2012734 (Refugee)

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to fear persecution if returned to Nigeria due to a serious medical condition requiring a transplant and ongoing treatment. The applicant asserted that adequate medical facilities and treatment were unavailable in Nigeria, that he could not afford the necessary care there, and that he was aware of others who had died from similar conditions. The Tribunal also noted that the applicant had been unable to continue his previous employment and was experiencing homelessness.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. This involved assessing both the subjective fear of the applicant and the objective likelihood of persecution, with "persecution" being understood to encompass serious harm, including significant economic hardship that threatens a person's capacity to subsist, or denial of access to basic services where such denial threatens subsistence. The Tribunal also considered the complementary protection criterion under section 36(2)(aa), which applies if there is a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.

The Tribunal applied the established legal principles for assessing well-founded fear of persecution, referencing *Chan Yee Kin v MIEA* (1989) 169 CLR 379 regarding the meaning of a "real chance" and *Applicant A v MIEA* (1997) 190 CLR 225 at 258 concerning the broad scope of what constitutes persecution. While acknowledging the applicant's serious medical condition and his fear of inadequate treatment in Nigeria, the Tribunal found that the applicant had not established that he would face persecution for a Convention reason. The Tribunal also considered Ministerial Direction No. 84 and relevant guidelines.

Despite affirming the decision not to grant the protection visa, the Tribunal concluded that the applicant's circumstances, particularly concerning his health, warranted referral to the Department for consideration by the Minister under the Minister's discretionary power pursuant to section 417 of the *Migration Act 1958* (Cth). The Tribunal therefore affirmed the decision under review but recommended the case be brought to the Minister's attention.