2003575 (Refugee) [2022] AATA 3261 (14 July 2022)

Last Updated: 12 October 2022

2003575 (Refugee) [2022] AATA 3261 (14 July 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr Emete Joesika (MARN: 0100301)

CASE NUMBER: 2003575

COUNTRY OF REFERENCE: Nigeria

MEMBER: Paul Noonan

DATE: 14 July 2022

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2022 at 4.13pm
CATCHWORDS
REFUGEE – protection visa – Nigeria – religion – Christian fearing harm from Islamist extremists – fear of harm from extended family because of sale of land and from friend and group because of loans to pay for visa – threats on social media – mental health – credibility – vague and implausible claims and evidence – requests rather than threats – country information – extremists most active in other parts of country – compassionate circumstances – Australian citizen partner’s physical health – primary carer for Australian citizen children – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (b), (4), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Ram v MIEA [1995] FCA 1333; (1995) 57 FCR 565

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 dependants.

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 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant, who claims to be a citizen of Nigeria, applied for the visa on 28 April 2015. The delegate refused to grant the visa on the basis that the applicant is not a reliable witness, who has made improbable statements that lacked specificity and embellished his claims, and that he does not meet the criteria for protection from Australia. The delegate was satisfied that the applicant’s country of nationality is Nigeria, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to his Nigerian passport, birth certificate and marriage certificate, copies of which are retained on the Department’s systems and file, and accordingly has assessed his claims with respect to Nigeria as the country of reference or receiving country for the purposes of this appeal.
3. The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments. The Tribunal also heard evidence in support of the applicant from one witness, [Ms A]. The Tribunal notes that the applicant made claims to suffer from mental health issues at the commencement of the hearing. While being mindful of these claims during the hearing, the Tribunal considers that the applicant was able to answer the questions asked of him during the hearing in a considered and unimpeded manner and notes that he was also professionally represented throughout the hearing and no request for an adjournment on the basis of mental health reasons was made at any stage during the hearing. The Tribunal is satisfied that the applicant was able to engage in the hearing meaningfully and that he full comprehended the questions asked of him.
4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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). 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.

Mandatory considerations

10. 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.

Procedural history

11. The applicant arrived in Melbourne, Australia [in] June 2014 on a visitor visa (Subclass 600) departing from Lagos, Nigeria. He then lodged his application for a protection visa (Class XA Subclass 866) on 28 April 2015.
12. The applicant was interviewed by the delegate on 7 November 2018. For the purposes of his application to the Tribunal, the applicant provided a copy of the delegate’s decision.

CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant made the following disclosures with respect to his background and profile in his written claim for protection. He was born on [Date] at [Location], Lagos State in Nigeria. He speaks, reads and writes the English and Yoruba languages. His ethnic group is Yoruba and he is of the Christian faith. At time of application, he stated he was [an Occupation 1].
14. In his written claims for protection the applicant made the following claims (in summary) with respect to fearing persecution should he be required to return to Nigeria:
    • He fears harm from Boko Haram, an Islamic extremist organisation following a violent attack on a Christian church he was attending.
    • He fears harm from his extended family who have been threatening him with “black magic” as he owes money to them after selling the family land.
    • He fears harm from a man in the Oodua People’s Congress (OPC) he borrowed money from who has sent him threatening messages on [Social media] demanding money.
15. The delegate was satisfied that the applicant is a Yoruba Christian and that Boko Haram was targeting Christians in Abuja. The delegate was not satisfied that the applicant was a credible witness in relation to an attack on a church in Abuja in 2011. The delegate, in relation to claims concerning threats stemming from the applicant’s extended family, found the applicant’s testimony to be “vague, unspontaneous, incoherent and implausible” and was not satisfied that the applicant was a credible witness. The delegate, in relation to the OPC, found no reports that the OPC were linked to money lending violence, in addition to finding the applicant to be embellishing or contriving his claims to strengthen his claims for protection in Australia.
16. The applicant noted that his ex-partner is an Australian citizen and he came back to Australia with her on a visitor visa. He was misled by her and thought she would sponsor him for a partner visa but this did not occur. He confirmed his visitor visa was valid for only three months.
17. The applicant stated that he works as an [Occupation 2]. He cannot work as much as he would like due to his partner’s serious health problems. He submitted evidence reflecting that his partner is currently hospitalised.

The applicant’s mental health

18. The applicant stated that he is under some stress as his partner is in hospital due to a significant health issue. The applicant submitted that he has a mental health referral with respect to his stress. The applicant noted that he was treated by a psychologist in 2020 and agreed that the referral was based upon his current situation with his partner and her comorbidity issues. He submitted that he currently sees a mental health social worker. He also has a current appointment to see a treating psychologist for a second appointment. He thought the first appointment was two or three weeks ago. He does not take medication.
19. The applicant’s representative noted that the applicant will be looking to lodge a partner visa, however, he cannot afford the fees involved given his partner’s health problems and the dependents they have to support. The applicant confirmed that he has four children, born in [year range]. The eldest were born to his ex-partner and the youngest to his current partner. He also has two step-grandchildren placed into his and his partner’s care by the relevant government department. He also pays child support at the minimum rate to his ex-partner in respect to his eldest children. The applicant’s representative stated that he believes that his client’s circumstances warrant consideration for a ministerial intervention recommendation by the Tribunal given the criteria around the best interests of Australian citizen children. The applicant stated that he has no other relatives to help care for the children, which is why the youngest ones were attending the Tribunal hearing.
20. The Tribunal noted that there are papers on file with respect to domestic violence issues. The applicant stated that he was charged but not convicted in respect to this and the matter was dismissed by the Court. The applicant put to the Tribunal that he fears harm should he be required to return to Nigeria due to not being able to access adequate mental health care. The Tribunal asked the applicant who and why would someone target the applicant for harm or intentionally omit treatment for reason of his mental health, noting that the refugee and complimentary criteria require this. The applicant’s representative submitted that medical hospital conditions in general are very poor and the applicant made no specific submissions. The Tribunal accepts that the applicant fears harm for reason of his membership of the particular social group “people with mental health issues”.
21. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
22. It is well established that persecution involves an element of motivation for the infliction of harm. In Ram v MIEA Burchett J said:

Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. ... Consistently with the use of the word “persecuted”, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is “membership of a particular social group”. ... The link between the key word “persecuted” and the phrase descriptive of the position of the refugee, “membership of a particular social group”, is provided by the words “for reasons of” - the membership of the social group must provide the reason. There is thus a common thread which links the expressions “persecuted”, “for reasons of”, and “membership of a particular social group”. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase “for reasons of”, and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group.^[1]

23. The Tribunal notes that DFAT assesses Nigeria has a limited capacity to provide formal mental health services to its citizens. Community and family structures and religious institutions may, in some cases, help cover this gap. In other cases, social and religious attitudes can significantly exacerbate mental health challenges. DFAT considers individual circumstances need to be examined closely when assessing claims related to mental health.^[2] DFAT also notes that mental health has historically been neglected on Nigeria’s health and development policy agenda. The WHO estimates one in four Nigerians suffer from mental illness, but fewer than 10 per cent of mentally ill Nigerians have access to the care they need. According to the WHO, the absence of treatment is fuelled by poor funding, stigma and poor knowledge of the disease. There is a strong societal belief that mental illness is caused by evil spirits or supernatural forces. Many Nigerians suffering from mental illness seek treatment from traditional or faith-based healers rather than mental health professionals. Further, Nigerians suffering from mental health issues can be vulnerable to abuse. ^[3]
24. In this instance the applicant’s mental health concerns were presented in general terms of suffering some stress and he did not make claims with respect to more significant mental health issues. Upon discussion with the Tribunal he did not identify anyone or any group that may be motivated to harm him and his concerns were presented in the context of the generally poor state of the health system. The Tribunal accepts that the applicant is stressed. However, this is unfortunately a common problem for people seeking refugee status and for those with family health problems. Taking into account the applicant’s highly functional presentation and history, which includes successfully caring for several dependents, lack of medication and lucidly presenting his case to the Tribunal, the Tribunal does not accept as reasonably plausible that the applicant’s stress would result in the applicant being identified by anyone in Nigeria as suffering from mental health issues or that he has, or would, develop symptoms that would manifest as such. The Tribunal does not accept that there is a real chance that the applicant will be persecuted for reason of his membership of this particular social group should he be required to return to Nigeria now or in the reasonably foreseeable future, as it is satisfied that he will not be perceived or attributed as being mentally ill.
25. The Tribunal accepts that the applicant may continue to suffer from some degree of stress should he return to Nigeria and that, given the country information highlighting the likely unavailability of appropriate medical care, he will be unable to seek appropriate treatment for this stress should he require it. However, as discussed at hearing, an element of intent or motivation involving systematic and discriminatory conduct by a person or persons must be present when considering if he will be persecuted. The Tribunal considers that any harm experienced for this reason would be as a result of the generally poor health care conditions in Nigeria and would not be as a result of persecution for reason of his membership of this particular social group.
26. Given the above considerations, the Tribunal is satisfied that the applicant’s fear of persecution for this reason is not well-founded.

Religious opinion

27. The applicant fears persecution from Islamic extremists associated with the extremist movement known as Boko Haram due to his Christian religion. The Tribunal noted and set out at hearing that DFAT assessed that Boko Haram is considered to be undergoing a resurgence and that it poses a serious ongoing threat to security in the northeast of Nigeria with limited prospects of being neutralised in the short term.^[4] However, as discussed with the applicant, he is a resident of Lagos, which is in the south of the country, and there is no country information that reflects that Boko Haram is active at all in Lagos. The Tribunal also noted that while the applicant claims an incident of harm perpetrated by Boko Haram at a church in 2011, this occurred in Abuja in the northeast while he was on a business trip. Further, since then he had returned to live in Lagos for many years and had not experienced further harm from Boko Haram. The applicant submitted that he carried feelings of fear stemming from the 2011 bombing attack on the church in Abuja and this was why he decided eventually to relocate to Australia. The Tribunal noted that the applicant has previously stated that he sought to move to Australia because he wanted to visit his partner and resolve personal issues with her and to visit his sick child here. The applicant submitted that fear of Boko Haram was also a component of this decision.
28. The Tribunal is prepared to accept that the applicant was in the vicinity of a terrorist attack on a church carried out in 2011 in Abuja by Boko Haram. However, the criterion in s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. The Tribunal acknowledges that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. However, as discussed at hearing, since the event in Abuja, the applicant returned to live in his permanent place of abode, which is in Lagos. Country information does not reflect that Lagos, which is the capital of Nigeria and a city of many millions of people, is subject to adverse activity by Boko Haram or any other Islamic extremists. This is reflected in the fact that the applicant safely resided in Lagos for several years after the claimed attack and for many years prior, without suffering any harm from Boko Haram of any other extremist group for reason of his religion. In such circumstances the Tribunal finds that there is no real chance of the applicant being persecuted for reason of his religious opinion by Boko Haram extremists or any other extremists, either now or in the reasonably foreseeable future should he return to Lagos. His fear of persecution for this reason is therefore not well-founded.

A person who owes money

29. The applicant confirmed that he borrowed a lot of money to fund his tourist visa to Australia. He raised money from his mother’s family and from his friend. With respect to his friend, he confirmed he had borrowed that money personally. However, his friend told him he got the money from a friend of his who was an OPC member. The Tribunal noted that he has not provided any written records of these claimed loans. The applicant stated that the loan from his friend was in cash. The Tribunal discussed with the applicant that it may appear implausible that his friend or his friend’s friend would not require some written records of the claimed loan. The applicant simply submitted the loan was given on trust. The Tribunal put to the applicant that if the loan had some formal connection to the OPC, it may appear implausible that this organisation would not require some form of formal record of monies lent. The Tribunal discussed that this may strongly indicate that the loan was not sourced from the OPC. The applicant then agreed the loan was only from a member of the OPC. He then submitted that the OPC backs up all its members if they face challenges and as such the OPC is adversely interested in him due to him owing money to its member. When asked if his friend had contacted the OPC about the claimed debt the applicant stated he did not know.
30. The Tribunal noted and discussed [Social media] communications submitted by the applicant in which his friend is alleged to be asking for his money back. The Tribunal noted that these messages do not contain any threats of harm and simply indicate that his friend is asking for the return of his money, which appears to be a reasonable request. The Tribunal noted that it may consider that there is nothing to indicate that, should he return to Nigeria, his friend or the OPC would seek to harm him, but would simply continue to ask him to return monies owed. The applicant stated that he has submitted country information with respect to OPC attacks in Lagos demonstrating that they are a violent threat. He submitted that they are careful not to post threats online but had visited his mother and threatened her at one stage. The Tribunal also noted that the applicant appears not to have made any attempts to repay claimed monies owing to his friend. The applicant stated that he does not have the means to do so. He then agreed when it was put to him that he has sent money back to support his daughter in Nigeria and her school fees but stated that this was a lower amount than that which he owes his friend.
31. The Tribunal accepts that the applicant may owe money to a friend as a result of borrowing money to travel to Australia to see his sick child. However, the Tribunal finds the applicant’s evidence that his friend has involved the OPC (which is a youth group made up of the Yoruba ethnic group), and seeks to harm him either personally or by using the OPC in recouping this debt, to be a vague and implausible claim. The only written evidence of the claimed loan is a [Social media] post from his friend, which simply requests that the money be repaid. There is no mention of the OPC or any threats of retribution or harm for not repaying the money and no evidence at all of any involvement from the OPC, which the Tribunal would expect would be clearly stated if they were indeed seeking to harm the applicant for this reason. There is also nothing within the country information about the OPC submitted by the applicant that indicates that any violence perpetrated by them is for reason of debt collection of personal matters such as this; rather, it is entirely political in nature. The Tribunal concludes that, at most, the applicant simply owes some money, given in cash by a friend to him, who now, understandably, would like the money returned. The applicant’s claim to fear harm for this reason appears entirely speculative. The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA^[5], Dawson J stated: “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo^[6], the Court said:

Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Refugee Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well founded if it is merely assumed or if it is mere speculation.

32. The Tribunal finds that there is no real chance of serious harm to the applicant for reason of him owing money to a friend should he return to Nigeria either now or in the reasonably foreseeable future. His fear of persecution for this reason is therefore not well-founded.

A person involved in a family land dispute

33. The Tribunal also discussed the applicant’s claim that his siblings were upset that his mother had sold land to facilitate his trip to Australia. The applicant agreed that the land was solely owned by his mother and that his siblings were aware of the sale and agreed to it. The Tribunal noted he had subsequently informed the delegate that his mother had been approached by her brothers who were upset that she had not shared the land sale proceeds with them. The applicant agreed this was the case, and his siblings are not upset. When asked how his uncles had any interest in the land, the applicant simply stated it is traditional, and disputes of this kind are common and often result in killings. He claimed that his mother was attacked by one of her brothers in 2017. The Tribunal noted that the applicant has now submitted a medical report recounting his mother had suffered domestic violence in 2017. The applicant stated this was perpetrated by her brother. When asked, the applicant claimed that his siblings had gone to the police about the attack on his mother, however he has not been able to obtain this report. The applicant stated that he is not aware of any demands made of his mother or himself since 2017. The Tribunal put to the applicant that it may appear implausible that he would not take measures to pay money to his mother to ensure her safety. The applicant simply submitted he has not been in a position to do so. He confirmed he has not personally received any threats of harm of any kind from his uncle.
34. The Tribunal considers that the applicant’s claims to fear harm from his uncle should he now be required to return to Nigeria to be unconvincing. This is because many years have passed since his uncle was apparently upset with his mother for her land dealings. The applicant has made no subsequent attempt to repay the money or negotiate terms and despite this, there have been no further adverse actions undertaken by his uncle and no threats made. It is far more plausible that his uncle is simply not adversely motivated to harm the applicant, as reflected by his clear lack of motivation to further harm the applicant’s mother, with respect to this issue, possibly as a result of the claimed subsequent police action by his siblings. Further, many years have now passed with no threats of harm issued. The applicant confirmed that he has not received any threats of harm or experienced any past harm at all from his uncle and as such his claim to fear harm from members of his family due to black magic is an entirely speculative claim with no basis to it. The Tribunal concludes that there is no real chance of serious harm to the applicant for reason of his mother’s claimed past land dealings and his subsequent receipt of money from her, should he return to Nigeria either now or in the reasonably foreseeable future. His fear of persecution for this reason is therefore not well-founded.

Complementary protection

35. The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
36. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if he returns to Nigeria. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that he will suffer significant harm for reason of his religion, or because he owes money to a friend or because of a past land dispute with his family.
37. With respect to the applicant’s claimed fear of not being able to access adequate treatment for mental health problems that may arise or manifest upon his return to Nigeria, the Tribunal discussed with the applicant that significant harm as defined by s 36(2A), when viewed within the context of poor medical treatment, requires an act or omission with an element of intent. The Tribunal has already found that the applicant’s symptoms would not lead to him being intentionally targeted for harm, and when this issue was discussed, he was unable to identify any reason for an intentional act or omission that would result in harm to him for reason of his state of mental health. The Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk he will suffer significant harm for reason of his mental health.

Overall conclusions

38. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). He therefore does not have a well-founded fear of persecution as per the test at s 5J(1).
39. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
40. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

Ministerial intervention recommendation

41. The Tribunal notes that the applicant has an Australian citizen partner whom the Tribunal accepts on the medical evidence submitted suffers from a debilitating [medical] condition. The Tribunal accepts the applicant’s evidence and that of his representative and witness that he is the primary carer of his young Australian citizen children given his partner’s debilitating condition. The Tribunal is of the view these are circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration. It is of the view it may be in the applicant’s children’s best interests that the applicant be allowed to remain in Australia.
42. Having regard to the Minister's guidelines on ministerial powers and evidence before it, the Tribunal considers that there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens.
43. Accordingly, this is a matter which the Tribunal recommends should be referred for ministerial intervention under s 417 of the Act with the recommendation that the Minister intervene to allow the applicant to remain in Australia.

DECISION

44. The Tribunal affirms the decision not to grant the applicant a protection visa.

Paul Noonan
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.

...

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^[1] Ram v MIEA [1995] FCA 1333; (1995) 57 FCR 565 at 568. Approved in Applicant A v MIEA (1997) 190 CLR 225 at 284
^[2] DFAT Country Information Report – Nigeria, 3 December 2020, p. 15
^[3] Ibid, p.14
^[4] Ibid, p. 21
^[5] Chan v MIEA (1989) 169 CLR 379 at 397
^[6] MIEA v Guo (1997) 191 CLR 559 at 572