2010094 (Refugee)

[2022] AATA 5185

2010094 (Refugee) [2022] AATA 5185 (22 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Dalila Machado Medeiros Allen (MARN: 2014135)

CASE NUMBER:  2010094

COUNTRY OF REFERENCE:                   Nigeria

MEMBER:David James

DATE:22 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 November 2022 at 3:35pm

CATCHWORDS
REFUGEE – protection visa – Nigeria – Jaba ethnicity – religion – Pentecostal Christian –fear of being killed by Boko Haram or the Muslim Fulani Herdsmen  – religious worship being deprived or killed due to religious and/or ethnic background – particular social group – farming in Kaduna State – psychological trauma and harm– health care worker –Tribunal considers that the circumstances of the primary applicant’s case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Nigeria, applied for the visas on 2 February 2019. The delegate noting the secondary applicant and dependent of the primary applicant did not make any claims was satisfied that the secondary applicant was a member of the primary applicant’s family unit as defined in s 5(1) of the Act. As to the primary applicant’s claims the delegate refused to grant the visas on the basis that the delegate was not satisfied that the primary applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed to Nigeria, that there is a real risk the primary applicant will suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore the primary applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act. As the delegate refused to grant a protection visa to the primary applicant the secondary applicant did not satisfy s 36(2)(b) or s 36(2)(c) of the Act as she was not a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application and who engages Australia’s protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. Therefore, the delegate refused to grant the secondary applicant a protection visa.

3. The applicants appeared before the Tribunal on 27 October 2022 to give evidence and present arguments.

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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.

10. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

12. The issues in this review are whether the primary applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the primary applicant was returned to Nigeria he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk that the primary applicant will suffer significant harm as defined in s 36(2A) of the Act.

    Primary applicant’s claims for protection

13. The primary applicant in the visa application stated (in summary) that he left Nigeria for Australia for higher education opportunities, and in Australia obtained his master’s degree in [course name deleted]. However, whilst in Australia he saw that the situation in his country (Nigeria) and in his home state of Kaduna become an unsafe atmosphere and environment where he could not fulfil his professional development within the public health sector of Nigeria. In his application and accompanying material he further explains he is a Pentecostal Christian and of the Jaba ethnic group.

14. He states that his home state has historically been volatile due to religious and ethnic tensions and while his family was safe, Muslims killed his friend and his friend’s father. He explains that for seven days he stayed at the army barracks with other families and later in 2000 relocated with his family from [Village 1]to [Village 2]after the ‘shariah crisis’ which claimed over 2000 lives. The applicant claims he lost his classmates and a friend after their graduation from secondary school and his family abandoned their farm located along the [location deleted] due to their fear of violence from the Muslim Fulani Herdsmen.

15. Although he states he has not experienced any physical harm “there is great potential for him to be harmed due to a cocktail of exacerbating and incessant religious, ethnic and Muslim Fulani Herdsmen attacks that is going on”. His claims (in summary) as outlined in the visa application are that:

    ·He has experienced psychological harm as a result of being exposed to several riots and religious crisis from as far back as his childhood in his home state of Kaduna resulting from the Muslim extremists.

    ·As an adult he has a fear of being killed by the infamous terrorist group called Boko Haram due to several attacks on Christians and their churches which has caused him a great deal of (psychological) harm.

    ·In addition to the activities of Boko Haram he fears attacks from the Muslim Fulani Herdsmen who have attacked Christian communities in Southern Kaduna, and this has exposed him to more fear and the danger of being harmed.

    ·He fears being harmed psychologically, socially and through the constant intimidation from Muslim extremists and that he will not be protected by the government in his state and will be treated as a second-class citizen. He fears suffering the deprivation of his right to worship and that he would live in constant fear of the possibility of being killed due to his religious and ethnic background if he was to return to Nigeria.

    ·He says there is no guarantee of safety and protection as the authorities lack the will or capacity to protect Christians.

    ·He is unable to relocate to any part of his country due to the danger and potential of being harmed across the country due to the worsening security situation.

16. In the application the primary applicant referred to his supporting documentation which included his curriculum vitae together with related educational certificates; personal identity documents; academic record from [University 1]; statutory declarations from both applicants declaring no convictions for any crime or offence in any country; and a document headed ‘Coming to Australia’ which outlines his personal history, his claims as outlined above and statements by the applicant under the headings of ‘Surviving Nigeria: The Islamic Agenda and the threat it poses to Northern Christians in Nigeria’; in which the applicant discussed his historical view of the penetration of Nigeria by Islam. Under the heading of ‘Islam as a threat to the Northern Christian: My Experience’, the applicant repeats his history as provided in his claims as to the farm attacks in the Middle Belt by the Herdsmen and other Islamic groups and the history of purported religious violence in Kaduna State. Under the heading of ‘One cannot seek help from harm from an Incapacitated and/or unwilling Government’ and ‘Is the Nigerian Government Capable of Ensuring My Safety in the Event That I Return’; the applicant provides his view that the Nigerian authorities have a history of late responses to religious motivated violence within Nigeria and that there is no infrastructure or amenities that assist citizens in their recovery from violence or the exposure to violence in Nigeria. Under the title of ‘The propensity for Harm that Nigeria presents’; the applicant refers to the history of violence in Kaduna State suggesting that it is motivated by religion and occasioned by the Fulani Herdsmen and references as to sources relied upon by the primary applicant in this document/submission.

    Department interview

17. The applicant was interviewed by the Department on 21 January 2020.

    Delegate’s decision

18. The delegate’s decision of 5 June 2020 to refuse the protection visas was made on the information before the delegate. The delegate found that the Fulani Herdsmen rather than Boko Haram whose activities are largely in the Northeast of Nigeria, poses the largest threat to Christians in the ‘Middle Belt’ of Nigeria. This area being the primary applicant’s former family farming home. As the primary applicant was a healthcare professional whose family had abandoned farming the delegate found the chance of the applicant being harmed by the Herdsmen who predominately target rural farmers was remote. Similarly considering that Boko Haram’s activities are largely contained in the Northeast of Nigeria the delegate found that the chance of the applicant being harmed by this group in his home region on account of his religion was remote. The delegate found that the primary applicant does not have a well-founded fear of persecution. The delegate also found that the primary applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being removed to Nigeria.

19. The delegate found that the primary applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act, and was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants: s 36(2)(b) and s 36(2)(c) of the Act.

20. As such the secondary applicant was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the secondary applicant: s 36(2)(b) and
    s 36(2)(c) of the Act.

    Invitation to attend hearing

21. On 27 September 2022 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 27 October 2022. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their applications but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.

    Pre-hearing submissions to the Tribunal – 20 October 2022

22. On 20 October 2022 the Tribunal received a written submission with a series of attachments in support from the applicant’s solicitor. The submission outlined the primary applicant’s personal background, education history, qualifications and work history providing relevant material in support including identity documents for both applicants and their child, their marriage certificate and Country Information including extensive referencing of the DFAT Country Information Report Nigeria, 3 December 2020 (see below at paragraph 24) and some other sources including media reports as to the activities of Boko Haram. The submission addressed the relevant legislation and referred to the primary applicant’s claims as outlined in his visa application, summarising them as:

    a.The applicant claims that he is a Christian.

    b.Prior to departing Nigeria, the applicant claims he suffered psychological harm as far back as his childhood because of religious incidents in his home state of Kaduna as well as throughout Nigeria.

    c.The applicant claims that Kaduna State has been historically volatile due to religious and ethnic tensions.

    d.The applicant further claims that his first experience of being persecuted for being Christian was during the Zango Kataf religious crisis on or around 1992 when the applicant was seven years old. The applicant claims that while his family was safe, Muslims killed his friend and the friend’s father. For seven days, the applicant stayed at the army barracks with other families.

    e.On or around 2000, the applicant claims his family relocated from[Village 1] , Kaduna State, Nigeria to a town approximately 20 km away named [Village 2], in Kaduna State, Nigeria after the first shariah crisis which claimed 2000 lives.

    f.On or around 2004, a year after graduation from secondary school the applicant claims he lost his classmate and friend due to religious conflicts.

    g.On or around February 2014, the applicant claims that his family abandoned their farm located along the [location deleted] out of fear of violence from the Fulani Herdsmen.

    h.The applicant further claims that due to Boko Haram attacks on Christian churches during the period from on or around 2012 to 2014, he was in constant fear of being attacked or killed when he attends church in Nigeria.

    i.The applicant also claims that although he has not experienced any physical harm directly, there is a great potential for the applicant being harmed due to a “cocktail of exasperating and incessant religious, ethnic and Muslim Fulani Herdsmen attacks that is ongoing”.

    j.The applicant claims he cannot seek help from the authorities because they are “an incapacitated and/or an unwilling government.”

    k.The applicant claims he is unable to relocate to any part of Nigeria due to the danger of being harmed across the country.

23. This submission also identified that the delegate had accepted that the primary applicant had provided a plausible account of his experiences growing up in Kaduna State, Nigeria which was consistent with Country Information. It was further highlighted that the delegate accepted that the primary applicant held a subjective fear as to returning to Nigeria on account of his religion. In this regard the primary applicant’s solicitor submits to the Tribunal that the primary applicant satisfies the subjective element of a well-founded fear of being persecuted for being a practising Christian in Nigeria. As to the objective element the submission with reference to relevant authorities submits that past persecution provides a strong indication as to the applicant’s fear of persecution in the future. The submission in this regard relies upon Dawson J’s comments in Chan v MIEA[1] as to a ‘real chance’:

    A fear can be well-founded without any certainty, or even probability, that it will be realised…A real chance is one that is more than remote, regardless of whether it is less or more than 50%.

    And His Honour’s (Dawson J) comments at [396] in Chan:[2]

    Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.”

    [1] (1989) 169 CLR 370 at 397-398 (Dawson J).

    [2] Ibid at [396] (Dawson J).

    Country Information

24. The Tribunal has taken into account the DFAT Country Information Report Nigeria, 3 December 2020, as relevant, including: the introductory ‘Map’ which identifies Kaduna State as being part of the ‘Middle Belt’ of Nigeria and not part of the North-East zone of the country.

    ‘Demography’ at 2.6 to 2.10 where at 2.8 and 2.9 it provides that:

    Nigeria is composed of over 250 ethnic groups (see also Race and Nationality). The Hausa, based predominantly in the north, is the largest, comprising 30 per cent of the population, followed by the Yoruba in the southwest (15.5 per cent), the Igbo in the southeast (15.2 per cent) and the Fulani in the north (6 per cent). English is the official language, although various constitutional articles also provide for the use of other national languages in official settings, including parliamentary business.

    Nigerians predominantly practise Islam and Christianity, with 51.6 per cent of the population identified as Muslim (majority Sunni) and 46.9 per cent identified as Christian. The population is broadly divided between a Muslim north and a Christian south, although there are communities of each located nationwide (see also Religion).

    ‘Security Situation’ at 2.54 to 2.58 noting that 2.54 and 2.58 it is reported that:

    While varying according to location, the security situation across Nigeria is unstable and highly fluid. Nigeria is confronted by multiple security challenges, including high rates of crime (including illicit gang activities), long-running insurgencies and secessionist movements in various parts of the country, escalating communal conflicts (sparked by land use disputes but increasingly drawing upon multiple ethno-religious motivations) and rural banditry. In response to the range of security challenges confronting Nigeria, President Buhari announced a new National Security Strategy in December 2019.

    Long-standing tribal, religious, political and community disputes often lead to serious violence and unrest. According to the Council on Foreign Relations, Nigeria registered 7,972 deaths related to political, economic or social grievances in 2019. The majority of these (2,758) occurred in northeastern Borno state, followed by Zamfara state (1,274) and Kaduna state (487), also in the north. Over half of these deaths were related to the Boko Haram insurgency, although deaths have occurred in all parts of the country. According to human rights observers, security forces have often responded to civil unrest with disproportionate force, causing fatalities.

    ‘Boko Haram Insurgency’ at 2.59 to 2.67 which provides:

    Boko Haram, which translates roughly to ‘western education is sinful’ in the Hausa language, is a radical Islamist movement that has fought since 2009 to overthrow the government and create an Islamic state in northern Nigeria. The organisation split into two factions in 2016, one pledging allegiance to the so-called Islamic State organisation (Da’esh) and calling itself the Islamic State West Africa Province (ISWAP); the other known as Jama’atu Ahlis Sunna Lidda’await Wal-Jihad (JAS). Most Nigerians still refer to both groups collectively as Boko Haram. This report does likewise.

    Boko Haram promotes a strict version of Islam that forbids Muslims from taking part in any political or social activity associated with Western society, including voting in elections, wearing shirts or trousers, drinking alcohol or receiving a secular education. While initially headquartered in the northeastern city of Maiduguri and still largely centred in Borno state, the Boko Haram insurgency has spread across northern and central Nigeria and into neighbouring countries. The group has also carried out attacks against the police and UN headquarters in Abuja. The Boko Haram insurgency has resulted in thousands of deaths and injuries, widespread destruction, the internal displacement of approximately 2.7 million persons and the external displacement of almost 250,000 Nigerians to neighbouring countries.

    The Boko Haram insurgency has targeted a range of groups, including those associated with the government (including police, military and politicians); individuals seen as supporting ‘western’ concepts such as secular education or elections; foreign aid workers; and clerics from other Muslim traditions and Christian preachers. Christians are opportunistically targeted by Boko Haram. However, Muslims are also victims of attacks, in greater numbers than Christians, principally because they constitute a greater proportion of the population in the affected northern states.

    Its insurgent activities have included conventional warfare against state security forces; targeted killings of perceived opponents; bombings of churches, bus ranks, bars and military barracks; and mass attacks on villages and towns, resulting in looting, killing and mass abductions, including of children. In 2014, Boko Haram abducted 276 mostly Christian schoolgirls from Chibok, Borno state, reportedly forcing them to convert to Islam and become ‘wives’ for Boko Haram fighters. Around 100 of the Chibok girls remain unaccounted for. In February 2018, insurgents abducted a further 110 schoolgirls from Dapchi, Yobe state, releasing 104 of the girls two weeks later after negotiations with the government. Five of the remaining girls reportedly died in captivity and one girl continues to be held hostage, allegedly for refusing to deny her Christian faith.

    Boko Haram has also paid, forcibly conscripted, or otherwise coerced young boys and girls to serve in its ranks and perpetrate attacks and raids, plant improvised explosive devices (IEDs), serve as spies, and carry out person-borne IED bombings, often under the influence of drugs. For example, in the June 2019 attack in Konduga, Borno state, Boko Haram insurgents remotely detonated explosives strapped to two girls and a boy, killing 30 people.

    Attempts by security authorities to curtail the Boko Haram insurgency in an enduring fashion have not proved fully successful to date. The government initially declared a state of emergency in May 2013 in the three northeastern states in which Boko Haram was strongest – Borno, Yobe and Adamawa – while in the same year, the Office of the Prosecutor in the International Criminal Court declared the fighting in northeastern Nigeria to be a non-international armed conflict. By March 2015, a regional coalition made up of troops from Nigeria, Cameroon, Chad and Niger had succeeded in winning back all of the towns under Boko Haram’s control, leading President Buhari to declare in 2015 that Boko Haram had been ‘technically defeated’. The insurgency has successfully regrouped in recent years, however, and continues to represent a significant security threat in the northeastern states. International observers report there was a resurgence of Boko Haram activity in 2019, with Boko Haram responsible for 1,136 deaths in Nigeria in 2019, compared to 872 in 2018.

    Examples of recent Boko Haram insurgent activities include (but are not limited to):

    -     in January 2019, Boko Haram fighters killed at least 60 people in the town of Rann, Borno State;

    -     in July 2019, suspected Boko Haram fighters killed at least 65 people attending a funeral in Borno state; while in the same month a Da’esh-aligned faction of Boko Haram kidnapped six aid workers near Damasak in Borno state, subsequently executing five of them.

    -     On 28 September 2020, militants from ISWAP overran a Nigerian military base in the northeastern town of Gubio, killing soldiers and seizing materiel.

    On 28 November 2020, in an attack centred on the village of Koshobe in Borno state, at least 43 farmers were killed in what the UN described as ‘the most violent direct attack against innocent civilians this year’. Some reports claim up to 110 people were killed, including around 30 beheaded. A number of people, including around ten women, remain missing, presumably abducted. The attack occurred relatively close to the state capital of Maiduguri, and is strongly believed to have been carried out by ISWAP.

    Boko Haram’s resurgence comes despite the deployment of thousands of troops to the northeastern states, and the reported government allocation of almost USD80 million (AUD110.8 million) per quarter to combat the insurgency. International observers have expressed concern over a lack of discipline in military operations, noting that reports of low morale among soldiers caused by insufficient military equipment and medical care (and fuelled by high rates of corruption within the military) may be degrading the effectiveness of efforts to defeat the insurgency. Human rights groups have also raised repeated concerns government security forces have committed significant human rights abuses in the context of counter-insurgency efforts against Boko Haram, including extrajudicial killings, torture, arbitrary arrests and other abuses (see relevant sections).

    DFAT assesses Boko Haram poses a serious ongoing threat to security in the northeast of Nigeria, with limited prospects of being neutralised in the short term.

    ‘Communal Violence in the Middle Belt region’ at 2.68 to 2.71:

    A rolling conflict between farmers and migratory herdsmen in the Middle Belt region (Plateau, Adamawa, Nasarawa and Taraba states) has escalated considerably since January 2018, claiming more civilian lives than the Boko Haram insurgency, displacing hundreds of thousands and sharpening ethnic, regional and religious polarisation. Fundamentally a land-use dispute, the conflict has taken on religious and ethnic dimensions (see also Religion). International Crisis Group has described the conflict as Nigeria’s gravest security challenge.

    Since its 2018 escalation, the conflict has involved an ongoing series of clashes between predominantly Fulani herdsmen, and mostly Muslim farmers followed by reprisal attacks against villages. Hundreds have been killed or injured in the clashes, and there have been numerous cases of conflict-related abductions. Clashes and reprisal attacks continued throughout 2019, most notably with the killing of over 130 people in Kajuru, Kaduna State, in clashes between Fulani and Adara communities.

    The government has deployed additional police and army units to curb the violence, including two military operations—Exercise Cat Race in February 2018 and Operation Whirl Stroke, which is ongoing. These efforts, in search of enduring solutions to the conflict, have involved community consultation and have not been purely military in nature. However, international human rights groups have reported uncoordinated and inadequate responses by state and federal authorities may have deepened mistrust and perception of authorities’ bias and complicity in the violence.

    DFAT assesses communal violence in the Middle Belt region is an enduring security threat to both combatants and civilian inhabitants of the region, which remains at risk of further escalation.

    ‘Race/Nationality’ at 3.1 to 3.6 where it is reported at 3.4 to 3.6 that:

    There is a long history of tension between some ethnic groups, which occasionally results in cases of localised violence. The government’s efforts to address tensions among ethnic groups typically involves heavily concentrated security actions, incorporating police, military and other security services, often in the form of a joint task force.

    In the north-central ‘Middle-Belt’ of the country, land disputes, competition over dwindling resources and settler-indigene tensions have contributed to clashes between herdsmen and farmers. Many international organisations assess, however, that ethnocultural and religious affiliations are incidental rather than integral in these cases.

    DFAT assesses members of ethnic groups who are not indigenous or who are in the minority in the geographic area in which they reside face a moderate risk of official and societal discrimination based on ethnicity. This discrimination may include the denial of access to employment or housing, but is unlikely in most cases to include targeted violence on the grounds of ethnicity alone.

    And ‘Religion’ at 3.11 to 3.23 noting that at 3.12, 3.17, 3.20 to 3.22 it is reported that:

    While there are no official indicators of religious affiliation in Nigeria, most analysts say the population is roughly evenly divided between Muslims and Christians, while approximately 2 per cent belong to other or no religious groups. Many individuals syncretise indigenous animism with Islam or Christianity. The traditional divide between the ‘Muslim North’ and ‘Christian South’ remains, although there are Christian communities in the north of the country and Muslim communities in the south. A mix of Muslims and Christians of various ethnicities comprise the Middle Belt, and major cities remain a fluid mix of different ethnicities and religions. Ethnicity is not necessarily a determinant of religious identity: many ethnic groups include both Muslims and Christians.

    As noted in Recent History, from 1999, sharia Penal Codes and Criminal Procedure Codes were reintroduced in 12 northern states with predominantly Muslim populations (having been abolished under British colonial rule). These are Zamfara, Kano, Sokoto, Katsina, Bauchi, Borno, Jigawa, Kebbi, Yobe, Kaduna, Niger and Gombe states. In some cases, the reintroduction of sharia had the effect of amplifying existing tensions between Muslim and Christian communities (and between Sunni and Shi’a). In some cases, this led to localised protests that resulted in fatalities. DFAT is not aware of any recent examples of major protests or communal violence in northern Nigeria in relation to the existence or practices of sharia courts.

    Despite claiming an Islamist motivation, Boko Haram has regularly committed attacks against both Christian and Muslim religious communities and institutions during its insurgency in the northeast. Person-borne IED attacks have targeted both churches and mosques: according to the Council on Foreign Relations, Boko Haram has destroyed 59 churches and 22 mosques since 2010. In July 2019, the group ambushed and killed 65 persons returning from a funeral in a predominantly Muslim community, while in December 2019 an ISWAP-affiliated faction released a video of them executing 10 Christians and one Muslim to avenge the death of Da’esh leader al-Baghdadi.

    As noted in Security Situation, ongoing conflict between herdsmen (predominantly Muslim Fulani) and farmers (Muslim and Christian) in the Middle Belt has resulted in numerous deaths, injuries and displacements. Multiple Christian NGOs have stated religious identity is a primary driver of the conflict, arguing violence has predominantly targeted Christian communities, religious leaders and churches. In 2019, there were numerous reports by media and religious groups of cases in which attackers of allegedly Fulani ethnicity attacked, killed or kidnapped for ransom priests and other Christian clergy and their families. In August 2019, 200 Catholic priests marched through the streets of Enugu, Enugu state, to protest insecurity and what they characterised as Fulani attacks on Christians. Authorities have stated the cases were criminal acts and not religiously motivated. There have also been cases of attacks or kidnappings involving Muslim religious figures, and cases in which Muslims have been killed or displaced, albeit in lower numbers than Christians.

    While not discounting religious identity as a contributing factor, a number of international and domestic analysts have argued the conflict is multi-dimensional. In addition to religion, analysts cite ethnicity, politics, lack of accountability and access to justice, increasing competition over dwindling land resources, population growth, soil degradation and internal displacement from crime and other forms of violence as drivers contributing to the violence. Several experts have noted armed conflicts in the Sahel and Lake Chad Basin (particularly the Boko Haram insurgency) have altered grazing routes and brought herder groups in contact with new communities, sometimes leading to conflict because they are unaware of pre-existing agreements between the local herding and farming groups. The UN has also noted demographic and ecological pressures have resulted in internal transhumance (movement of livestock) in the Middle Belt in recent years.

    Review hearing – 27 October 2022

1. The Tribunal hearing was conducted at the Brisbane Registry in the English language. The Tribunal explained to the applicants that the hearing would consider the applicants’ application for protection visas afresh. The applicants’ solicitor informed that Tribunal that only the primary applicant would be giving oral evidence and that the applicants were relying on the claims of the primary applicant. The primary applicant when questioned by the Tribunal confirmed that he understood the relevant statutory framework and concepts as to the refugee and complementary protection criterion.

2. The primary applicant adopted both his personal background and his claims (refer to paragraph 22 above) as outlined in the pre-hearing submission of 20 October 2022 as his evidence, the extent of his claims together with the supporting history. His personal background was explained as being:

   • He is a [age deleted] male citizen of Nigeria who was from Kaduna City, Kaduna State, Nigeria. He is of Jaba ethnicity and a Pentecostal Christian.
   • The primary applicant married the secondary applicant [in] 2017. She is a [age deleted] female citizen of Nigeria and also from Kaduna City, Kaduna State, Nigeria. She is of Okun ethnicity and a Pentecostal Christian.
   • The primary applicant completed his West African Senior Secondary Certificate examination at the [College 1] in 2003 in Kaduna City, Kaduna State Nigeria. The applicant then completed his tertiary education, a [course 1] at [University 2] in 2010 in Zaria, Kaduna State, Nigeria.
   • The primary applicant worked from August 2010 to May 2012 for the [Company 1] in Badeggi, Niger State, Nigeria as a[occupation 1]. The applicant then worked from June 2012 to June 2013 for [Company 2]in Barnawa, Kaduna State as an[occupation 2] . The applicant was then employed from July 2013 to May 2014 at the [Company 3]at Lokoja, Kogi State as an[occupation 3]. From February 2014 through to January 2017 the primary applicant returned to [Company 4]in Barnawa, Kaduna State where he worked as the[occupation 4].
   • The primary applicant applied for a student visa, which was granted [in] February 2017 and he arrived in Australia [in]  February 2017. Since arriving in Australia the primary applicant has completed a Graduate Certificate in [University, 2] 2017, a Master’s in [course 2]at[University 3], in 2019, and a Diploma of Community Services at Distance Colleges in 2022.
   • The primary applicant is currently working for [Company 5], Brisbane, [occupation 5]. He has been in this position since September 2022. Prior to his current position the primary applicant worked as a [occupation 6] from July 2021 to September 2022 and as a [occupation 7]from August 2019 to July 2021.
   • The primary applicant lodged a protection visa application on 20 February 2019.
   • On 5 June 2020 primary applicant’s protection visa was refused by a Delegate for the Minister.
   • The applicants now have a child together named[name delated], who was born in Australia on [DOB deleted].

3. The primary applicant’s evidence to the Tribunal including his reply to questioning from the Tribunal was (in summary) that:

   ·His mother and three siblings still reside in Nigeria. His mother who is in her 60s and a retired [occupation 8] resides in the family home with his younger sister who is a [occupation 9] and works remotely from the family home in[Village 2]. His brother who is a [occupation 10] works and resides in Katsina State which has a common border with Kaduna State. His other sister is a [occupation 11] and has a child, she is presently a full-time housewife, and her husband is also a [occupation 12]in practice and they live in Kaduna State.

   ·He explained that the family had a family home in Kaduna since 1997 but only moved into the home in 2000 during the sharia crisis. He explained his family left their farm and moved to [Village 2] to avoid the ethnic and religious violence in the ‘Middle Belt’ of Nigeria. He said that all of his family were practising Pentecostal Christians.

   ·In response to the Tribunal’s questions, he said that no members of his family had been the subject of any religious or ethnic motivated physical harm or threats previously or since he had left Nigeria. He explained that his family continued to go to church and had been able to do so without incident but that there had been a church bombing near to the family home several years ago, although that was not the church that his family attends.

   ·He explained that he had a different level of commitment to his religion from that of his family which moved beyond attendance and involved his participation in the management of the church together with preaching the church’s doctrine, fundraising, and community outreach preaching and religious work.

   ·He explained that the family had relocated to Kaduna city due to the attacks upon farms and churches in the [location deleted]of Kaduna State in the ‘Middle Belt’ of Nigeria by the Fulani Muslim Migratory Herdsmen. He agreed when questioned by the Tribunal that the Herdsmen had also attacked Muslim farms and that Country Information suggested that their attacks were predominantly motivated by securing land for their traditional migratory herding. The primary applicant in reply to the Country Information indicated that it was his view that the Herdsmen were in an alliance with Boko Haram and their splinter groups, and although they did attack some Muslim farms those Muslims were viewed as moderates and that the Herdsmen were seeking to cleanse the ‘Middle Belt’ and install a Shari system to the area.

   ·He explained his fears for his safety arose from his experiences as a young child and that he had suffered psychological harm as far back as his childhood due to the religious violence in the farming areas of the ‘Middle Belt’. In this regard he relied upon his recollection of being a seven-year-old child when Muslims killed a friend of his and his friend’s father. These attacks and killings resulted in his family having to seek safety at a nearby military barracks. It was this incident and others which ultimately caused his family to relocate from[Village 1], Kaduna State to[Village 2], Kaduna State during the shariah crisis.

   ·Under questioning as to his psychological harm, he informed the Tribunal that he has never sought any medical and/or other psychological treatment, diagnosis, counselling and/or other professional assistance. He explained he has addressed such harm through his religion and involvement with his church. He further confirmed that he has not received any counselling either within the church or elsewhere and he was unable to provide the Tribunal with any independent reports, letters or testimonials as to his psychological trauma and harm.

   ·He also explained that he believed he was in danger of harm due to his Jaba ethnic background given the Herdsmen in his view were not just motivated in removing the farms from the ‘Middle Belt’ but also pursuing like Boko Haram and Islamic State within the farming region of the ‘Middle Belt’. When questioned as to the Country Information which suggest that the Boko Haram are largely restricted in their operations to the north-east of Nigeria, he explained as he had earlier stated that he believed that there were splinter groups and auxiliary groups of Boko Haram that were operating with the Herdsmen in the ‘Middle Belt’ to secure an Islamic state.

   ·He believes that if he was to return to Nigeria he would likely obtain employment with the health services and his employment history and recent qualifications would likely lead him to employment in Kaduna State conducting [information deleted] services. Given his religious commitments to his church he explained that he would also be expected to and would want to be involved in outreach religious services including preaching his church’s gospel and doctrine in the rural areas of Kaduna State. In this regard the Tribunal queried the primary applicant as to whether he could modify his behaviour and restrict both his work and religious activities to the urban centres of Kaduna State such as [in Village 2]. The primary applicant explained that he was committed to his church and that his religion was who he was and as a Pentecostal Christian he had an obligation to preach the gospel and conduct outreach church visits. Further he explained that given his past employment and educational qualifications he would likely be involved in health work requiring him to conduct outreach [services] which would see him visiting the ‘Middle Belt’ farming areas. It is these areas, his former farming homeland, where he says the Muslim Herdsmen are active and is where he will be at risk due to both his Christian religious beliefs and preaching, and his Jaba ethnicity.

   ·In reply to the Tribunal’s query as to whether he and his family had experienced any direct violence whilst they were farming in the ‘Middle Belt’ or when he had worked in that area and nearby prior to travelling to Australia, he again agreed that neither himself or his family had been the subject of any direct violence and/or threats aimed directly at them. He indicated that he was not aware of any recent nearby attacks but did know of an attack on a Christian church by the Herdsmen in 2014 in [a] area. He again explained that the Herdsmen were not just after the farms in the ‘Belt’ as they are Jihadist Militia and wish to take over the farmland to create a Muslim state. He explained that they have a policy of ‘if it’s not your land it’s your body’ and that they are attacking not just for the land but to also get rid of the people from the ‘Middle Belt’.

4. The Tribunal in discussing Country Information as outlined above at paragraph 24 provided a copy of that information to the applicants and their solicitor and adjourned the hearing to allow the applicants the opportunity to review the information and provide a response and/or any comments. After such adjournment the applicants’ solicitor indicated that as to this information the primary applicant wished to inform the Tribunal that:

   ·As to ‘Security Situation’; that the instability is increasing and there are multiple issues that impact on security. As to harm and the numbers of deaths, Kaduna is one of the areas listed in the information and there are deaths occurring all over the country.

   ·In relation to ‘Boko Haram’; through sub-groups and the Herdsmen they do have influence in the ‘Belt’.

   ·In reply to the information as to ‘Communal Violence in the Middle Belt region’; as already identified Boko Haram do have influence and there are multi-faceted, ethnic, Muslim extremist and moderate Muslim influences and motivations.

   FINDINGS AND REASONS

5. The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicants meet the criteria for the grant of a protection visa.

   Country of reference

6. According to the protection visa application, the applicants claim to be citizens of Nigeria and provided copies of their passports, based on this material the Tribunal finds that the applicants are who they say they are, and nationals of Nigeria. Nigeria is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.

7. The applicants in their pre-hearing submission of 20 October 2022 provided the Tribunal with their marriage certificate, see paragraph 22 above. Based on this certificate and the evidence of the primary applicant the Tribunal is satisfied that the secondary applicant is a member of the primary applicant’s family unit as defined in s 5(1) of the Act.

   Analysis

8. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

9. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[3] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[4] This is consistent with the established proposition that it is for the applicant to make his or her own case.[5]

   [3] Section 5AAA of the Act.

   [4] Ibid (with effect from 14 April 2015).

   [5] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

10. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

11. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[6] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[7]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

    [6] Fox v Percy (2003) 214 CLR 118.

    [7] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

12. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which provides useful guidance for this Tribunal.

    [8] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).

    [10] UNHCR, re-issued February 2019 at [203]–[204].

13. The Tribunal found the primary applicant to be cooperative, responsive and an honest witness. However, for the reasons identified below the Tribunal finds that the fears held by the primary applicant are personal and subjective fears not supported by Country Information and generally not reasonably held by the primary applicant given the overall personal circumstances of the primary applicant, his family in Nigeria and their experiences over time together with the available relevant Country Information.

14. The primary applicant’s claims relate to his fear of being killed by Boko Haram or the Muslim Fulani Herdsmen in their attacks on Christians in the communities of Southern Kaduna. The Tribunal has considered the relevant Country Information as outlined above together with the applicant’s document ‘Coming to Australia’ (refer paragraph 16 above) and it’s referenced Country Information which accompanied the visa application together with the applicant’s submissions and evidence. In this regard the Tribunal has preferred the independent DFAT Country Information. Although Country Information identifies that the Herdsmen do pose a threat to Christian Farmers in the ‘Middle Belt’ it is reported that their attacks are not just religious in nature but for the most part, they appear to be motivated by seeking to reclaim land in the ‘Middle Belt’. Given the primary applicant’s evidence that he would if he returns to Nigeria live and work in the health sector of Nigeria in or about Kaduna State and that his family having abandoned farming; the Tribunal does not accept that he faces a real chance of serious harm from the Muslim Fulani Herdsmen. Given this Country Information identifies that the attacks in this area are motivated by land more so than religion and Muslim farmers have also been attacked, the Tribunal finds that the applicant does not face a real chance of serious harm by way of being the subject of actual physical violence, being psychologically harmed through intimidation from Muslim extremists, or having his religious worship being deprived or being killed due to his religious and/or ethnic background. The Tribunal though accepts that the primary applicant has a subjective fear of harm from this and other Muslim groups which in part arises from his family’s experiences when they were farming in Kaduna State. However, given his brother and sisters together with his mother have not been the subject of any religious or ethnic related threats and/or violence since they abandoned farming and that they have in the case of his brother and one of his sisters been able to pursue their respective careers in [occupation 10 and 11] the primary applicant’s fears are not supported by the relevant available Country Information or the actual experiences of his family who have remained in Nigeria. It is also noted that his mother and one of his sisters still reside in the family home and have so resided there since relocating from their farm in 2000. The Tribunal also notes that the applicant’s claims include a fear of being killed or attacked when he attends a church in Nigeria and in his evidence, he referred to a church bombing near the family home several years ago. In this regard and with reference to the Country Information as outlined above which provides that although religious identity can be a contributing factor in violence in the ‘Middle Belt’ including Kaduna State the motivation for this violence has been assessed by a number of international and domestic analysts as being driven by multi-dimensional factors including political, ethnic, justice related, and competition over land resources motivations. Therefore, the Tribunal rejects the applicant’s claims as to his fear of being killed or attacked when he attends a Nigerian church. The Tribunal finds on the evidence before it that this fear is not well-founded.

15. As to the primary applicant’s fears relating to Boko Haram and although the Tribunal accepts that the primary applicant both through his likely healthcare work and through his church involvement would be involved in regional [health care] and promoting the Pentecostal gospel, The Tribunal does not find that if the primary applicant was to conduct [health care work] for  or other government or non-government [health care organisations]preaching for the Pentecostal church that the primary applicant would face a real chance of serious harm arising from his ethnic background and/or his religious beliefs and practices in Kaduna State and/or the ‘Middle Belt’ or other areas of Nigeria other than the north-east of Nigeria where Boko Haram have been operating and can be viewed as being in control . However, notwithstanding the primary applicant’s evidence that splinter or affiliate groups of Boko Haram are conducting attacks on Christians in Kaduna and throughout other areas of the ‘Middle Belt’ of Nigeria and working with the Herdsmen to ethnically and religiously cleanse these areas and create a Muslim state; the Tribunal is not satisfied that Boko Haram is actively involved in attacks on Christians in Kaduna State and/or throughout the ‘Middle Belt’ of Nigeria. In that regard the Tribunal notes that Boko Haram’s activities are largely contained in the north-east of Nigeria and there was no evidence placed before the Tribunal to suggest that the primary applicant would be involved [in] healthcare and/or religious activities in the north-east of Nigeria.

1. As to the primary applicant’s claims relating to his past and present psychological harm the Tribunal notes that the primary applicant has never sought or received any professional psychological and/or psychiatric intervention, assessment, diagnosis, treatment or counselling. Notwithstanding the primary applicant’s evidence that he has addressed and/or managed this harm through his religion and with the Pentecostal Church no independent evidence was presented to the Tribunal as to the nature and extent of this harm. Further, although the primary applicant did discuss that he managed this harm through his religion there was no evidence presented as to how this harm manifests and exactly how he addresses and/or manages this harm through his religion. The Tribunal finds this claim to be vague and without detail but having found the primary applicant to be a credible witness accepts that he has suffered some harm in this regard but given the lack of detail and any independent professional assessments and/or advice the Tribunal places little weight on his claims of ongoing psychological harm arising from fears of returning to Nigeria and being the subject of religious and/or ethnic persecution and does not accept that these psychological issues increase the applicant’s risk of harm for any of the reasons claimed.

2. The Tribunal finds that notwithstanding the subjective fears of harm held by the applicant there is no real chance that the applicant would suffer serious harm if he was to return to Nigeria and as such the Tribunal finds that the primary applicant’s fear as to ethnic and/or religious persecution is not well-founded.

   Refugee criterion – s 36(2)(a) of the Act

3. Based on the information before it, the Tribunal having considered all of the primary applicant’s claims both individually and cumulatively, and considering the cumulative effect of the primary applicant’s claims finds that the primary applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the primary applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the primary applicant is not a refugee within the definition of s 5H of the Act.

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

   Complementary protection – s 36(2)(aa)

5. Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the primary applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.

6. As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to Nigeria, that there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.

7. The Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

   Additional findings

8. Additionally, there is no suggestion that the primary applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36 (2)(a) or (aa) of the Act and who holds a protection visa.

9. As the Tribunal has found that the primary applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa),

   the secondary applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act, as she is not a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application and therefore the secondary applicant does not engage Australia’s protection obligations under

   
   

   s 36(2)(a) or s 36(2)(aa) of the Act.

10. As the Tribunal has found that the applicants do not meet the refugee and complementary criterions and do not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicants have a right to enter and reside in a country other than Nigeria.

    MINISTERIAL INTERVENTION

11. The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under s 417 of the act. The guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning ministerial intervention provides as a relevant factor, ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’.

12. In this regard, the Tribunal acknowledges the personal circumstances of the primary applicant including his marriage to the secondary applicant in Australia and the birth of their child on [DOB deleted] in Australia. The Tribunal notes that the primary applicant is an educated man with tertiary qualifications and a positive work history in Australia including post graduate qualifications [in health care  ]and current employment in a management role in [health care services].

13. When considering all of the applicant’s circumstances the Tribunal considers it appropriate to support the applicant’s request to remain in Australia on a permanent basis so as he may continue in his employment and contribute to Australia’s health [care] services. In considering the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM 3 ‘Ministers guidelines on Ministerial powers: ss 351, 417, 501J of the Act, and noting that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the minister thinks that it is in the public interest to do so. The Tribunal considers that the circumstances of the primary applicant’s case raise ‘unique or exceptional circumstances’ that justify possible intervention by the Minister. Such circumstances are:

    ·Compassionate circumstances regarding the psychological state of the primary applicant. That being his history of psychological trauma although never diagnosed or treated arising from his fears of ethnic and religious harm due to his family’s Christian and farming background in Kaduna State. This fear and trauma arise from the primary applicant’s experience of having to flee the family farm and seek refuge at an army barracks and the accompanying death of his friend and his friend’s father when he was seven years of age.

    ·Exceptional, economic, scientific, cultural or other benefit that would result from the person being permitted to remain in Australia. The primary applicant has a work history and has obtained specialist post graduate qualifications and work experience in [health] care and the management of such services. These services are critical to the Australian community and presently the Tribunal understands that there are severe work-related vacancies in this area in which the primary applicant is both qualified and has relevant work experience.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants protection visas.

    David James
    Senior Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country, in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …