2007989 (refugee)
[2024] ARTA 714
•5 December 2024
2007989 (REFUGEE) [2024] ARTA 714 (5 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2007989
Tribunal:General Member P Tyson
Date:5 December 2024
Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)the first named applicant meets s 36(2)(aa) of the Migration Act; and
(ii)the second named applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 05 December 2024 at 10:43am
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group and religion – domestic violence and pressure to convert to Islam – physical and psychological abuse and threats – police inaction – divorce against husband’s wishes – fear of harm from ex-husband and associates – ex-husband’s continuing harassment of applicant’s family – claim that ex-husband joined militant group not accepted – country information – laws not effectively enforced – relocation difficult for single woman and young child – some discrimination and hardship likely, but not to level of persecution – complementary protection – real risk of significant harm – relocation not reasonable – limited treaty right to enter and reside in neighbouring countries – member of family unit child – ex-husband did not contest divorce and allowed child to travel – cultural emphasis on first son – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (c)(i), (2A), (2B), (3), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v MZYYL (2012) 207 FCR 21
MIMAC v SZRHU (2013) 215 FCR 35
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be nationals of Nigeria. They applied for protection visas on 8 September 2016. The delegate refused to grant the visas on 4 May 2020.
On 7 May 2020 the applicants lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicants are a mother and her [Age] year old son. According to information given in the visa application and to the Tribunal, the applicant mother is from Lagos state. She is of Yoruba ethnicity and the son is Yoruba and Igbo. They are of Christian Pentecostal religion. In Nigeria, the applicant mother completed a degree in [subject] and worked as [an occupation 1]. The applicants originally arrived in Australia in July 2014 on student visas, and the applicant mother completed a [Qualification in Subject specialisation] in 2016 while also working as [an occupation 2].
Proceedings before the Department
The applicant made claims in her protection visa application that can be summarised as follows:
·She left Nigeria to study in Australia, but also to escape being harmed, tortured, persecuted and possibly killed from incessant domestic violence and forceful conversion to Islam by her ex-husband. She fears such harm at the hands of her ex-husband and his associates if she returns.
·She previously experienced beating, torture and threats to her life from her ex-husband and his cohorts. Her ex was physically abusive to her in their marriage, and also because he pressured her to convert to Islam and dress like a Muslim.
·The applicant reported several times about the domestic violence, torture and threats but the Nigerian police never took any serious action to protect her.
·The applicant moved to her parents’ home, then subsequently moved to Ogun state and Epe, but to no avail as her former husband followed her around and wanted to harm her for refusing to obey his orders. Her ex husband continued to stalk and trail her to harm her and take her son away from her because she had filed a divorce suit and did not convert to Islam.
·The applicant fears she will be tortured and killed by her ex and his cohorts because she divorced him against his wishes due to the domestic violence, and because she was adamant about not converting to Islam or dressing like a Muslim, as other women in the area did.
·The police and government in Nigeria do not take domestic violence or forceful conversion to Islam seriously. They do not prosecute offenders or protect victims.
The applicant provided documents in support of the application, including:
·Nigerian birth certificates and passports of both applicants.
·Decree Nisi dissolution of marriage, order of the High Court of Lagos State in the [City] Judicial Division. It states that it was determined [in] May 2014 with the petitioner (the applicant) present in court. The respondent did not appear. It refers to the marriage being broken down irretrievably due to lack of commitment and incessant domestic violence. The order is to be made absolute after three months commencing [in] May 2014, provided nothing contrary is brought to the court’s attention. The document is then dated and stamped [August] 2014. There is a further page recording that the decree nisi became absolute [in] August 2014. It states ‘not applicable’ in sections referring to intervention and appeal.
Interview with delegate
The applicant attended an interview with the delegate on 9 December 2019. She gave evidence that was consistent with her written claims. In summary, she claimed:
·Her former husband had been violent and abusive from the very beginning of their marriage in [Year]. The abuse continued while she was pregnant.
·The applicant’s husband did not have a stable job and her parents supported them. Her parents were aware of the abuse but initially encouraged her to stay in the marriage as divorce was taboo in their culture. Her aunt, who had studied [subject] in [Country 1], supported her and helped her see that it was not her fault.
·The applicant did not require medical treatment for her injuries, but saw a GP for anxiety.
·The applicant noticed a difference in her former husband’s behaviour in around 2013. She believes that he converted to Islam and joined Boko Haram because they paid a lot of money to people to fight in the north. He wanted the applicant to convert. He would come and go from Lagos.
·The applicant reported the violence to police but although they said they would look into it, they did not take any action.
·Her husband had joined Boko Haram, he had lots of Muslim friends and the applicant and her son had to relocate. While her husband was away, she went to Ogun in late 2013. She had studied there and knew people she could stay with. She then went to Epe. Her husband found her and she went back home with him. She feared making him angry in case he took her son away with him to the north. The violence and coercion continued when she returned.
·The applicant applied for divorce. Her husband did not agree and wanted them to stay together and for her to convert to Islam. The applicant applied for a student visa to study in Australia. Her former husband was aware of this. She needed his consent for her son to accompany her. She said she would go to study and then come back. He said he would consent if she withdrew the divorce. He gave the consent in around early 2014 but she did not withdraw.
·The applicant’s husband was away when the divorce came through and she believes he may not have been aware of it. The applicant went to stay with her parents at this time and stayed there until she came to Australia. She did not see him again before she left.
·The applicant heard from her mother that her husband came looking for her after she left. When he heard she was gone, he was livid and made threats. He continued to visit them for quite a while, until her mother used connections to have law enforcement warn him to keep away. The applicant was not told much about this by her family.
·The applicant has not been in contact with her husband. However, prior to the interview he came to her parents house and asked her father why the applicant and his son had not yet returned. Her mother told her that she could tell from his appearance and people he was with that he was still with Boko Haram. The applicant does not know if he has visited other times as her parents may not tell her. The applicant knows through friends that her husband has not remarried.
·The applicant is afraid for herself and her son. Her husband is angry she went away and previously threatened to kill her if she ever left him. She worries her husband will want their son to join Boko Haram. If her husband takes their son the applicant will come looking for him and does not know what her husband will then do to her.
The applicant was represented before the Department and at the end of the interview the applicant’s former representative made submissions regarding the prevalence of domestic violence in Nigeria and lack of police intervention, the ‘islamisation’ of the country including former Boko Haram militants being enlisted into the army, regarding the chance of further harm to the applicants in the future notwithstanding her divorce and the passage of time, the applicant being a single mother with a young boy, and the inability of the applicants to relocate.
Decision of the delegate
The delegate accepted that the applicant’s former husband had been abusive. Given the timing of the applicant’s divorce hearing some time prior to her departure, the delegate rejected the applicant’s evidence that her former husband had given permission for her to take their son to Australia only on the condition that she withdraw the divorce application. She concluded that the ex-husband had agreed to their son travelling to Australia. The delegate found the applicant’s claims about her former husband joining Boko Haram not credible, including finding it was implausible that her ex-husband would have allowed the applicant to travel to Australia to study, and take their son, if he was a member of Boko Haram. The delegate found the applicant had exaggerated the level of interest her former husband had shown in the applicant and concluded there was no real chance or risk of harm to her or her son.
Tribunal proceedings
At the time of making the review application, the applicants provided the Tribunal with copies of new passports which had been issued in Australia, although these have since expired.
The applicant was initially represented before the Tribunal and on 6 August 2024 an invitation to attend an in person hearing on 8 October 2024 was sent to her via her representative and authorised recipient. However, on 30 September 2024 the applicant told a Tribunal officer that she had only become aware of the scheduled hearing through an SMS reminder notification, and had not been advised of it by her representative. She completed forms to withdraw her representative and authorised recipient, and also requested that the hearing take place by video instead of in person due to the delay in becoming aware of it, and ill health. The Tribunal agreed to this request.
The hearing proceeded on 8 October 2024 by Microsoft Teams. The applicant mother appeared on behalf of herself and her son. The applicant mother gave evidence in English, in which she is evidently fluent. Her evidence at the hearing is discussed in further detail below.
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.
REASONS AND FINDINGS
The issues in this case are whether the applicant’s claims about her experiences are credible and whether she has a well-founded fear of being persecuted in the reasonably foreseeable future or, if not, a real risk of suffering significant harm. The relevant law and mandatory considerations are set out in the below attachments to this decision. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Factual findings
The applicants have provided their Nigerian passports and birth certificates. On the basis of these and in the absence of any evidence to the contrary, I am satisfied that the applicants are nationals of Nigeria and that Nigeria is the receiving country for the purpose of this assessment.
The applicant mother, who I will refer to below as ‘the applicant’, is from a highly educated and, it would seem, affluent family in Nigeria. Both her parents obtained [degrees] overseas, her mother in [Country 1] and her father in [Country 2]. Her maternal grandfather had been [an occupation 3 based in Country 1] and her mother had partly grown up there. Some of her maternal aunts remained in [Country 1] and acquired citizenship, although her mother did not. Prior to retirement, her father had been [an occupation 4] and her mother held a [job task] role in the [Employer 1]. Her father did not have an active role in the family and her mother was the main breadwinner. The applicant has [siblings], including [one] who is [an occupation], [one] who works for [a company] and [one] who works for [Employer 2.
During her studies in Australia, the applicant’s mother had paid her university fees and the applicant had worked in a [workplace]to pay her expenses. Her son was under [Age] years old. The applicant was struggling and not aware of visa options. She told a friend the real reason she had come to Australia, to escape her former husband, and the friend introduced her to a lawyer who helped her lodge a protection visa application. The applicant is now working as [an occupation 5].
The applicant gave consistent evidence about her relationship to that given previously. She and her husband were from different cultures and very different educational and socio-economic backgrounds. He viewed her as a trophy. Things became bad very early in her marriage. It is apparent from her evidence that the relationship was tumultuous and violent. She described that the abuse during the relationship was also psychological, that he would manipulate her and distort things and she would feel like she was going crazy or was delusional. He took away her autonomy.
On the applicant’s evidence, her mother really liked her former husband and for some time did not believe the applicant about how he was treating her. The applicant’s mental health was suffering and he would use this against her. Her aunt, however, believed and supported her and her mother did too, eventually.
The applicant would frequently return to stay with her mother, and her husband would at times return to his family’s traditional home. She had access to his social media and was aware he was cheating on her. In [Year], not long after her son was born, she moved back to Ogun state, where she had lived while studying, and stayed with people she knew. However, her husband tracked her down through their mutual social networks, given they had gone to the same school.
The applicant again moved back in with her mother a few months before coming to Australia. During this time, her ex would come to see her at her mother’s place. He wanted them to get back together. The applicant said that he was not physically violent to her at her mother’s house, but she would have to do things to maintain the peace and go back to his family’s place, and he would physically harm her there.
The applicant formally applied for divorce, she thinks in around 2012, but it took a while. The applicant was in the lowest point of her life and she was living in paranoia. She did not have much involvement in the divorce proceedings, her mother had contacts who helped with the case. She does not have much memory of how things unfolded. She was focused on looking after her son and also applying for the visa and studies.
I asked the applicant about information I had read that divorce proceedings cannot be brought in Nigeria until two years after marriage unless permitted by the court[1], whereas she was saying she applied earlier than that. She again referred to not having much memory or active involvement, but suggested that her mother may have utilised contacts to help the process. She confirmed that it was a legal divorce, but said that perhaps through her mother’s contacts some of the steps had been jumped. I accept that it is possible that someone else may have represented her at court, and also, considering her mother’s position, that she may have been able to use her influence to avoid usual restrictions. It is also possible that the applicant is mistaken and she actually applied for divorce 2013, which would be consistent with what she told the delegate and other timeframes in her evidence to the Tribunal.
[1] Lexology, ‘How to get a divorce in Nigeria’, 20 October 2020, >
The applicant said her husband had to give consent for their son to obtain a passport and a separate consent for him to travel. By that time, the relationship had broken down and she had filed for divorce. The applicant had told him that she would return to Nigeria but wanted to study abroad for better prospects. Her husband agreed to consent to the passport if she revoked the divorce application. She assured him she would return and that it was only a one year [course].
On the information before me the applicant’s son’s passport, to which her husband consented, was issued in [2013]. The applicant’s student visa was granted in April 2014. The decree nisi was granted in May 2014 and the divorce became final in August 2014, after she had left Nigeria. According to the divorce documents the applicant submitted, the divorce would be absolute after three months, provided nothing to the contrary was brought to the court’s attention. I asked the applicant why she had waited until July to leave, given that her visa was granted three months earlier. She replied that she honestly could not remember. I put to the applicant that given there was almost a year between when her husband consented to the passport and when she actually left, he had the opportunity to try to stop her leaving with their son, or object to the divorce, if he had wanted to do so. The applicant gave evidence that her husband did not take the divorce seriously. To him it was just paperwork, his cultural mindset was that a woman would only no longer have a husband when the husband passed away.
The applicant also said that before she had left Nigeria, her former husband had no real involvement with their son. When she moved away, he was happy for her mother to support them and did not really care about their son, his priority was having her, like a trophy for his cabinet. She believes that this was why he let her stay with her mother because at least she was still known as his wife. Further, at that time her husband was seeing other women and did not have much care for or involvement with their son who was still nursing at the time. She thinks that her husband saw her as weak and thought she would return to Nigeria. He had not believed she would actually divorce him. He had never thought that she would actually go away and not come back.
The applicant said that after her departure her former husband would stir up trouble on and off. There have been a number of times since she has been in Australia that he has been to her parents’ home. She claimed that most recently, several weeks prior to the hearing, he had gone there with a group of people. He had been aggressive and demanded that the applicant return. Her family home has high security and he was not able to enter, but had an altercation with her mother on the phone. Her [brother] was home and had de-escalated the situation. The applicant confirmed that a similar incident had occurred around the time of the delegate’s interview. She gave evidence that there have also been other such incidents while she has been in Australia.
The applicant’s former husband does not have her contact details. However, the applicant has contacted him from a private number on a number of occasions after he has approached her family, because she is afraid he will harm them. She said things never ended well when she spoke to him, and that even speaking to him triggered memories. She would have to rebuild herself mentally afterwards so she could function. After the most recent incident in which he approached her family in Nigeria, she telephoned him and agreed for his request to speak to their son in order to appease him. This was the first real conversation her son has had with his father, and he ended up crying.
The applicant’s evidence about contact with her former husband since being in Australia was vague and at times difficult to follow, but I had the impression that this was because, as she said, she found it difficult and triggering to speak or think about him. Some of the applicant’s evidence about the timing of events in the marriage and the divorce was confusing and at times contradictory both between her interview and hearing, and within the hearing itself. However, considering that she was describing a repeated pattern of events that occurred over ten years ago, which I accept would have been highly traumatic and impacted her mental health, I draw no adverse inference from this.
Overall, I found the applicant’s evidence about her experiences credible. Her claims about experiencing intimate partner violence and about the failure of the police to take any action in response to her reports are entirely plausible within the context of the country information set out further below. I accept that she was in an abusive marriage. While I share the delegate’s concern that the applicant’s husband giving permission for the child to travel to Australia and failure to challenge the divorce could indicate that he had accepted the end of the relationship and was no longer exerting control over the applicant, I accept her evidence that her husband had little involvement with their son, viewed her as weak and believed she would return after her studies. I further accept her evidence about her husband harassing her family since she has been in Australia.
There is one aspect of the applicant’s claims that I do not accept. She had claimed in her application and to the delegate that her former husband had converted to Islam and joined Boko Haram, and that he was pressuring her to also convert to Islam. At the hearing, she made no mention of Boko Haram, her husband having converted or there being a religious element to her claims until I directly asked about those claims towards the end of the hearing. At that point, she said he had joined the group for money, but then seemed to distance herself from the earlier claims, saying that she did not know what he was doing now and did not want to label him based on the past. She said she had only suspected he was part of Boko Haram, because his attitude had changed and she believed he would have joined them for money. He had claimed to be Christian but not acted that way and had hated and felt threatened by her going to church. Even considering the passage of time and the impact of trauma on the applicant’s memory, I do not accept she would have failed to raise the claim about her husband having converted to Islam and joined Boko Haram earlier in the hearing if those things were true. I find that this element of the claim was likely a misconceived embellishment.
Refugee criterion
Real chance of harm in Lagos
The applicant believes that her former husband has a personal vendetta and wants revenge. Her leaving him and taking his son brought shame on him and he is angered that she dared to do this to him. The applicant said that her former husband had told her to her face that if she ever left him he would kill her, and she believed he meant this. He made this threat numerous times.
The US Department of State reports that there is ‘extensive’ gender-based violence in Nigeria, including domestic or intimate partner violence and sexual violence.[2] A European Agency for Asylum report describes gender-based violence in Nigeria as ‘common’ and ‘rife’. Domestic violence is widespread and considered socially acceptable Nearly one in three women aged 15-49 have experienced physical violence in Nigeria and according to the Minister of Women’s Affairs, 24,720 cases of sexual and gender-based violence, including 975 deaths, were reported in the country between January and October 2023. Nigeria’s National Human Rights Commission is reported as stating that Nigeria is a patriarchal society in which women are perceived as ‘properties owned by the husband’, ‘the husband is at liberty to “discipline the wife” for any wrongdoing, and this can take the form of beating or deprivation of some sort’.[3] Domestic and intimate partner violence is widespread across all geographic locations, socioeconomic levels, and religious and ethnic groups. [4]
[2] US Department of State,'2023 Country Reports on Human Rights Practices - Nigeria', 22 April 2024.
[3] European Union Agency for Asylum, ‘COI Query Response – Nigeria: Gender-based violence (GBV) in Lagos’, 10 July 2024.
[4] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report - Nigeria’, 3 December 2020.
Nigerian law criminalises stalking, as well as emotional, verbal and psychological abuse and acts of intimidation.[5] The 2015 Violence Against Persons Prohibition Act (VAPP Act) offers some protections to victims and survivors of violence in the jurisdictions in which it applies, such as the appointment of protection officers and issue of protection orders. However, resources available to victims and survivors are limited. A number of state governments provide a small number of shelters across the country but these are reportedly poorly equipped and do not provide adequate protection for victims. [6]
[5] US Department of State,'2023 Country Reports on Human Rights Practices - Nigeria', 22 April 2024.
[6] DFAT, ‘Country Information Report - Nigeria’, 3 December 2020.
The country information overwhelmingly indicates that despite the existence of laws protecting women from violence, these are not effectively enforced in practice. Enforcement is uncommon, with police often viewing domestic violence as a private matter, and either refusing to intervene in domestic disputes or blaming the victim for provoking the abuse.[7] Victims are hindered from seeking justice by factors related to court proceedings, cost, stigmatisation, lengthy legal procedures, and a lack of protection and assistance for victims.[8]
[7] US Department of State,'2023 Country Reports on Human Rights Practices - Nigeria', 22 April 2024; DFAT, ‘Country Information Report - Nigeria’, 3 December 2020.
[8] European Union Agency for Asylum, ‘COI Query Response – Nigeria: Domestic violence, including prevalence, societal attitudes and treatment of survivors, legislation, state protection, access to support services’, 27 September 2023.
Asked about why her husband would continue to have any interest in harming her if she were to return, the applicant said that her former husband is of Igbo ethnicity and in his culture, there is a lot of emphasis on the first male child. This child is meant to inherit everything and continue what the father is doing. In contrast to her own family, his family is very traditional. She believes that if she returns, he will want their son to live with him and will take him away.
These claims have some support in information I have read about Igbo culture. Family is at the centre of Igbo life and in Igbo society, birth order greatly affects family life and the responsibilities of each person. The firstborn son, called ‘Diokpara’, represents his father, has a lot of authority and is consulted on major family decisions. He typically inherits his father’s property, titles, and many responsibilities within the family and community. He represents the family in community meetings and makes sure the family’s interests are protected.[9] Traditionally within Igbo culture, young children and daughters usually stayed with their mothers, whereas the males lived in separate houses. While this has changed over time with more modern housing structures, male children and dependents remain solely under the mentorship of the father.[10] On the basis of this information, I accept the applicant’s assertion that her former husband may have a strong motivation to pursue custody of their son.
[9] Okwu ndị Igbo n'ala bekee, ‘The Importance of Birth Order in Igbo Society’, Umo Igbo Unite, ‘Culture and Connections: the Igbo family structure’, 3 February 2018, Countries and their Cultures, ‘Igbo – marriage and family’, >
While it has now been many years since the applicant and her husband’s divorce, his ongoing harassment of her family demonstrates continued animosity and aggression. I also accept her claims that despite having little involvement with their son in his early years, he is aggrieved that she has remained in Australia with their son significantly longer than was agreed, and there are cultural expectations that he will take custody of and guide their son. The applicant has been the sole carer of her son for at least the past ten years and I accept her evidence that she will strongly resist any attempts her former husband makes to take custody, which may well lead to future conflict. In all the circumstances I consider that despite the passage of time and the formal end of the marriage, the applicant’s former husband still has motivation to harm her.
From the applicant’s evidence, it seems that her parents are people of considerable influence. Her former husband did not harm her at their house. I have considered the possibility that returning to live with her parents may protect her from harm from her former husband. However, since her departure he has nonetheless been able to harass her family. His own family reside nearby and even residing with her parents, it may well be difficult for the applicant to avoid contact with him in circumstances where they share a child. The country information set out above demonstrates the prevalence of intimate partner violence in Nigeria, and the unlikelihood of the applicant accessing police protection. The applicant’s former husband has previously inflicted physical and psychological harm on her and has threatened to kill her. In all of the circumstances, I am satisfied that despite the passage of time and the fact that they are now divorced, there is a real chance that the applicant’s former partner will seriously harm her in the reasonably foreseeable future.
Does the real chance of harm relate to all areas of the country?
I accept that the applicant’s former husband previously located her through mutual friends when she attempted to relocate to an area in which she had previously lived. I also take into consideration that he would likely have links within his Igbo ethnic group that may allow him to locate her and their child within majority Igbo south-east Nigeria.
The applicant has said that she does not use social media and does not keep in contact with friends in Nigeria. On her evidence, her husband is not from a well-connected family. She has had only minimal contact with him since leaving Nigeria, and that contact has occurred through a private number. Should the applicant return to Nigeria and live in a different area where they have no previous ties, such as the capital Abuja or even another city in south west Nigeria, I consider it remote that the applicant’s former husband would be able to locate her.
At the interview with the Department, the applicant’s former representative made arguments about the risk of harm to the applicant as a single woman or single mother, as well as relating to the risk from militant groups. Asked at the hearing if the applicant had any fears other than from her former husband, she said no. However, I have considered generally the claims raised by the applicant’s former representative and the original claims she made to fear Boko Haram. In the course of her evidence she also made reference to kidnapping, crime and insecurity. She said she would be at particular risk because her accent marks her as wealthy, and she would be perceived as having lived abroad. She referred to being scared to send her son to an ordinary school which was not safe because even teachers corroborated in kidnapping students from wealthy backgrounds.
As I have rejected the applicant’s claims about her husband’s involvement with Boko Haram, I find there is no real chance of her being specifically targeted in the way that she claimed. Boko Haram largely operates in the north of the country and to a smaller extent the central and southern states of Plateau, Benue, and Delta.[11] While Abuja has seen attacks and threats by Islamist and other armed groups, the authorities have scaled up security in the region in response.[12] The number of terrorist attacks decreased in 2022 and 2023 due to factors including security forces counter-insurgency operations and demobilisation of Boko Haram ex-combatants and supporters.[13] There have nonetheless been security incidents such as a high profile attack on a prison, and there are increasing incidents of kidnappings for ransom over the past several years, with 40 recorded kidnapping cases, involving 236 victims, between January 2021 and the end of June 2023. There are also reports of general and gender-based crime and violence, including rape and sexual harassment.[14]
[11] European Union Agency for Asylum, ‘Nigeria – Country Focus: Country of Origin Information Report’, July 2024.
[12] UK Home Office, 'Country Policy and Information Note - Nigeria: Internal relocation', July 2024.
[13] European Union Agency for Asylum (EUAA), 'Nigeria - Country Focus', 11 July 2024.
[14] UK Home Office, 'Country Policy and Information Note - Nigeria: Internal relocation', July 2024.
While I take into account that the applicant may well be perceived as wealthy and as having lived abroad, and that she would be more vulnerable as a woman living on her own, I am not satisfied on the information that the level of crime or armed group activity is such that the prospect of the applicant being targeted for kidnapping, crime or violence, or of her otherwise being caught up in armed group attacks, rises to that of a real chance.
Turning to other types of harm, members of groups who live in areas where their ethnic group does not traditionally live – known as ‘non-indigenes’ or ‘settlers’ – may experience discrimination and marginalisation in accessing employment, education and housing. [15] However, DFAT assesses that this does not apply in Abuja.[16] The UK Home Office assesses that relocation may be difficult for single women.[17] The country information before me indicates that single women can face considerable barriers when relocating, including discrimination in employment and housing.[18] There is a common practice of demanding sexual favours in exchange for employment.[19] Women face discrimination in being promoted and in salary equity. In large cities including Abuja, there is a serious shortage of housing. Especially in these places, single women reported discrimination in finding a place to live.[20] According to a report of the Netherlands Ministry of Foreign Affairs, single women who move within Nigeria can face stigmatisation, insecurity and economic hardship which can make it difficult for them to settle elsewhere successfully. The Netherlands Ministry of Foreign Affairs assesses that the situation for single mothers is difficult throughout Nigeria. However, the extent to which female-led households can cope depends on factors such as the woman’s skills, her social network, age, the number of children and work experience.[21]
[15] UK Home Office, 'Country Policy and Information Note - Nigeria: Internal relocation', July 2024.
[16] DFAT, ‘Country Information Report - Nigeria’, 3 December 2020.
[17] UK Home Office, 'Country Policy and Information Note - Nigeria: Internal relocation', July 2024.
[18] Netherlands Ministry of Foreign Affairs, 'General Country of Origin Information Report Nigeria', January 2023; DFAT, ‘Country Information Report - Nigeria’, 3 December 2020.
[19] US Department of State,'2023 Country Reports on Human Rights Practices - Nigeria', 22 April 2024.
[20] Netherlands Ministry of Foreign Affairs, 'General Country of Origin Information Report Nigeria', January 2023.
[21] Netherlands Ministry of Foreign Affairs, 'General Country of Origin Information Report Nigeria', January 2023.
The applicant is highly educated, has a strong employment history and is from an affluent family. While I accept she will likely experience some discrimination and a degree of economic hardship, I am not satisfied in her circumstances that she would be entirely unable to find employment to support herself or her child, or unable to access any accommodation. I accept that the applicant may experience some harassment as an unmarried woman living on her own if she were to relocate to Abuja or another city in south-west Nigeria. However, in her particular circumstances I am not satisfied that there is a real chance of her experiencing harm that would individually or cumulatively rise to the level of persecution.
I find that the real chance of harm does not relate to all areas of the country. The applicant does not satisfy s 5J(1)(c) and so does not have a well-founded fear of persecution within the meaning of s 5J. She is not a refugee within the meaning of s 5H and does not meet the criterion in s 36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
I have found above that there is a real chance of the applicant being seriously harmed by her former husband in Lagos, and that this extends to other areas where he and the applicant have ties such that he would be able to locate her. On the same reasoning, I find there is similarly a real risk of him inflicting harm that would meet the definition of significant harm in the form of cruel or inhuman treatment or punishment, degrading treatment or punishment or even arbitrary deprivation of life if she were to return to those areas.
Section 36(2B) sets out certain circumstances in which there is taken not to be a real risk that a person will suffer significant harm. These include where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm. On the country information above regarding the lack of enforcement of laws relating to domestic violence and attitudes of the police, I am not satisfied that the applicant could obtain a level of protection that would reduce the risk of harm to something below a real risk.[22] Section 36(2B)(b) does not apply.
[22] See MIAC v MZYYL (2012) 207 FCR 21.
A further exception is that the real risk is one faced by the population of the country generally and not faced by the applicant personally. In this case, the harm will be inflicted specifically on the applicant by her former husband. I find that the real risk is one faced by the applicant personally and that the exception in s 36(2B)(c) does not apply.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. Whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country.[23]
[23] SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51.
Much of Nigeria faces very high levels of violence, including parts of the North-East, the ‘Middle Belt’, the Niger Delta region, the South-East and Kaduna and Zamfara states[24] and I find it would not be reasonable for the applicant to relocate to such a place.
[24] UK Home Office, 'Country Policy and Information Note - Nigeria: Internal relocation', July 2024.
Asked at the hearing about the possibility of relocating to a different part of Nigeria, the applicant referred to the lack of safety living in Nigeria as a single mother, to not having a job, starting afresh and the impact this would have on her child’s mental health. I accept that the applicant would be returning to Nigeria as a single woman with a minor child.
I have found above that the level of discrimination and risk of harassment the applicant may face if she were to relocate to Abuja or another city in south-west Nigeria does not rise to a real chance of serious harm, and I similarly find there is not a real risk of her suffering treatment of this nature that would amount to significant harm in her particular circumstances.
However, in assessing the reasonableness of relocation I have taken all of these matters into account. The applicant will be relocating to Abuja (or another city) where she has not previously lived. She will be the sole carer of her son. I accept on the country information that as a single woman the applicant will face harassment which, although not rising to the level of harm, will no doubt be demeaning and frightening. While I consider the applicant will eventually be able to obtain employment and accommodation and support herself and her son, I accept on the country information that she will face discrimination in doing so, including lesser pay, less opportunities for promotion and, demands for sexual favours in exchange for employment. There is a housing crisis in Abuja and other parts of the country, and the information indicates she will face discrimination in accessing housing which I accept will likely increase her vulnerability to harassment or exploitation at the hands of landlords. While I take into account that she has family connections and may have some family support, her family are not in Abuja and I do not consider that this will protect her from discrimination and harassment as a single woman and single mother in her day to day life. There is also the risk of gender-based violence which, although I am not satisfied rises to the level of a specific real risk to the applicant, I accept the applicant is more vulnerable to as a single woman. In all the circumstances, I am not satisfied that it would be reasonable for the applicant to relocate with her child within Nigeria. I find that s 36(2B)(a) does not apply.
I am satisfied that there are 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 the applicant will suffer significant harm and that it is not reasonable for her to relocate.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
Third country protection
Section 36(2) of the Act is qualified by subsections 36(3). Subject to certain exceptions, s 36(3) provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia.
The Full Federal Court has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.[25] The right referred to in s 36(3) must be an existing right, and not a past or lapsed right, or a potential right or an expectancy. The relevant ‘liberty, permission or privilege’ must be a permission which obtains its effective substance from its grant ‘and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise’.[26]
[25] MIMAC v SZRHU (2013) 215 FCR 35
[26] MIMAC v SZRHU (2013) 215 FCR 35 at [45], citing Allsop J in V856/00A v MIMA (2001) 114 FCR 408.
It would seem that Nigerian citizens have visa-free entry for a limited period to at least four African states, and possibly more.[27] Additionally, Nigeria is a member of the Economic Community of West African States (ECOWAS). The ECOWAS Treaty confers the status of ECOWAS community citizenship on the citizens of ECOWAS member states. While there were fifteen member states (Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo), Mali, Burkina Faso and Niger have recently begun arrangements to withdraw from ECOWAS.[28] ECOWAS was launched in 1975 as a political and economic union and has included free movement as a core understanding from the very beginning. Starting in 1979, a series of protocols formalised the right to free movement of the citizens to its originally sixteen member states, including the right to entry, establishment and residency.[29]
[27] Visa Openness Report 2023, ‘Africa Visa Openness Report’, 2023, The Conversation, ‘Free movement in west Africa: three countries leaving Ecowas could face migration hurdles’, 21 February 2024, K Arhin-Sam, A Bisong, L Jegen, H Mounkaila, and F Zanker, ‘The (in)formality of mobility in the ECOWAS region: The paradoxes of free movement’, South African Journal of International Affairs, 2022, 29(2), 187–205. >
The Right of Entry affords all ECOWAS community citizens in possession of valid travel documents and international health certificates the right to stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements. In accordance with the Right of Residence, ECOWAS community citizens also have the right to settle or establish in another member state other than their state of origin, ‘and to have access to economic activities, to carry out these activities as well as to set up and manage enterprises, and in particular companies, under the same conditions as defined by the legislation of the host Member State for its own nationals’. There is also a Right of Establishment which affords all community citizens the right to access economic activities and to hold employment, including pursuit of the liberal professions, throughout all ECOWAS member states.[30]
[30] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020
In practice, free movement within ECOWAS has long been undermined by a lack of implementation of the agreed upon arrangements.[31] DFAT assesses that there has been some success with adoption of the Right of Entry, although only the first phase of the ECOWAS framework for regional integration (visa-free entry for 90 days) has been implemented by all member states.[32] All ECOWAS member states have implemented the first phase of the ECOWAS framework for regional integration in relation to the Right of Entry. In principle, this means community citizens in possession of valid travel documents and international health certificates can stay in any ECOWAS member state for up to 90 days without any prior administrative or security-based immigration requirements (i.e. without a visa).[33] However, implementation challenges persist.[34] Further, ECOWAS community citizens wishing to utilise the Right of Residence must apply and obtain a residence permit or work permit just like non-ECOWAS immigrants. Granting of Right of Residence and Right of Establishment to ECOWAS community citizens is not guaranteed — refusal is possible on public order, public security or public health grounds.[35]
[31] K Arhin-Sam, A Bisong, L Jegen, H Mounkaila, and F Zanker, ‘The (in)formality of mobility in the ECOWAS region: The paradoxes of free movement’, South African Journal of International Affairs, 2022, 29(2), 187–205.
[32] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020
[33] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020
[34] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020
[35] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020
A 2022 study identified three main impediments to free movement. Members states are having trouble implementing the protocols – especially long-term residence and being able to establish a business. Secondly, individuals trying to cross the border face harassment. Thirdly, a lack of identification documents makes border crossing more complex.[36] DFAT reports that immigration authorities can refuse entry if the would-be migrant is a prohibited immigrant, a person without visible means of support, an undesirable person, or a mentally disabled person (on advice of the health authorities).[37] Longer stays over 90 days theoretically require a residence permit and few ECOWAS citizens resident in other ECOWAS countries possess the necessary identification documents to apply for residence permits, and documentation can be difficult and expensive to acquire.[38] Rivalry between Francophone and Anglophone countries can also occasionally manifest in the rejection of other countries’ documents. [39] In general, procedures and requirements for obtaining a residence permit are not well defined. In some cases, to obtain a residence permit applicants must provide a medical certificate and an extract from the police register and pay fees (Benin, Guinea, and Togo). It is more difficult for foreigners to receive a residence permit in Liberia, Senegal, and Togo, as an official application has to be submitted prior to entering the country.[40]
[36] The Conversation, Free movement in West Africa: the culture of mobility still matters despite challenges, 24 August 2022, DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020.
[38] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020.
[39] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020.
[40] DFAT, 'Thematic Report - Economic Community of West African States (ECOWAS)', 3 December 2020.
Considering the above information, I am not satisfied that the applicant does in fact have a presently existing right to enter and reside in another country. At most, she would have a short term right to enter a number of countries. It seems that while the ECOWAS treaty arrangements aspire to a right of entry and residence, this has been only partially implemented in practice. To be able to enter and reside requires the making of an application just like the nationals of non-ECOWAS countries. The application has evidentiary requirements and can be subject to refusal on various grounds. I find that the applicant does not have a right to enter and reside in another country within the sense in s 36(3).
For the reasons given above, I find that s 36(3) does not apply in the circumstances of this case.
Member of the same family unit
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
The Tribunal is satisfied that the second named applicant is the dependent child of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(c)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the first named applicant meets s 36(2)(aa) of the Migration Act; and
·(ii) the second named applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date of hearing: 8 October 2024
Attachment A - Criteria for 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.
ATTACHMENT B - 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.
…
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