2320859 (Refugee) - [2025] ARTA 1716

2320859 (Refugee) [2025] ARTA 1716 (3 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2320859
Tribunal:General Member A Goodier
Date:3 July 2025

Place:Perth
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 applicant satisfies 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 03 July 2025 at 4:37pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – Federal Circuit and Family Court remittal – political opinion – against military-led government – particular social group – foreigners in The Bahamas – supports Biafra movement for independence – protests – detained and house raided – married Bahamian woman – foreign national living in The Bahamas – racism – xenophobia – targeted and attacked for being a foreigner of African descent – high crime rate – shot during armed workplace robbery, attempted car break-in, home invasion – Nigerians can move into other ECOWAS countries – security situation unstable in many parts of ECOWAS region – fears harm for imputed wealth – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
V856/00A v MIMA (2001) 114 FCR 408
WAKK v MIMIA [2005] FCAFC 225
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 Immigration and Multicultural Affairs on 21 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 3 September 2017, the applicants applied for a review of the delegate’s decision, and, on 4 March 2022, a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision.
[In] April 2022, the applicants applied to the Federal Circuit Court of Australia for a review of the first Tribunal’s decision. On 9 November 2023, the Court remitted the matter to the Tribunal to be reconsidered in accordance with the law. The matter is now before the Tribunal pursuant to an order of the Court.
The first named applicant who claims to be a national of Nigeria, applied for the visa on 30 November 2016. The second named applicant claims to be a national of the Bahamas. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicants faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act in Nigeria or the Bahamas. The delegate also did not accept that there was a real risk the applicants would face significant harm for any reason on their return to Nigeria or the Bahamas.
The applicants appeared before the Tribunal on 2 April 2025 to give evidence and present arguments. The applicants were given time following the hearing to provide further submissions and evidence in support of their claims.
The applicants were represented in relation to the review.
BACKGROUND
Evidence before the Department
In his protection visa application, the first named applicant indicated he was born in Lagos, Nigeria in [year]. Both parents are citizens of Nigeria, as is he. He speaks, reads, and writes English and Yoruba. His ethnic group is Yoruba and religion Christian. His current occupation is [Occupation 1]. He was married in May 2001 to the second named applicant in [City 1], Bahamas. The first named applicant indicates his biological parents reside in [Country 1], [one] brother and family reside in Australia, [another] brother and family reside in [Country 1], [one] sister and family in [Country 2] and [another] sister and family in Australia. He is in regular contact with his family who live overseas. The first named applicant legally left Nigeria as the holder of a valid passport issued by the Nigerian authorities. He entered Australia as a dependent on the second named applicant’s student visa in January 2015.
The first named applicant indicates he left Nigeria in late 1995 and studied [Area of study 1] in [Country 3] for about three years before moving to the Bahamas in 1998. He has travelled to [Country 2] and [Country 4]. The first named applicant studied in Nigeria, [Country 3], and the Bahamas. He was employed as [an Occupation 2] in The Bahamas as well as [an Occupation 3]. In Australia he has been employed as [an Occupation 1] as well as volunteered with various community [groups].
The second named applicant indicates she was born in [City 1], Bahamas in [year] and is a citizen of the Bahamas as are her parents. She speaks, reads, and writes English. She belongs to the African/Caribbean ethnic group and her religion is Christian. Her father, sister, and family as well as her two sons reside in the Bahamas. She is in regular contact with her family overseas. She arrived in Australia as the holder of a visitor visa in June 2012 with her two children. She departed the Bahamas legally holding a valid passport and entered Australia on a valid visa. She applied and was granted a student visa after her arrival in Australia. She travelled to Australia to visit family and has travelled to [Country 2] to visit family. She studied [Area of study 2] in Australia and has been employed in providing [specific] services. In the Bahamas she has worked in [specified role].
The second named applicant made no claims of her own and relies on the claims of the first named applicant.
The first named applicant submitted a statutory declaration setting out his claims. He fears returning to Nigeria and the Bahamas. He has lived in the Bahamas with his wife since 1998. In June 2011 while at work at [Workplace 1], an armed man entered the premises and demanded money from him. The man screamed at him that “all foreigners deserve to die” and pulled the trigger, shooting [him]. He believes the person was arrested but it is common in the Bahamas for perpetrators to kill their victims to do away with vital evidence and he is fearful for his life. Around mid-2012 his family were attacked in their house. The matter was reported to the police, but nothing happened. In 2013 he surprised someone breaking into his car and a verbal confrontation ensued with the person telling him that “he came by plane; you will leave in a bag”. He is targeted because he is a foreigner and attacks on foreigners mean nothing to the police. He is unable to return to the Bahamas due to the attacks on foreigners.
The first named applicant submitted that he is unable to return to Nigeria as he took part in demonstrations against the military led government of Sani Abacha advocating for human rights and pro-democracy. He was also part of the human rights advocates for the Ogoni people for the destruction of their land for oil exploration and production. He also advocated for the Biafra people as his mother’s family are from Biafra. He was in his twenties at the time and strong and energetic. In 1994 he was detained. In 1995 he joined a peaceful demonstration in Port Harcourt and on his return home, his house was raided. He managed to evade capture and moved to [Town 1] Ogun State. He, with friends, organised a demonstration that was cancelled at the last moment. He was informed he was being watched so hid at his uncle’s home. His uncle then organised his departure from Nigeria. He returned home in 2003 but felt threatened and went into hiding. His home was raided by security and his family assisted him to depart Nigeria. He is unable to return to Nigeria as the government is still targeting those involved in the Biafra movement.
The applicants’ representative provided a submission which repeated the first named applicant’s evidence from his statutory declaration. Articles referring to violence in the Bahamas were provided referring to foreigners being attacked as well as the USA issuing a warning on the escalating crime in the Bahamas and attacks on tourists.
A further submission was provided after the applicants’ interview with the delegate. It refers to a recent referendum on the ability of men who marry Bahamian women to become citizens as evidence of the hatred of foreign men in that country. It refers to the lack of police protection in the Bahamas.
Provided in support of the application were photographs of the injury suffered by the first named applicant in June 2011 when he was shot. A police report attesting to a break in at the family home in June 2012 and confirming the assault on the first named applicant in June 2011 was provided.
The applicants were invited and attended an interview with the delegate to expand on their claims. The delegate refused to grant the visas to the applicants on the basis that the first named applicant, as a Nigerian citizen, could access statutory effective protection in a safe third country, specifically Ghana, as set out in s.36(3), as Nigeria is one of the 15 member countries (along with Ghana) of the Economic Community of West African States (ECOWAS). In reaching this conclusion the delegate found that, considering the delay in the first named applicant submitting a protection visa application, he was not involved with the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and therefore was not of sufficient interest to the Nigerian authorities for them to share his details with other ECOWAS countries.
The first Tribunal considered the application for protection and was satisfied that the first named applicant engaged in political protests in1990 to 1995 as claimed. The first Tribunal considered the first named applicant had embellished his claims in relation to his return visit in 2003. However, the first Tribunal noted the first named applicant had continued to provide financial support to MASSOB while in the Bahamas and Australia and continued to actively support IPOB while in Australia. The first Tribunal found that the first named applicant would continue his activities if returned to Nigeria and therefore faced a real chance of serious harm if returned to that country.
The first Tribunal did not accept the first named applicant faced harm for any of the refugee reasons if return to the Bahamas and did not accept there was anything in that would cause him to be specifically targeted and harmed because of generalised violence. The first Tribunal found that the first named applicant has a right to enter and reside in the Bahamas.
Evidence before the Tribunal
The first named applicant’s then representative provided a submission to the first Tribunal in support of his claims. Also provided was a copy of his membership card for IPOB. It was submitted the first named applicant as a member of firstly MASSOB then IPOB, he would face serious harm if returned to Nigeria for a refugee reason. Evidence was also provided of his donations to IPOB since his departure from Nigeria. It was also submitted he is unable to return to the Bahamas as the people in The Bahamas are racially motivated, hate foreigners, particularly Africans and people of high repute and politicians are the worst offenders.
Submissions were made to this Tribunal in support of the first named applicant’s claims for protection. The submission refers to the attack on the second named applicant and children in mid-2012 when armed men broke into their home. The matter was reported to police, but no further update was provided. In June 2011 while the first named applicant was working at the [Workplace 1], a gunman entered the premises and shouted, “such foreigners deserve to die” and shot the first named [applicant]. Sometime in 2013 a man broke into the first named applicant’s car and when confronted by the first named applicant responded, “you came by plane you will leave in a bag”. The matter was reported to the police, but he has heard nothing from them. The first named applicant was fed up being targeted as a foreigner and entrepreneur because of the high level of xenophobia in the Bahamas, he decided to join his wife and children in Australia. The submission referred to country information relating to the treatment of members of IPOB in Nigeria.
The submission referred to a speech made on 16 January 2025 by the Bahamian Prime Minister at the Violence Prevention Forum 2025 where he refers to violence in the Bahamas and across the Caribbean as being a profound public health challenge in that it touches every part of society. It was submitted that there is a threat to foreigners, particularly Haitians and Nigerians. The submission refers to comments by a prior Prime Minster who left office in 2021 as having inflamed xenophobic behaviour. The submissions refer to Nigerians suffering xenophobic attacks throughout the world and in cases the first named applicant has been mistaken for a Haitian. Due to the first named applicant’s creative and entrepreneurial activities, some Bahamian’s became resentful. The first named applicant is now [an activity] and if he returns to the Bahamas would be at greater risk than the general population.
The following articles were provided:
·A copy of the speech made on 16 January 2025 by the Bahamian Prime Minister at the Violence Prevention Forum 2025 was provided. The speech refers the establishment of the Protection Against Violence Commission and efforts that are being made to combat violence throughout the country.
·A news article dated 4 November 2022 from The Tribune was provided calling for an end to xenophobia in the country following news that new recruits in the department of immigration were Bahamians of Haitian descent.
·An article from the [named newspaper] dated [October] 2019, updated [in] October 2023 headed “[article title]” was provided referring to comments by the Attorney General indicating work permit holders should go home if their place of employment was destroyed in hurricane Dorian. The article considers these comments inappropriate and not reflective of the country and refers to the assistance of other countries following the disaster. The article also refers to comments by other Cabinet Ministers indicating that everyone was being assisted without reference to the status in the country. The article refers to the deportation of undocumented persons.
·A news article from The Tribune dated 9 June 2020 calling on Bahamians to abandon their xenophobic attitude towards foreign investors if the country is to recover following the financial devastation of COVID was provided. The article refers to allowing investors to buy Bahamian debt in US dollars and overseas companies to bring in much needed US dollars. This article is also referred to in the submission as evidence of xenophobic behaviour and attitudes in the Bahamas.
·An article from the [named newspaper] dated [February] 2020 updated [in] October 2023 headed “[article title]” was provided. The article refers to comments by a prior Prime Minister as well as actions taken on illegal migration and efforts to keep out criminals. It refers to migration of illegal immigrants from Haiti.
·An article from the Tribune dated 17 December 2014 on the treatment of Haitian migrants in the Bahamas was provided. The article refers to black Bahamians being interpreted to being Haitian and subjected to the treatment Haitians are subjected to.
·Dated articles were also provided referring to Haitians in the Bahamas, the decision of the Bahamas not to assist Haiti following the 2018 earthquake and efforts to stop the flow of illegal Haitians entering the Bahamas.
At hearing the applicant expanded on his activities as a member of IPOB, particularly in the last few years. He remains an active supporter and would continue with his IPOB activities and support if returned to Nigeria. He demonstrated a continued awareness of recent developments.
The Tribunal indicated that it accepted the evidence provided that he was attacked and shot in 2011 in the Bahamas, he stopped an attempted burglary of his car, and his house was burgled with his wife and children present in the family home. The applicant told the Tribunal that he is still receiving counselling after his attack.
The applicant told the Tribunal that as the Bahamas was a tourist destination and the country relied on the income from tourists, the media made little mention of the crime rates and attacks on foreigners. Xenophobic attacks on people like him were not publicised. The applicant submitted that foreigners and businesspeople like him are targeted for harm but as the Bahamas relies on money from tourism, the attacks are not made public.
The applicant referred to reports of people burning down a whole village in the Bahamas because the people there were not Bahamians. The Tribunal responded that the reports refer to the Bahamas Government removing illegal migrants and bulldozing their housing.
The applicant told the Tribunal that the locals unfairly target him saying that “you have come here to take from us, the opportunities and our women”. Young people have guns in the Bahamas, not like Australia. His friend was shot, and they then went after his friend’s wife and shot her. There was an incident with a Chinese man being shot and the Chinese Embassy told the Government that had to stop foreigners being targeted. The Tribunal referred to the news article[1] and indicted that the Chinese Embassy actually spoke against violence in the community generally, urging the Bahamian Government to take further measures to protect people, including the locals and foreigners.
[1] Article provided by the applicant: The Tribune dated 21 March 2019 by Morgan Adderley, Tribune Staff Reporter.
The applicant claimed that the police do little to protect him and have done nothing to follow up on his shooting. He claimed that they will not protect him because of his name and even his wife cannot obtain protection because of her name. The applicant claims they are clearly identified by their name as foreign, and the police will not help.
The Tribunal referred to country information indicating the Bahamas had an effective police force and he should be able to obtain protection from them.[2]
[2] OSCA Country Security Report. The Bahamas; US Overseas Security Advisory Council; 15 April 2024; Crime situation, including organized crime; organized crime groups and gangs active in the country; police and state response, including effectiveness; state protection for witnesses and victims of crime (2021–September 2023), Immigration and Refugee Board of Canada, 7 September 2023; UN Human Rights Council, The Bahamas Report, 7 March 2023.
The applicant told the Tribunal there were not many police in the Bahamas, unlike in Australia, there is no police protection despite what the country information says.
The applicant claims that the moment he opens his mouth and speaks, people know he is not local, and it is a danger for him.
The applicant confirmed he no longer owned businesses in the Bahamas. He is currently employed as [an Occupation 1]. He told the Tribunal he is passionate about [his business] work and is currently working on [it]. If he returned to the Bahamas, he would continue with his passion and would continue with his [business].

The applicant referred to travel advisories from Australia and the USA referring to the Bahamas being violent with attacks on people. The Tribunal indicated that the travel advisories were focussed on travellers to the Bahamas rather than the local population. The Australia travel advice warned: Exercise a high degree of caution in The Bahamas due to the threat of violent crime[3]. The USA travel advice warns to increase caution due to crime.[4]
[3] updated 4 February 2025.
[4] The Bahamas Travel Advisory, travel.state.gov/content/travel/en/traveladvisories/traveladvisories/the-bahamas-travel-advisory; updated 31 March 2025.
The Tribunal indicated that there was nothing in the country information that supported his claim that as a foreigner, he was targeted for violence over and above the general population in the Bahamas. There was one old article prior to his departure from the Bahamas that referred to black Africans as being inaccurately identified as Haitians and targeted. The Tribunal referred to the many reports that indicate Haitians are unfairly targeted and blamed in the Bahamas for taking local jobs and resources that should be for the locals.
The Tribunal indicated it acknowledged the posts and articles provided but it relied on country information provided by reputable agencies such as Amnesty International and Human Rights Watch.[5] These make no reference to any targeted attacks on black Africans or xenophobia against black Africans and apart from a 2014 post, there was no country information to support the submission that as a black African he was targeted as part of the xenophobia in the Bahamas.
[5] The Tribunal also searched European Country of Origin Information Network, Freedom House, US Department of Sate Human Rights, Canada Immigration & Refugee Board Country of origin Information.
The representative submitted that the applicant looks like a Haitian and therefore subject to targeted attacks.
Following the hearing further submissions were provided by the applicant. The submissions provided other evidence in support of the first named applicant’s activities with IPOB in Australia as well as submissions addressing xenophobic issues in the Bahamas. It was submitted that there is a notable underreporting of xenophobic events in the Bahamas, and this could be attributed to a number of factors. The IOM in collaboration with the Bahamas Information Services held a one-day training program for journalists and others on migration issues and to hone the reporting skills of journalists in the area covering migration issues in the region. The submission refers anti-Haitian sentiment as the most obvious form of xenophobia in the Bahamas. It refers to being black and foreign, primarily Haitian, does put someone in danger in the Bahamas as the danger is real for foreigners of African decent who are not Bahamian as they are sometimes collateral damage, and this is what happened to the applicant when he was shot in 2011.
The submission refers to a number of articles:
·Bahamas Journalists trained to Report on Migration from IOM and Seasoned Caribbean Journalist, news article June 2024;
·How Attacks on Haitian Immigrants Endanger All Black people, AfroSapiophile, September 2024;
·Press Briefing Note on Bahamas, October 2019, referring to concerns by the UN over the deportation of Haitian migrants following Hurricane Dorian;
·Mitchell accuses Minnis of Fear Mongering on Haiti, [named newspaper], April 2024;
·Haitian Crisis: Let’s Change Our Attitude towards Our Caribbean brothers and Sister, article published March 2024;
·Case Study: Preventing and Resolving Conflict Between Bahamian Nationals and the Haitian Diaspora that Reside in the Bahamas, International Journal of Law and public Administration, Volume 1, No. 2, December 2018;
·The Haitian Community in the Bahamas were hardest hit by Hurricane Dorian. Now anti-Haitianism threatens to hit harder, article published October 2019;
·Invasion from the South: Social Construction of the Haitian “Other” in the Bahamas, Charmane M Perry, Doctoral Student, Department of Africology, University of Wisconsin-Milwaukee, 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
REASONS AND FINDINGS
Country of nationality
On the basis of the copies of their passports submitted to the Department, the Tribunal accepts that the first named applicant is a citizen of Nigeria, and the second named applicant is a citizen of The Bahamas, and that their identities are as claimed. The Tribunal accepts that Nigeria is the first named applicant’s receiving country for refugee criterion purposes and for complementary protection purposes and The Bahamas is the second named applicant’s receiving country for refugee criterion purposes and for complementary protection purposes.
The issue in this case is whether the applicant is 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.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Do the applicants satisfy the refugee criterion for protection?
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[6] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact 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 the statutory elements are made out.
[6] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[7]
[7] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any, or all the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]
[8] MIMA v Rajalingam (1999) 93 FCR 220.
[9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal accepts that the first named applicant is of Yoruba ethnicity and is Christian. The Tribunal accepts the first named applicant’s evidence his mother’s family are from Biafra.
The Tribunal has carefully considered the first named applicant’s written evidence, evidence to the delegate, evidence to the first Tribunal and the evidence provided to this Tribunal. The Tribunal found the first named applicant’s overall evidence as to his involvement with MASSOB and IPOB consistent and credible. While there were some concerns over his continued involvement with IPOB in recent years, the first named applicant was able to satisfy the Tribunal that he had maintained his interest and involvement and if returned to Nigeria, would continue his involvement and support of IPOB and Biafran independence.
Having carefully considered the available evidence, the Tribunal is satisfied that the first named applicant engaged in political protest activities in the period from 1990-1995. The Tribunal accepts the first named applicant’s evidence that he supported calls for greater self-determination (in the form of an independent Biafran state) for the Igbo majority located in the southeast of the country. The Tribunal accepts the first named applicant’s evidence that he fled Nigeria in 1995, at a time when there was a repressive military government in place, because he feared for his safety because of his protest activities.
The Tribunal accepts the evidence that the first named applicant has provided financial support to MASSOB while in The Bahamas and in Australia and continues to be part of a small group of IPOB [supporters]. The Tribunal accepts that the first named applicant was involved in a Zoom meeting with IPOB leader Nnamdi Kanu in June 2021, shortly before Kanu’s arrest. The Tribunal finds this reflects the first named applicant’s long-standing commitment to the pro-Biafran cause and therefore does not consider his activities in Australia were engaged in simply for the purpose of strengthening his claims to be a refugee.
The Tribunal accepts that, were he to return to Nigeria, the applicant would continue to support IPOB and the Biafran secessionist movement.
The current DFAT Country Information Report on Nigeria includes the following information regarding Biafra, the Biafra conflict and the Biafran secessionist movement:[10]
- Nigeria fought a civil war from 1967 to 1970 against a secessionist movement in the southeast that titled itself the Republic of Biafra. The war came after coups and countercoups around the central government, followed by a pogrom in which an estimated 30,000 Igbo were killed in the north, causing over a million people to flee into the east. While the exact number is unknown, most estimate the number of civilian deaths caused by the conflict to be 2-3 million, mostly due to famine.
- Targeted re-engineering of the country occurred in the immediate aftermath of the Biafra conflict, aimed at preventing any further attempts at secession and encouraging national unity and peaceful coexistence among Nigeria's more than 250 ethnic identities. These moves included greater federalisation, including through the creation of additional states, and the introduction of constitutional diversity requirements to prevent both monopolisation of leadership, and economic and political exclusion. Informal ethnic quotas and arrangements continue to seek to maintain ethnic and religious harmony.
- Despite these moves to encourage greater national unity, there has never been a national reckoning or dialogue in relation to the issues that led to the Biafra conflict, which is not officially commemorated. According to observers, many in the southeast report feeling ongoing resentment at the lack of action to resolve issues emanating from the conflict and from their perceived ongoing marginalisation in national life. Such feelings have reportedly grown stronger in the years since President Buhari came to power, with many of his major political and military appointments tending to favour individuals from the north. As a result, in recent years there has been a noticeable resurgence of calls from the southeast for greater self-determination in the form of an independent Biafran state.
- While there are a number of Biafran secessionist movements, the two most prominent are the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB) and the Indigenous People of Biafra (IPOB). Both MASSOB and IPOB draw their support predominantly from the Igbo speaking southeast states of Abia, Anambra, Ebonyi, Enugu and Imo. The differences between the two groups (and other Biafran secessionist movements) is unclear, and DFAT does not have any information on the membership procedures or organisational structure for either movement.
- While the two groups (and other Biafran secessionist movements) have called for independence to occur through peaceful means, such as via referendum, central authorities have strongly rejected such calls, stating the country’s unity is ‘not negotiable’. In October 2015, security forces arrested IPOB’s UK-based leader Nnamdi Kanu on his return to Nigeria, charging him with treason and sedition. Kanu’s arrest sparked nationwide protests among his followers, leading to serious clashes with security forces. Amnesty International reported in November 2016 that, on a number of occasions across the southeast, the military had fired live ammunition with little or no warning to disperse crowds, causing multiple fatalities; while security forces also shot at least 60 people dead in the space of two days in connection with events to mark Biafra Remembrance Day in Onitsha, Ananambra state.
- After Kanu’s release from detention in April 2017 failed to end the demonstrations, security forces launched a military operation, Operation Python Dance, to quell the agitation in the southeast. According to international observers, a September 2017 security operation against IPOB supporters at Kanu’s home resulted in up to 150 deaths. Authorities subsequently designated IPOB a terrorist organisation., While the clampdown by security forces appeared to largely curtail IPOB’s public activities, November 2020 saw a new outbreak of open conflict in the southeast of the country. Rivers state Governor Nyesom Wike has reportedly ‘declared war’ on the group following an attack on security forces which killed six soldiers and four police officers. In her September 2019 post-visit report, the UN Special Rapporteur on extrajudicial, summary or arbitrary execution noted she had received a large number of allegations of killings of IPOB members by military forces in 2017, 2018 and 2019, and authorities had not investigated any of these killings. The Special Rapporteur also noted a number of arrested IPOB members had allegedly been held incommunicado before being detained without charges; and there had not been any convictions of IPOB members since 2015 due to the discontinuance or dismissal of charges.
- DFAT understands that, although authorities have threatened to proscribe MASSOB on several occasions, they have not actually done so and MASSOB has continued to conduct public activities. There have also been recent reports of deaths, injuries and mass arrests of MASSOB members in the context of clashes with security forces during pro-Biafra demonstrations. In May 2019, two MASSOB members were reportedly killed and 15 wounded following clashes with police at a MASSOB anniversary event in Onitsha, Anambra state, while in the same period a MASSOB member was reportedly arrested and tortured at a police station in Mgbidi, Imo state. In September 2018, 125 MASSOB members were reportedly arrested, with some sustaining injuries, during a rally in Anambra state.
- DFAT assesses that, as members of a proscribed organisation, IPOB members face a risk of arrest that is likely to be higher for those in leadership positions. Ordinary members of IPOB, MASSOB and other Biafran secessionist organisations who participate in political demonstrations or rallies face a moderate risk of being subjected to violence by state security forces.
Moderate risk is defined by DFAT as DFAT being aware of sufficient incidents to suggest a pattern of behaviour.
The Tribunal accepts that the first named applicant holds a political opinion regarding the independence and the experience of Biafran States and would feel compelled if returned to Nigeria to continue to support an independent Biafra and protest in support of his beliefs. The Tribunal accepts, based on the country information, that in the current prevailing environment in Nigeria, there is a real chance he may be harmed for continuing his activities with IPOB.
The Tribunal finds, therefore, that there is a real chance that first named applicant would suffer persecution involving serious harm, for reason of his political opinion, should he return to Nigeria now or in the reasonably foreseeable future. The Tribunal finds that the persecution involves systematic and discriminatory conduct, and the first named applicant’s political opinion is the essential and significant reason for the persecution. The Tribunal considers the real chance of persecution relates to all areas of Nigeria. As the agent of persecution is the Nigerian state authorities the Tribunal finds that effective protection measures are not available to the applicant in Nigeria.

The Tribunal therefore finds the first named applicant has a well-founded fear of persecution if returned to Nigeria.
Is safe third country protection available in another ECOWAS Country
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
DFAT has produced a report on the Economic Community of West African States (ECOWAS).[11] ECOWAS is an association of 15 states founded with the aim of promoting regional economic integrations. The Anglophone countries within the region are The Gambia, Ghana, Liberia, Nigeria, and Sierra Leone.
[11] DFAT Thematic Report – Economic Community of West African States (ECOWAS) 3 December 2020.
DFAT reports that the ECOWAS Treaty confers ECOWAS community citizenship on all the citizens of ECOWAS member states. This includes Nigeria. A right of entry provides all ECOWAS citizens in possession of travel documents and international health certificates the right to stay in any ECOWAS state for 90 days without any administrative or security-based immigration requirements.[12]
[12] DFAT ECOWAS report at [2.1, 2.2, 3.3]
While DFAT suggests that Nigerians can freely move into other ECOWAS countries, it indicates that the security situation is unstable in many parts of the ECOWAS region, with armed conflict and other security threats triggering large migration flows between ECOWAS countries. Armed groups continue to perpetuate serious human rights abuses and attacks against civilians in countries including Nigeria, Mali, Niger, and Burkina Faso, both within and between ECOWAS member states, in some cases resulting in protracted displacement and humanitarian crises. International observers report that corruption is prevalent across ECOWAS states and freedom of expression is limited in many states, with some states introducing laws restricting the activities of human rights defenders.
DFAT also indicate that relocation of a person accused of acting against state interests across member state borders may not be possible as those states may not afford protection to those fleeing persecution.[13]
[13] DFAT ECOWAS report at [4.23]
The courts have found that a right under s 36(3) must be presently existing and not a potential right. There must not be any existing prohibition or law contrary to its exercise (V856/00A v MIMA (2001) 114 FCR 408).
The first named applicant does not hold a current, valid passport for Nigeria.
Given the above concerns that the first named applicant may not be afforded protection in member states or be allowed to stay longer than 90 days as well as concerns he will face a barrier to entry without a valid passport, the Tribunal is not satisfied the first named applicant has an existing right to enter and reside in other ECOWAS states.
Is safe third country protection available in The Bahamas
The first named applicant resided in the Bahamas for approximately 17 years from 1998 until he came to Australia in January 2015. He has indicated that he is a permanent resident of The Bahamas on the basis his spousal relationship with the second named applicant, who is a citizen of The Bahamas. Accordingly, the Tribunal finds that the first named applicant has a right to enter and reside in the Bahamas. As the first named applicant has not raised concerns that The Bahamas might return him to another country, the Tribunal is satisfied that s.36 (5) and (5A) do not apply in his case. The first named applicant has claimed, however, that he faces a real chance of persecution involving serious harm if he were to return to The Bahamas on the basis that Bahamian’s hate foreigners and as a Nigerian, he is a seen as a foreigner.
The issue, therefore, is whether s.36 (4) applies in the first named applicant’s case because he has a well-founded fear of being persecuted for reasons of his race and/or nationality and/or particular social group should he return to The Bahamas and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him availing himself of his right to enter and reside in The Bahamas, there would be a real risk that he will suffer significant harm there.
The Tribunal accepts that the first named applicant has a subjective fear of returning to The Bahamas.
The Tribunal accepts on the basis of the evidence before it that the first named applicant is a permanent resident of The Bahamas. The Tribunal accepts based on the evidence before it that he is a Nigerian and therefore a foreign national living in The Bahamas. The Tribunal accepts that he has started [a] business in Australia that he plans to expand and would continue to develop this business if returned to The Bahamas.
The Tribunal accepts the evidence presented that in mid-2011 the first named applicant was shot during an armed robbery at his workplace and in 2013 intervened as a person was attempting to break into his car. The Tribunal also accepts the evidence presented that his family home was broken into while his wife and children were present mid- 2012, with his wife and children subsequently departing The Bahamas for Australia in late June 2012. The first named applicant departed The Bahamas for Australia in January 2015.
The Tribunal is not satisfied on the evidence provided, the applicant was solely targeted because he is a foreigner. The Tribunal does not accept the first named applicant was sought out/targeted by the gunman because he was a foreigner, or that the gunman or anyone associated with him has pursued or targeted the first named applicant since the incident when he was shot. The first named applicant remained living in The Bahamas for several years before departing for Australia with no further incident from the gunman. The Tribunal does not accept the attempted robbery and shooting of the applicant in 2011 was anything more than a random robbery.
The Tribunal does not accept that the break-in of the family home in June 2012 was because the first named applicant was a foreigner. While the Tribunal acknowledges that the robbers asked about whether he was home during the break-in, the Tribunal does not accept the question as anything more than an enquiry as to whether anyone else was in the home or when it was likely he would be returning home in case he disturbed them. The Tribunal does not accept the home invasion/robbery was anything more a random occurrence.
The Tribunal also does not accept disturbing a person who was attempting to break into his car indicates the first named applicant was targeted because he was a foreigner but finds it was more an opportunistic incident.
The country information indicates the Royal Bahamas Police Force (RBPF) is the primary agency that handles all law enforcement matters for the Bahamas. The police continue to practise assertive policing methods, which include high visibility checkpoints, focused raids, and the implementation of shot spotter technology in high crime areas. The police command structure is proactive about deterring crime. In general, the RBPF responds to reports of crime and takes crime seriously, however a lack of resources or physical constraints , such as geography, infrastructure and traffic can hinder police response[14]. Reduction of crime and violence remains a priority of the Government who have established departments and introduced training to facilitate a focus on reducing crime.[15]
[14] OSCA Country Security Report. The Bahamas; US Overseas Security Advisory Council; 15 April 2024; Crime situation, including organized crime; organized crime groups and gangs active in the country; police and state response, including effectiveness; state protection for witnesses and victims of crime (2021–September 2023), Immigration and Refugee Board of Canada, 7 September 2023.
[15] UN Human Rights Council, The Bahamas Report, 7 March 2023.
The law protects racial and ethnic minorities from violence and discrimination. The government generally enforced the law effectively. There is a law requiring non-citizens to carry their passport and proof of legal status in the country and this was generally enforced.[16]
[16] US Department of State, 2023 Country Reports on Human Rights Practices, The Bahamas
The Tribunal finds relevant country information indicates that there is a high crime rate in The Bahamas. World Population Review ranked The Bahamas 34^th highest globally with an overall ‘Crime Index’ of 56.05 (compared to the USA which was ranked 57^th with a crime index of 49.3 and Australia which was ranked 65th with a crime index of 47.1).[17]
[17] Crime Rate by Country 2025, World Population Review, Crime Rate by Country 2025 (worldpopulationreview.com).
DFAT’s Smart Traveller travel advisory indicates that armed robberies, burglaries, purse snatching, theft, fraud, and sexual assaults are the most common crimes committed against travellers to The Bahamas and also notes that The Bahamas has a high murder rate, particularly at night in non-tourist areas. Travellers are advised to exercise a high degree of caution in The Bahamas due to the threat of violent crime.[18] The US travel alert for The Bahamas is at level 2, exercise increased caution, violent crime like armed robberies, burglaries and sexual assaults can occur anywhere in The Bahamas.[19]
[18] Smart traveller, The Bahamas, 4 February 2025, The Bahamas Travel Advisory, travel.state.gov/content/travel/en/traveladvisories/traveladvisories/the-bahamas-travel-advisory; updated 31 March 2025.
The Tribunal accepts based on the country information that the Bahamas has a high crime rate. The Tribunal accepts that the relevant country information indicates there is a higher risk of significant harm due to generalised violence in The Bahamas, in the form of violent crime and homicide, than in many other countries. The country information indicates there may be widespread violent crime and/or organised crime present in the country and /or local law enforcement may have limited ability to respond to serious crimes. There is serious risk from crime in [City 1] and considerable risk in [City 3]. Gang on gang crime represents the Bahamas primary security threat.[20]
[20] OSCA Country Security Report. The Bahamas; US Overseas Security Advisory Council; 15 April 2024; Crime situation, including organized crime; organized crime groups and gangs active in the country; police and state response, including effectiveness; state protection for witnesses and victims of crime (2021–September 2023), Immigration and Refugee Board of Canada, 7 September 2023.
The country information is clear that The Bahamas has a high crime rate with gang-to-gang crime representing the primary security threat. The country information clearly indicates that crime is a significant issue as is random violence in The Bahamas. The country information also indicates that despite the RBPF recognising crime is a significant issue, their resourcing is insufficient to adequately respond.[21]
[21]OSCA Country Security Report. The Bahamas; US Overseas Security Advisory Council; 15 April 2024; Crime situation, including organized crime; organized crime groups and gangs active in the country; police and state response, including effectiveness; state protection for witnesses and victims of crime (2021–September 2023), Immigration and Refugee Board of Canada, 7 September 2023.
The Tribunal has considered the country information provided by the first named applicant that clearly indicates xenophobia in The Bahamas, particularly focused on the Haitian community. The country information provided by the first named applicant as well as country information sourced by the Tribunal,[22] clearly indicates that xenophobia against Haitians is a significant issue in The Bahamas. While there have been some efforts by the government to change that perception in The Bahamian community, there have also been inflammatory comments made by some in government that have added to the xenophobia against the Haitian community in the Bahamas.
[22] European Country of Origin Information Network, Freedom House, US Department of Sate Human Rights, Canada Immigration & Refugee Board Country of origin Information.
There is limited country information supporting the first named applicant’s claim that as Nigerian, he can be mistaken for a Haitian, particularly as his accent identifies him as not being a local. However, the Tribunal cannot discount that if returned to The Bahamas in the future, there is a chance he will be wrongly identified as a Haitian and targeted for harm, particularly in an environment where there is increasing xenophobia against Haitians.
While the Tribunal did not accept the past attacks on the first named applicant and his family were because he is a foreigner, it cannot discount that if returned to The Bahamas in the future where there is increasing xenophobia against Haitians, he will be wrongly identified as a Haitian and face serious harm. The Tribunal considers that there is a small but real chance the first named applicant will be targeted for violent crime because of his race and/or nationality as a foreign national and a Nigerian. The Tribunal also considers his profile will be increased because of his [passion] that has manifested itself into a business that he intends to continue if returned to The Bahamas, in that he is a foreigner who has expensive [equipment] and will be perceived as wealthy.
Based on the country information the Tribunal accepts there to be a small but real chance that is more than remote or far fetched, that the first named applicant will face serious harm on return to The Bahamas in the form of significant physical harassment and ill-treatment as well as threats to his life or liberty.
The Tribunal finds that the persecution involves systematic and discriminatory conduct and the first named applicant's race/nationality as foreign national and Nigerian as well as his membership of a particular social group as a foreigner in The Bahamas and therefore the perception that as a foreigner he is wealthy, is the essential and significant reason for the persecution.
The Tribunal finds that the real chance of persecution relates to all areas of The Bahamas as required by s 5J(1)(c) as the xenophobia exists throughout The Bahamas.
The Tribunal finds that the persecution feared is from non-state actors. Country information indicates that while The Bahamian government is proactive about deterring crime, a lack of resources or physical constraints, hinders police response. The country information indicates local law enforcement have limited ability to respond to serious crimes. The Tribunal also accepts on the basis of the country information that due to xenophobia, if the first named applicant is perceived to be Haitian, the local police are unlikely to respond in a timely fashion, discriminately withholding state protection from the first named applicant. The Tribunal therefore finds the first named applicant is unable to access effective protection from The Bahamian authorities.
It follows that the Tribunal accepts that the first named applicant has a well-founded fear of persecution in The Bahamas for one or more of the s5J(1)(a) reasons. Therefore s36(4) applies because he has a well-founded fear of being persecuted for reasons of his race and/or nationality and/or particular social group should he return to The Bahamas. The Tribunal finds safe third country protection is not available to the first named applicant in The Bahamas.
The Tribunal finds that the first named applicant meets the definition of a ‘refugee’ in s 5H(1) and the criteria in s 36(2)(a) of the Act.
CONCLUDING PARAGRAPHS
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 second named applicant is a person 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 named applicant is the spouse of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(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 applicant satisfies 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:2 April 2025
Representative:   Deivamanee Naidu
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.
…