2008640 (Refugee) - [2025] ARTA 1544

2008640 (REFUGEE) [2025] ARTA 1544 (26 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2008640

Tribunal:General Member S. Zelinka
Date:26 May 2025

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)that the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 26 May 2025 at 9:15am
CATCHWORDS
REFUGEE – protection visa – Nigeria – particular social group – women and girls – race – Yoruba – fear of female genital mutilation – face scarification – protection in the Economic Community of West African States (ECOWAS) countries – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any 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 on 8 May 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 nationals of Nigeria applied for the visas on 1 September 2017. The delegate refused to grant the visas on the basis that she was not satisfied that the applicants had a well-founded fear of persecution.
The applicants appeared before the Tribunal on 14 April 2025 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The first applicant is a girl currently aged [age], the daughter of the second and third named applicants. The fourth named applicant is also a child of the second and third named applicants – their son, currently aged [age]. Both children were born in [Country 1] but travelled to Australia on Nigerian passports. The mother and children arrived here in February 2017. The father (the second-named applicant) arrived in Australia in July 2016 on a student visa.
The family is of Yoruba ethnicity and are Christian. The applicant parents went to [Country 1] in 2009 for work and remained there, having two children there in [respective years].
The first applicant was not yet [age] years old at the time the protection visa application was lodged and [age] at the time of the departmental interview. She has the major claim and it was put on her behalf by her parents. They also had some claims of their own but the boy did not, relying on his membership of the family unit.
Although the first-named applicant was [age] by the time of the Tribunal hearing, she continued to be represented by her parents who spoke for her. The claims put forward by the second and third named applicants (also referred to below as applicant father and applicant mother) have been consistent since the beginning of the refugee status determination process. The claims as presented below are derived from their written statements, their departmental interview and the Tribunal hearing.
Claims
As noted, the claims have been consistent from the beginning. The applicants fear that the first-named applicant (also referred to here as the applicant daughter)) will be forced to undergo the ritual of female genital mutilation/cutting (FGM/C). In answers to questions in the protection visa application, the applicants stated that they come from a very traditional background which maintains ‘tribal and cultural beliefs and heritage’. Female circumcision is performed and the girl’s face is scarified to show that the circumcision has been done. This happened to the applicant mother in the past and the applicant parents are determined that it will not happen to the applicant daughter. They note that only two years earlier, a cousin of the applicant daughter nearly died from infection following FGM/C. The applicant mother is still living with physical and emotional pain in the aftermath of her own circumcision and scarification many years ago.
Applicant father
The Tribunal spoke to each of the two adult applicants separately. The children were not present. The applicant father said that he was of the Yoruba tribe; his family’s traditional home (and where he grew up) was in Osun State. His parents still live there although his mother travels frequently to Ibadan in neighbouring Oyo State. The applicant attended boarding school and university in Ogun State which adjoins both Oyo and Ogun to their south. After university, he went further south to the nation’s major city, Lagos, to work.
He always wanted to be a church pastor and joined a very large Pentecostal church where he could gain “work experience” in evangelising whilst working in the administrative offices of the church. In 2008 he married the third-named applicant: more or less an arranged marriage with the two families knowing each other. The applicant wife’s family came from Ibadan where the second applicant’s mother spent a good deal of time. The new couple wished for a different sort of life than the traditional one led by other members of their families and so in 2009 they went to [Country 1] where the applicant mother had found employment. There was an outreach branch of the Lagos church and the applicant father helped there.
He and his wife returned to Nigeria following the birth of each of their two children in [Country 1] to show the babies to their families. The applicant father states that he has seen his family only three times since 2009 – the two visits with the babies and one other time. He had to go to Nigeria in 2016 to arrange his student visa to Australia but he did not see his family. He was aware that the family expected him to conform to all its traditions which included circumcision for both boys and girls – shortly after birth for boys and at five years of age for girls. The applicant parents did not have an objection to male circumcision but ensured that it was done in the hospital following their son’s birth in [year] so that the tribal elders could not carry out the procedure in the traditional (non-clinical) way at home. When they took their baby daughter [home], the elders told them that they would expect to see her for the traditional ritual when she was turning five. The applicant parents have never been back to their traditional homes with their children since [year].
The applicant father still wanted to be a pastor and was accepted for theological studies in Australia in 2016. He came ahead of his wife and children who followed him in early 2017 with dependent’s visas. He subsequently found it too expensive to continue his studies and had to drop out. The family were fearful about returning to Nigeria and applied for protection.
The Tribunal asked the applicant husband if he were in communication with his family in Nigeria. He said that he used to talk to them on [messaging app] but has not spoken to them for five years. He said they became persistent during 2019 asking when he was bringing the applicant daughter home so that the tribal elders could perform the necessary ritual. When he said he was not going to bring her as he disagreed with FGM/C, they became very angry and threatening towards him. Eventually he discontinued any communication.
The Tribunal put it to him that if he returned to Nigeria, he could go back to Lagos where he had previously lived and worked and take up his life there unbeknownst to his family (or to the family of his wife). If the family did not know he and his daughter were in Nigeria, they could not harm her. The applicant father said it would be impossible for him to stay hidden in Lagos for any length of time. He said that personal privacy was not a concept known to or respected by Africans. He said that there were members of his family living in Lagos: the family were traders and moved between there and Lagos, although returning to Osun when traditional rituals and gatherings dictated. Nigerians always asked questions to establish one’s identity and family. One could not remain anonymous for very long. The applicant father wanted to stress this point and made a written submission about it.
He said that the FGM/C would have to take place in Oyo State because the applicant mother came from there. However, as soon as the applicant parents were located in Nigeria – about which the applicant had no doubt at all – the elders would come and see them and would, by force of their authority, make the applicant parents relinquish their daughter and take her away for the ritual. Such was the power of the culture and tradition that the applicant father said he would not be able to withstand the pressure, even though he consciously rejected the very thought of FGM/C being perpetrated on his daughter.
Applicant mother
The Tribunal then spoke to the applicant mother. She had grown up in a traditional Yoruba family in Ibadan, Oyo State and attended boarding school before going to university in neighbouring Ogun State to study [subject]. Unfortunately, money problems casused her to discontinue. Through their families, she met and married her husband and moved with him to Lagos before they both moved to [Country 1] in 2009.
As part of her traditional culture she had been circumcised and scarified as a child. The markings on her cheeks are visible. When she gave birth to her first child in [year], more of the long-term ill-effects of her own FGM/C became apparent and she needed to have a caesarian delivery. She and her husband began to seriously consider some of the traditional beliefs with which they had both been raised and decided that if they had a daughter, she would never be subject to FGM/C. They had no objection to male circumcision, only the female version, so they decided to have their baby son circumcised in the hospital where he was born. When they visited Nigeria to show their son to their families, he was already circumcised. In this way, they circumvented the traditional ceremony and circumcision by the tribal elders which involved no medical safeguards.
When their daughter was born in [Country 1] [number] years later – another extremely painful experience for the applicant mother because of her own FGM/C – the applicant parents again returned to Nigeria to introduce her to the family. They felt safe doing this because their culture dictated that girls were not circumcised until they were five years of age. However, even on this visit when the daughter was still a small baby the elders reminded the parents that they would expect her to be brought to Oyo when she was five so that the traditional rituals could be performed. The elders noted that the observance of cultural traditions was paramount and there would be very bad consequences if tradition was not observed.
The applicant mother and daughter have not returned to Ibadan except for a very brief trip in 2016 when the applicant mother and her children were in Lagos for one week sorting out visas to go to Australia and join the applicant husband. The applicant wife and children arrived in Australia in February 2017. Later that year, the applicant wife was horrified to hear news from Nigeria that her daughter’s cousin had died after FGM/C.
During 2019, there was more communication from Nigeria about bringing the daughter home for her traditional ritual. Both families – the husband’s and wife’s, inter-related - in Nigeria were aware that the daughter would turn five in October. They also knew that the husband’s student visa ended in December, and so they expected the family back in Nigeria immediately after that. When the family did not return, they were subject to a barrage of angry threats of retribution. As noted above, the applicant parents ceased communications with Nigeria and have not spoken to their parents or other family members since that time.
The Tribunal asked how she knew that family pressure would still be applied to them if they had ceased communication. The applicant mother said that she knew how deeply embedded traditions were in her family and she was certain that the elders would not change their minds. She said that even though she had no direct communication with her family, she did have some information. In 2019, about the time of their departmental interview (which the Tribunal notes was August 2019), she looked at the [social media] page of one of her cousins. This cousin had posted a video of a traditional ceremony being held at the time: not an FGM/C but a traditional scarification ritual for boys. When the camera panned around the elders involved in the ceremony, the applicant wife noticed her own mother and several aunts. The applicant wife concluded that her mother was still deeply involved in family rituals dictated by their tradition and culture. She believes that her own mother (along with other elders) is still committed to the necessity of having the applicant daughter circumcised in the traditional manner and will continue to pursue this if the family returns to Nigeria.
The Tribunal put it to the applicant wife that her daughter was now five years past the time when the ritual should have taken place. The applicant wife said that although the circumcision should be done when a girl turns five, it does not mean that it will not happen later if that first date is missed for some reason. It can happen at a later time if necessary.
The Tribunal put it to the applicant wife that circumstances in Nigeria have changed since the time they left. It noted that the Violence Against Person Prohibition Act (VAPP Act) which stipulates punishments for perpetrators of all forms of gender-based violence became operational in Oyo State in February 2022[1]. The same law had already been enacted in several other states in the predominantly Yoruba south-west region and the Tribunal put it to the applicant that this would provide legislative protection to her and her husband in refusing to allow FGM/C for their daughter.
[1] O. Osoteku, “Oyo formally presents VAPP law to the public”, Voice of Nigeria, 24 February 2022 at von.gov.ng
The applicant wife had grave doubts that legislation could provide protection as traditional and customary law was much stronger than ‘western law’. Police do not involve themselves in matters involving tradition nor in matters that are considered to be within the family.
The Tribunal put it to her that the DFAT report stated ‘There are no reports that FGM/C has occurred without the consent of parents’[2]. The Tribunal noted that she and her husband were adamantly opposed to the process and would therefore not allow their daughter to go to Oyo knowing what would happen. The applicant wife said the problem was that if the elders turned up, she and her husband would be powerless against them, even if they stated they were taking the girl away with them to Oyo. She said that it would not be a matter of consenting, but rather that in the face of so much traditional authority confronting them, they would be powerless to assert that they did not consent. Both applicant parents agreed that this was a difficult concept to convey, but were adamant that the strength of tradition was an extremely powerful force and overwhelmed individuals who had been raised in that culture.
[2] DFAT, Country Information Report: Nigeria, 3 December 2020, para.
The Tribunal also raised the notion that, as Nigerian citizens, the family would be able to go and live in one of the other ECOWAS countries if they returned, thereby avoiding their families in Nigeria. The representative said he would address that point in a written submission, which he did.

REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
All four passports belonging to the applicants are on file, having been submitted to the Department. They are Nigerian passports. On this basis, the Tribunal finds that the applicants are Nigerian nationals and that Nigeria is the receiving country in this case.
Credibility
As noted, the applicant parents – the only ones who have presented testimony to either the Department or the Tribunal – have been completely consistent with their claims since they first lodged their protection visa application in 2017. At hearing, the two adult applicants were adressed both separately and then together. Again, there were no inconsistencies between their testimonies. The subjective fear of the two adult parents in respect of the harm that could befall their daughter was palpable. Their fear has led them to keep their daughter out of Nigeria and away from the tribal elders almost from birth and completely since the girl was [age] years old.

Both applicants were willing and able to answer any questions put to them; to expand on or clarify their testimony as needed; and did not appear to embroider any of their answers. The Tribunal has no concerns about their credibility, finding that they were truthful witnesses.
Harm by FGM/C
The Tribunal accepts that all the applicants are members of the Yoruba tribe, and within that tribe from families which places great store on its culture, tradition and rituals. One ritual which the family believes must be observed is the ritual of FGM/C for girls in the family when they turn 5, a ritual performed by tribal elders at a family home in Oyo State. The circumcision is accompanied by some scarification on the cheeks to indicate that the ritual has been completed. The applicant family includes a daughter who avoided being circumcised at five years of age by being out of Nigeria but who will still be expected to undergo circumcision and scarification on her return to that country.
Female genital mutilation/cutting (FGM/C) is the term used nowadays in scientific or sociological papers and in country information reports issued by agencies such as DFAT or UNICEF to refer to ‘all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons’[3]. Nigeria still has the third highest absolute number of women and girls (19.9 million) who have undergone FGM/C worldwide. It is more commonly practised in the south, driven by grandmothers and mothers-in-law aiming to curb promiscuity, prepare girls for marriage and conform to tradition.[4]
[3] DFAT, Country Information Report: Nigeria, 3 December 2020, para. 3.89.
[4] UNICEF, Situation of Women and Children in Nigeria, no date given, at >
The European Union Agency for Asylum states unambiguously that ‘FGM/C amounts to persecution’[5]. The Tribunal is also of this view. Scarification involves cutting marks on the cheeks deep enough to leave permanent scars. The Tribunal finds that this ritual constitutes serious harm amounting to persecution if it is done to an unwilling recipient without informed consent, such as the applicant daughter in this case.
[5] European Union Agency for Asylum, Country Guidance: Nigeria, 2021, para. 2.16.3 at >
The question in the applicant’s case is whether this ritual will occur despite her being past the customary age of five years. When the applicants lodged their protection visa application, their daughter was just shy of her [age] birthday, with more than [time period] until she was due to be circumscised. However, by the time of this hearing, she is [age] and it is now argued that the elders will still insist on its taking place. Country information supports the claim that ‘FGM can occur at different point in a woman’s life’[6] although it is more commonly performed up to the age of 15. The Netherlands Ministry of Foreign Affairs in its report in 2021 noted that ‘The first period/signs of puberty, prior to marriage and during pregnancy/childbirth are the main trigger points for FGM in teenagers and married women’[7]. The Tribunal finds that the applicant daughter is not protected from undergoing the ritual just because she has passed the age where it is usually done in her traditional family.
[6] UK Home Office, Country Policy and Information Note – Nigeria: Female Genital Mutilation, July 2022, para. 4.2.1.
[7] Cited in UK Home Office, op.cit., para. 4.3.4.
The Tribunal must also examine the question of whether the lack of parental consent will protect their daughter from FGM/C performed by the elders of her tribe. The applicant parents have been frank about their inability to withstand face-to-face pressure from elders of the tribe, including their own parents, who would be forcing the parents to temporarily relinquish their daughter whilst they conducted the ritual. The Tribunal notes the independent evidence at paragraph 39 above that it is frequently the grandmothers enforcing FGM/C. The Tribunal notes the honesty of the parents in admitting this rather shameful realisation that they may not be able to protect their daughter from serious harm, even though they want to. The Tribunal finds that this is a situation of coercive control, a concept which has only recently found its way into Australian legislation, mainly in the field of domestic and gender-based violence.
The Western Australian Government in a public health and safety campaign recently described coercive control as a pattern of abusive behaviours to take away a person’s freedom and independence, and can sometimes make the person feel afraid. People who use coercive control use many different abusive behaviours to maintain power and control[8]. This aptly describes the tribal elders using the weight of family tradition and practice and the belief that rituals are good for the tribe as a whole as well as the individual to compel obedience in the applicant family. They also apply punishment in the form of ostracism from the family if there is disobedience – and sometimes worse. DFAT notes that “Girls may be ostracised, shunned or assaulted by their family or community if they have not undergone FGM/C”[9]. The Tribunal finds it reasonable to assume that such punishment would also extend to those who prevented the girl from undergoing FGM/C.
[8] 9 May 2025
[9] DFAT, op.cit., para. 3.92.
The Tribunal also considers the question of location. The applicant parents originate from Oyo and Ogun States but lived together in Lagos. All of these locations are within the south-west region of Nigeria, which is predominantly Yoruba and Christian (Yoruba meaning both the ethnicity and the language). The applicant children have not lived in Nigeria and if returned to Nigeria would be with their parents. Given the inter-regional and inter-ethnic conflicts currently in force in Nigeria, not to mention language and cultural accommodation, it would not to be reasonable to expect the applicants to live in another region beyond the south-west if they were to return to Nigeria. Within the Yoruba homelands, there is a chance that the applicants could be located by those looking for them, through a network of family contacts. The applicant mother is particularly vulnerable to recognition given her scarification which identifies her clan grouping. The chance of locating the applicant family is not remote.
The Tribunal finds that there is a real chance that the applicant family would be located and the daughter taken away for the ritual FGM/C. The Tribunal finds that there is a real chance that the applicant daughter will suffer serious harm amounting to persecution for reason of her membership of a particular social group constituted by traditional Yoruba women and girls.
A particular social group is a collection of persons who share a certain characteristic or element which must unit them and enables them to be set apart from society at large. Those who share it are a cognisable and recognisable group in society. Yoruba as a group share the characteristics of ethnicity and language which sets them apart from other Nigerians. The Yoruba are recognised as one of the three main ethno-linguistic groups in Nigeria and the predominant group in the south-west of the country[10]. Women are a cognisable half of this group. There are many clans and families within Yoruba and many of these adhere to traditional ways, including traditional religions, rituals, clothing and (as in the case of the applicant’s mother), scarification. Yoruba women identify themselves as such, and are identifiable to others.
[10] DFAT, op.cit., para. 2.8
The essential and significant reason for the serious harm of FGM/C befalling the applicant daughter is her membership of a particular social group constituted by traditional Yoruba women and girls. The Tribunal is not satisfied that there is adequate State protection for a woman or girl seeking to avoid FGM/C, despite the introduction of federal legislation known as the Violence Against Person Prohibition Act (VAPP Act) in May 2015. It was not assented to in Oyo State – the state in which the applicant daughter has to undergo her FGM/C - until 26 February 2021. The UK Home Office reports that:
There is sometimes a lack of awareness amongst the police and other state actors involved in enforcement and protection victims about law on FGM. NGOs have fund that they have to convince local authorities that state laws apply in their districts. Police are also reported to treat the practice as a family or community affair … and where police respect the tradition themselves may not intervene at all.[11]
[11] UK Home Office, Country Policy and Information Note – Nigeria: Female Genital Mutilation, July 2022,para. 2.5.7.
The UK report also cites the Dutch Foreign Affairs Ministry report that there were no prosecutions or convictions from June 2018 to March 2021 when its survey finished.[12] The Tribunal is not satisfied that the applicant daughter can access effective protection measures. The Tribunal is satisfied that the harm the applicant daughter fears relates to all areas of the receiving country because the ongoing traditional requirement that the applicant daughter must undergo FGM/C relates to her personally, not where she lives. It is not restricted to a geographical setting.
[12] Ibid.
On all the evidence before it, the Tribunal is satisfied that there is a real chance that serious harm will befall the first-named applicant for reason of her membership of a particular social group constituted by Yoruba women and girls. The Tribunal is satisfied that she has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) of the Act and that she mees the definition of refugee as set out in s 5H(1) of the Act.
Finally, the Tribunal considered the qualification in s 36(3) that provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. The Tribunal raised at hearing the fact that Nigerians, as members of ECOWAS, have a right to enter and reside in other ECOWAS countries with relative ease. ECOWAS is the Economic Community of West African States, a group of formerly 15 but now only 11 countries bound by treaty which includes a Free Movement Protocol.[13] However, the Tribunal notes that if the applicants can go to another ECOWAS country, so too can those elders who are seeking the applicants, simply by virtue of their Nigerian citizenship. As noted in paragraph 47 above, the applicant’s location – as long as she can be accessed by other Yoruba people – is not a consideration in assessing the real chance of serious harm.
[13] DFAT, Thematic Report - ECOWAS, 3 December 2020
The applicant’s representative also addressed this point about “safe third country” protection pointing out that only the first phase of the Right of Entry under the Free Movement Protocol, which allows for visa-free entry for up to 90 days, has been fully implemented.[14] The DFAT report on ECOWAS notes that inconsistency between ECOWAS Protocols and the national laws and policies regarding migration across ECOWAS member states is a key challenge. The serious questions raised about the effectiveness of the Treaty in allowing stays beyond the initial 90 days leads the Tribunal to find that the applicants do not have a safe third country option.
[14] Ibid, para. 3.4
Conclusion
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)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second and third-named applicants are the parents and the fourth named applicant is the brother of the first-named. The Tribunal is satisfied that they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(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)(a) of the Migration Act; and
·(ii)       that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Hearing:  14 April 2025
Representative:  Mr Michael Jones (MARN: 5511598)
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.
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36     Protection visas – criteria provided for by this Act
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(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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