neighbours, fellow activists or members of MASSOB and similar organisations that might attest to or confirm some or all of the events outlined in his application for a protection visa. Soon after his arrival in Australia, he applied for a protection visa. The applicant appears to have put a lot of work and preparation into his eventual safe departure from Nigeria. The Tribunal is concerned the applicant was unable to provide a copy of any [workplace] policy concerning work from home or letter of confirmation from junior or senior employees that might confirm he basically worked from home until his departure for Australia in January 2017. The Tribunal is not persuaded the applicant was working from home during this period due to his fears of further security agency attention.
In summary, the Tribunal is of the view the applicant had a minimal political profile in Nigeria at any time in the period from 2011 until late 2016. The Tribunal is not persuaded the applicant participated in any events that might bring his name to the attention of authorities in Nigeria. The Tribunal does not accept as credible or plausible the applicant’s version of events relating to his detention, arrest, torture for 5 days and release by agents of the Nigerian state. The Tribunal accepts the applicant joined and is active in IPOB in Australia.
At the conclusion of the hearing, the migration agent requested extra time to provide additional submissions and documentation. The Tribunal gave the migration agent until 12 noon Monday 14 November 2022 to provide the material.
On 14 November 2022, the applicant provided supplementary submissions[13], together with the following annexures identified by the applicant, for the Tribunal’s consideration:
·Annexure 23: News Article Sit-at-home: IPOB Australia to hold procession for late Biafra heroes by Everyday News NGR dated 24 May 2021
·Annexure 24: News Article IPOB hosts 2-day Biafra remembrance in Australia by News Around dated 24 May 2021
·Annexure 25: News Article [deleted]
·Annexure 26: Letter of Support from [a named person] dated 12 November 2022
·Annexure 27: Receipts of Dues and Donations to MASSOB
·Annexure 28: Letter of Support from [Mr A] dated 11 November 2022
·Annexure 29: Letter of Support from [a named person] dated 10 November 2022
[13] Tribunal file DOC id number 10435998
Country information
In accordance with s 5J(1)(a) of the Act, the Tribunal is satisfied the applicant fears persecution for reasons of his race. The Tribunal is satisfied that the applicant’s race is the essential and significant reason for the feared persecution.
Country information reports that Nigeria is a highly diverse nation made up of hundreds of different ethnicities[14] and that official discrimination on the grounds of race, nationality or ethnicity is rare.
[14] DFAT Country Information Report Nigeria December 2020, paragraph 3.2
Country information states that the Igbo ethnic group is dominant in the south-eastern states of Nigeria.13 Country information states DFAT is not aware of any other significant cases in which Igbo have been specifically targeted for violence or exclusion due to their ethnicity.14
13 DFAT Country Information Report Nigeria December 2020, paragraph 3.2
14 DFAT Country Information Report Nigeria December 2020, paragraph 3.8
The Igbo people constitute 15[15] per cent of Nigeria’s total population and are one of the most politically influential groups in Nigeria. There are no legal provisions directed towards the Igbo population in Nigeria. The Igbo are able to participate in political, social and cultural life in Nigeria without interference. The Igbo, like all Nigerians, are able to move freely within Nigeria.[16] Further, the Tribunal notes that in 2019, Nigeria was elected as a member of the Human Rights Council.[17] The Global Alliance for National Human Rights Institutions last accredited Nigeria’s National Human Rights Commission, in November 2016, as being fully compliant with the UN Paris Principles for protecting and promoting human rights.[18]
[15] In some sources the Tribunal notes this figure is 18%. Whatever the figure the Igbo population sin Nigeria is of a significant number.
[16] DFAT Country Information Report Nigeria December 2020, paragraph 3.8
[17] Delegate’s decision page 15 at citation number 58, 'Election of the Human Rights Council (17 October 2019)', United Nations General Assembly, 16 October 2019, 20191031094359
[18] DFAT Country Information Report Nigeria December 2020, paragraph 2.53
No country information was located to suggest the persecution of Igbo people because of their race. In this regard, the Tribunal notes the finding of the delegate that the applicant provided evidence of his business that he established and managed from 2013 and after his departure for Australia. During his protection visa interview, he also indicated that his siblings were businesspeople and their children attended schools and the applicant’s wife presented evidence that she managed a successful business in Nigeria.[19]
[19] Delegate’s decision page 12
The Tribunal notes further that applicant attended university and since graduation has pursued a successful career rising to senior positions within [Industry 1]. There is nothing to suggest the applicant has suffered any discrimination in either his education or his activist representation role whilst at university or his career subsequent to university. There was nothing in the applicant’s account to suggest that he has been of adverse interest to the authorities because of his Igbo race.[20]
[20] Delegate’s decision page 12
The Tribunal notes the DFAT CIR for Nigeria states: “Where the Department of Foreign Affairs and Trade has prepared [a] country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision.”[21]
[21] DFAT Country Information Report Nigeria dated December 2020, paragraph 1.3
The Tribunal notes further that the DFAT CIR for Nigeria states: “This report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Nigeria. It takes into account relevant information from government and non-government reports”.[22]
[22] DFAT Country Information Report Nigeria dated December 2020, paragraph 1.4
The Tribunal gives considerable weight to the DFAT CIR as it is relatively contemporaneous, based upon on the ground observation and makes extensive reference to other government agency and non-government reports.
The Tribunal accepts that Igbo are not specifically targeted for discrimination on the basis of their ethnicity throughout Nigeria.
Based on the above country information, the Tribunal is satisfied there is not a real chance the applicant will face serious harm in Nigeria for reasons of his Igbo race. The Tribunal is not satisfied the applicant’s fear of persecution on the grounds of his Igbo race is well founded.
The Tribunal is of the view there is only a remote or far-fetched chance that the applicant will be harmed for any of the reasons he has claimed. The Tribunal does not accept that he would be significantly harmed on the basis of the things he has claimed. It follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion, the Tribunal has considered the alternative complementary protection criterion. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Secondary applicants [Mr B], [Miss C] and [Miss D]
The secondary applicants are members of the family unit of the applicant.
The Tribunal finds that secondary applicants [Mr B], [Miss C] and [Miss D] are members of the applicant’s family unit, as defined in reg 1.12 of the Regulations and s 5(1) of the Act and, therefore, are also members of the same family unit, as defined in s 5(1) of the Act, as [the applicant].
As the Tribunal has refused to grant a protection visa to [the applicant], the Tribunal also refuses to grant a protection visa to secondary applicants [Mr B], [Miss C], [Miss D] who are members of the family unit included in the application, on the basis that they do not satisfy s 36(2)(b) or (c) of the Act.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mark Bishop
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.
…

[2022] AATA 4967

21 November 2022

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