ELG20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 315

Evidence Act 1995 (Cth) s 55

Migration Act 1958 (Cth) ss 5, 5(1), 5AAA, 5J, 5J(1), 5J(1)(c), 5J(3), 5J(3)(c), 5J(3)(c)(iii), 36, 36(2), 36(2)(a), 36(2)(aa), 36(2A), 36(2A)(d), 36(2B), 476

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 8.12

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

International Covenant on Civil and Political Rights

United Nations Convention on the Rights of the Child

APT19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 856

Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135

BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095

Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592

Campbell v ACT Planning and Land Authority [2024] ACTSC 10

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

DCR19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2021) 289 FCR 346; [2021] FCAFC 229

Hamod v New South Wales [2011] NSWCA 375

Islam v Cash [2015] FCA 815; (2015) 148 ALD 132

JNE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1314

Kaur v Royal Melbourne Institute of Technology [2024] VSCA 264

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291

M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497

Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 362 ALR 48

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164

Pennie v Minister for Home Affairs [2019] FCAFC 129

Swift v SAS Trustee Corporation [2010] NSWCA 182

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40

SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The applicants, citizens of Nigeria, seek judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 28 September 2020. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicants a Protection (Class XA) (Subclass 866) visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
2. The first applicant is the primary applicant for the protection visa. The second applicant is the former wife of the first applicant and the third and fourth applicants are the first and second applicants' daughter and son respectively. They are members of the same family unit, whose claims are largely dependent on the first applicant's claims.
3. In January 2025, the first applicant informed a Judicial Registrar of this Court that the second, third and fourth applicants are now Australian citizens. The first applicant, who appeared at the hearing, did not wish the said applicants to be removed as parties and in the absence of an application by those parties to be removed they remain parties.
4. The applicants sought to impugn the Tribunal's reasons and findings on the grounds set out at [30] of this judgment. For the reasons set out below, I find the applicants have not demonstrated jurisdictional error and I dismiss the application.

1. The first applicant arrived in Australia on 15 March 2016 on a Visitor (Class FA) (Subclass 600) visa (Court Book (CB) 25 and 218). On 5 April 2016, the first applicant was granted a Student (Class TU) (Subclass 573) visa (CB 218).

1. On 16 September 2016, the first applicant applied for a protection visa (CB 1 to 47).
2. The first applicant's claims were set out in his protection visa application (CB 36 to 39) and his undated statement attached to his protection visa application (CB 121 to 130). The Tribunal at [22] of its reasons fairly summarised the claims as follows:

(a) The first applicant left Nigeria to join his wife who was studying in Australia.

(b) He feared he would be killed in Nigeria.

(c) He and his family were at risk of death, and their properties, business and family assets had been destroyed.

(d) He had been attacked by militants and those who felt threatened by his stand against violence and due process.

(e) His wife and children were almost kidnapped on 2 February 2015.

(f) The police were incapable of handling the above issues, and mainly acted only for the politicians in power.

(g) He attempted to relocate to Abuja, the capital of Nigeria, but did not feel secure given cases of political murder.

(h) He and his family would be exposed to kidnapping should he return as a businessman from Australia.

1. The Tribunal's reasons at [23] to [26] referred to the first applicant's further submissions and additional statements which expanded upon the first applicant's claims. In those submissions and statements, the first applicant claimed that he joined the National Democratic Party (NDP) in 2004 and when his brother was forced into exile from Nigeria to Singapore between 2005 and 2006, the first applicant undertook the leadership role of the NDP, which eventually led him to join the People's Democratic Party (PDP) in 2010 when a period of political harmony was sustained in the country. Further, in 2013, an upsurge of political instability resulted in many killings and deaths of opponents. After the first applicant's return to Nigeria from the USA in 2014, four men confronted the first applicant on two separate occasions and threatened him. On one occasion, an attempt was made to kill the first applicant, on which occasion the first applicant's elder brother was severely beaten and almost killed.

1. On 22 June 2017, a delegate of the Minister refused the first applicant's protection visa application on the basis that the first applicant was not a person in respect of whom Australia had protection obligations (CB 216 to 233). The delegate did not accept the first applicant's version of events and found his chronology of events to be contrived by him to strengthen his protection claims. The delegate also found he had fabricated the claims about his past experiences and incidents to create claims of persecution in Nigeria. Accordingly, the delegate found the first applicant was not a witness of truth and had fabricated his claims to prolong his stay in Australia.

1. On 23 June 2017, the first applicant applied to the Tribunal for review of the delegate's decision (CB 234 to 239).
2. By letter dated 26 June 2017, the Tribunal invited the first applicant to provide any material or written arguments in support of the application (CB 242). The first applicant provided, relevantly, the following to the Tribunal:

(a) Written submissions including a statement of claim dated 25 January 2018 (CB 256 to 268). The first applicant was assisted by Mr Uche Okereke-Fisher in preparing the submissions.

(b) Letter from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors which indicated the first applicant had been referred due to "stress and anxiety" on 17 May 2017 (CB 273).

(c) Copy of "Commission of Inquiry to Investigate Politically Motivated Killings and Damage to Property Before, During and After the 2015 General Elections in Rivers State Final Report" dated 21 May 2015, highlighting a statement regarding his claim that he and his brother were attacked (CB 280 to 311).

1. On 3 September 2020, the first applicant's representative submitted the following additional documents to the Tribunal:

(a) Further written submissions dated 3 September 2020 (CB 348 to 354).

(b) Information and online article regarding the non-government organisation Abolga Meet and Greet facilitated by the first applicant (CB 355 to 358).

(c) Various Facebook screenshots from Abua/Odual Local Government and Abolga Community Groups (CB 359 to 413).

1. On 8 September 2020, the first applicant attended a Tribunal hearing in person with his former wife, the second applicant (CB 414 to 416). The Tribunal hearing was adjourned and scheduled for a resumed hearing on 11 September 2020 (CB 419). On 11 September 2020, the first applicant attended the resumed hearing by video conference with his former wife, the second applicant, and assisted by his representative, Mr Md Obaydul Huq (CB 427 to 430).
2. Following the hearing on 11 September 2020, the first applicant's representative provided to the Tribunal post-hearing submissions, which sought to address "the confusions and contradictory dates provided" in the Tribunal hearings and statements regarding the second applicant's travels, the first applicant going into hiding, the second applicant's attempted kidnapping and the first applicant's business closure (CB 433 and 434).

1. The Tribunal stated that the primary issue for determination was the credibility of the applicants and whether the criteria for a protection visa was met ([14] of its reasons).
2. The Tribunal noted the first applicant's claims as set out in his protection visa application at [22] of its reasons, which are reproduced at [7] of this judgment, and the Tribunal reproduced the claims made by the first applicant in his statement accompanying his protection visa application at [24] of its reasons, his written statement dated 25 January 2018 at [25] of its reasons and his written statement dated 3 September 2020 at [26] of its reasons. The Tribunal also identified at [27] of its reasons various articles, a report and letters the first applicant provided during the course of his protection visa application.

1. The Tribunal identified the following eight credibility concerns it had with the claims made by both the first and second applicants:

(a) First, the Tribunal found the first applicant had not been consistent with regard to the extent of harm claimed by him due to his political views ([33] to [44] of its reasons). The Tribunal viewed the first applicant's failure to mention, either during the interview with the delegate or the Tribunal hearings, an alleged incident in around 2014 where there was an alleged attempt to kill the first applicant when he was with his brother, as undermining the first applicant's credibility. The Tribunal considered that if the incident were true it would have been pertinent to the first applicant's protection claims and readily articulated at the interview with the delegate and during the Tribunal hearing, as opposed to referring to this alleged incident for the first time in the first applicant's written submissions dated 25 January 2018 ([38] to [40] of its reasons). The Tribunal put to the first applicant that his written claim identified that on multiple occasions he had escaped attempts on his life, was not consistent with the instances of threats and harm articulated in the interview with the delegate and the first Tribunal hearing, to which the first applicant explained that he had no evidence to corroborate the events and thought they should not be mentioned ([42] of its reasons). The Tribunal considered that the failure by the first applicant to mention at the interview with the delegate or during the first Tribunal hearing the significant alleged threats or harm undermined his credibility ([44] of its reasons).

(b) Second, the Tribunal similarly found the second applicant was not consistent in her claims of harm ([45] to [48] of its reasons). Despite the second applicant having indicated and confirmed during the first Tribunal hearing that she only faced one incident of harm, being an attempted kidnapping when travelling to the airport in Lagos, the Tribunal put to the second applicant her handwritten claim in that she alleged she had been attacked in her business resulting in her being rushed to hospital. The second applicant agreed it was her handwriting but denied that she had been attacked in her business or rushed to hospital. The Tribunal found this inconsistent claim raised credibility concerns ([48] of its reasons).

(c) Third, the first and second applicants gave inconsistent evidence as to the time the first applicant left to go into hiding in Abuja and the contact he had with the second applicant on her return visit to Lagos ([49] to [56] of its reasons). The first applicant stated he was in Lagos with the second applicant in December 2014 and fled to Abuja in February 2015, whereas the second applicant gave evidence that when she returned to Lagos in December 2014 the first applicant had been in hiding for approximately two months. The second applicant then stated she was mistaken and her memory was affected by the passage of time and mental health issues. The Tribunal was not satisfied that mental health issues were an understandable cause of the inconsistency given there had been no indication or evidence of any mental health issues presented to the Tribunal, and was not satisfied that either the first or second applicant would be mistaken as to the timing of hiding given it was a significant event.

(d) Fourth, the Tribunal identified inconsistent evidence in relation to the kidnapping attempt of the second, third and fourth applicants ([57] to [64] of its reasons). In the first two sets of written claims and at hearing, the event was alleged to have occurred on 3 January 2015 while they were being driven to the airport to visit the first applicant in hiding in Abuja. The first applicant gave evidence that he did not travel to Abuja until February 2015. Evidence was later given that the alleged kidnapping occurred on 21 March 2015. Although the Tribunal accepted there might be difficulties remembering specific details, subsequent inconsistent dates provided by the first and second applicants created a degree of credibility concerns which added to more significant matters.

(e) Fifth, despite initially indicating to the delegate that the first applicant's family visited the first applicant every two months when he was in hiding in Abuja, the first and second applicants then gave evidence that there was only one visit ([65] to [71] of its reasons). The first applicant's written statement separately claimed he could not see his family when in Abuja. The inconsistency was largely unexplained and undermined the applicants' credibility given it was a straightforward matter and there were multiple inconsistencies on the issue.

(f) Sixth, the Tribunal identified an inconsistency as to claims that political violence caused the closure of the first applicant's two travel agencies ([72] to [80] of its reasons). The second applicant indicated these businesses continued running after the first applicant came to Australia, however the first applicant indicated there was an attack on his business five or six days after he came to Australia and the businesses subsequently closed. When the Tribunal put the inconsistency to the applicants, the first applicant explained that the second applicant was not fully informed of the situation, while the second applicant stated that what she said was correct. The Tribunal was not persuaded that if it were true the businesses shut down so soon after the first applicant's arrival due to an attack, this information would have been provided to the Tribunal.

(g) Seventh, the first applicant gave inconsistent evidence as to the date his farm business was attacked and the number of individuals killed in that attack ([81] to [88] of its reasons). The first applicant indicated at the first Tribunal hearing that this event occurred five or six days after his arrival to Australia on 15 March 2016, contradicting his written claims that it occurred one month after his arrival. The first applicant explained this discrepancy by stating he deliberately indicated a later and untruthful date to make it more consistent with media reports he had provided to the Tribunal as to violence in the area, which the Tribunal considered a fanciful explanation. With respect to the number of workers killed in the attack, the first applicant indicated during the first Tribunal hearing that two workers were killed and later confirmed this. In his written claims, he stated three workers had been killed. When put to the first applicant, he explained that one was in fact a contractor rather than an employee, which explanation the Tribunal stated was not persuasive.

(h) Eighth, the first applicant did not provide any corroborative social media evidence of him having actively engaged in condemning violence in his local area and blaming politicians linked to the PDP ([89] to [98] of its reasons). In particular, the Tribunal found no social media evidence of the first applicant raising local violence and political connections at a conference he attended in the USA or that corroborated his hiding in Abuja for 13 months, and the political comments posted on Facebook provided by the applicant were "relatively benign, as might be expected in normal and lawful political discourse". The first applicant explained he did not post his views, but everyone knew of his views, which the Tribunal was not persuaded, finding that if the first applicant were truly a strident applicant against political violence, his social media would have evidenced that fact.

1. Having considered the credibility concerns outlined in the preceding paragraph cumulatively, the Tribunal found the credibility concerns to be damaging to the credibility of both the first and second applicants ([100] of its reasons). Ultimately, the Tribunal was not satisfied that the first applicant nor the second applicant were truthful or honest witnesses, resulting in the Tribunal not being satisfied as to the core substantive claims for protection made by the first and second applicants.
2. The Tribunal concluded as follows:

(a) The Tribunal was satisfied that the first applicant had been involved in community and youth affairs in his local area, including in Australia, and had some degree of interest in politics (at [101]).

(b) The Tribunal accepted that the first applicant had a position in the NDP in the mid-2000's and noted the first applicant confirmed that from 2013 he distanced himself from direct activity and politics (at [102]).

(c) The Tribunal was not satisfied by a number of claims made by the first applicant due to his political activity, including: that he was a prominent advocate against political violence in Nigeria or had publicly linked the violence to the PDP or other politicians including BA (who I have anonymised in this judgment); or he was targeted for harm by supporters because of this; he was threatened in person or over the telephone due to his political views; there had been attempts to kill him or that his brother was severely beaten; and individuals who wished to harm the first applicant had loitered around his business premises (at [103]).

(d) The Tribunal was not satisfied that the purpose of the first applicant fleeing from Lagos to Abuja was to go into hiding to escape PDP supporters, BA or anyone wanting to attack him, or that his farm business was attacked resulting in the death of employees or confiscation of the property. Further, the Tribunal was not satisfied that the attack on his business led to the closure of the first applicant's travel business (at [104]).

(e) The Tribunal was not satisfied that PDP supporters or BA had an intention to harm the first applicant due to his profile and a fear that the first applicant would run as a representative leading to displacement of BA's position (at [105]).

(f) The Tribunal was not satisfied that the second applicant was harmed or threatened in Nigeria due to her own or the first applicant's political views, nor satisfied that the second, third and fourth applicants faced a kidnapping attempt in 2015. The Tribunal was not satisfied that the second applicant was attacked at her business and subsequently rushed to hospital (at [106]).

1. Given its findings, the Tribunal was not satisfied that there were political views on the part of the first applicant or adverse political attention against him that would have resulted in him facing a real chance of serious or significant harm on return to Nigeria ([107] of its reasons). The Tribunal also did not accept that the first applicant had a past or a profile or any desire to act politically in any way in the future that would have put him at risk of a real chance of serious or significant harm ([108] of its reasons). The Tribunal was further not satisfied that the first applicant faced a real chance of serious or significant harm from militant group Boko Haram based on having lived in a western country ([112] and [116] of its reasons). As such, the Tribunal found at [117] of its reasons that it was not satisfied the first applicant faced a real chance of serious or significant harm on return to Nigeria for any of the reasons claimed.
2. Accordingly, the Tribunal was not satisfied that the first applicant had a well-founded fear of persecution for any of the reasons set out in the Act, or that he was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or (aa) of the Act, and affirmed the delegate's decision not to grant the first applicant a protection visa.

1. The first applicant appeared before me as a litigant in person. Mr Greg Johnson of Counsel (Mr Johnson) appeared for the Minister. Mindful of the Court's duty to self-represented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]), I explained to the first applicant the role of the Court in undertaking judicial review. I ensured the first applicant was in possession of all relevant documents, namely the Court Book, application for judicial review, the first applicant's affidavit affirmed on 13 October 2020, two additional documents accepted for filing on 7 March 2025, which annexed copies of the transcript of the first and second Tribunal hearings, the first applicant's written submissions accepted for filing on 2 September 2025 and the Minister's written submissions dated 23 December 2025.
2. The first applicant relied on his written submissions accepted for filing on 2 September 2025 and the Minister relied on his written submissions dated 23 December 2025. The first applicant and Mr Johnson also made oral submissions.

1. The evidence before the Court comprised of the following documents:

(a) Affidavit of the first applicant affirmed on 13 October 2020, which annexed a copy of the Tribunal's decision record dated 28 September 2020.

(b) Applicants' first additional document accepted for filing on 7 March 2025, being a copy of a transcript of the first Tribunal hearing held on 8 September 2020 and marked "Exhibit A1".

(c) Applicants' second additional document accepted for filing on 7 March 2025, being a copy of a transcript of the second Tribunal hearing held on 11 September 2020 and marked "Exhibit A2".

(d) The Court Book, tendered by the Minister and marked "Exhibit R1".

(e) A copy of the "DFAT Country Information Report - Nigeria" dated 9 March 2018, tendered by the Minister and marked "Exhibit R2".

1. I note that the transcripts of the first and second Tribunal hearings were said by the first applicant to have been transcribed by his former solicitors. The Minister did not challenge the accuracy of the transcripts and therefore did not object to their tender.

1. At the hearing before me, the first applicant sought to rely on his further affidavit affirmed on 13 October 2020, which annexed three coloured photographs. The first applicant argued that these photographs were relevant to the application because they evidenced an alleged December 2023 attack referred to in the first applicant's grounds for judicial review. The Minister objected to that affidavit being received into evidence, on the basis that the three coloured photographs allegedly evidencing injuries to the first applicant's brother were not before the Tribunal and were evidence of what the first applicant claimed to be an event that occurred after the Tribunal's decision. The Minister contended that the photographs were not relevant to whether the Tribunal's decision was affected by jurisdictional error, being the only issue before this Court.
2. I rejected the admission of the further affidavit of the first applicant affirmed on 13 October 2020, annexing the three coloured photographs, on the basis that the three coloured photographs were not relevant to any issue for determination and therefore were not admissible: s 55 of the Evidence Act 1995 (Cth).

1. The first applicant filed an application for judicial review in this Court on 15 October 2020. At the hearing, the first applicant sought leave to amend the application for judicial review by deleting grounds one and two and replacing the grounds with the grounds for judicial review set out at [30] of this judgment.
2. The grounds reflect the first applicant's additional arguments raised in a document filed by the first applicant as submissions, accepted for filing on 1 September 2025. The Minister did not oppose leave being granted to the first applicant to raise the 16 grounds. I granted leave to the first applicant to amend the grounds for judicial review as set out at [30] of this judgment. Given the first applicant was not represented by a lawyer, I dispensed with the requirement in r 8.12 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) for the first applicant to file and serve an amended application and note the Minister agreed with that approach.

1. The first applicant's amended application for judicial review raised the following 16 grounds for judicial review:

Ground 1: The Tribunal failed to properly evaluate certain material and documentary evidence provided by the Applicants.

Ground 2: The Tribunal's finding at [107] of its reasons that it "was not satisfied that the First Applicant would be directly politically active on return to Nigeria in a political party" demonstrates a misapplication of the "behavior modification" provisions under s 5J(3) of the Migration Act 1958 (Cth) (Act).

Ground 3: The Tribunal failed to conduct a proper, independent assessment of the Applicants' claims under the complementary protection provisions in s 36(2)(aa) of the Act.

Ground 4: The Tribunal failed to consider and properly apply the "family unity principle in refugee law".

Ground 5: The Tribunal failed to properly consider the impact of the Applicants' mental health conditions on their testimony, particularly regarding memory, consistency and ability to articulate claims.

Ground 6: The Tribunal failed to properly consider relevant country information about Nigeria relevant to the Applicants' protection claims.

Ground 7: The Tribunal made an "error in its assessment of internal relocation".

Ground 8: The Tribunal's decision should be reviewed in light of critical post-decision evidence regarding a violent attack on the First Applicant's brother on 25 December 2023.

Ground 9: The Tribunal failed to consider and properly assess the Second Applicant's "Gender-Based Violence Claims".

Ground 10: The Tribunal erred in fragmenting the Applicants' interconnected protection claims into discrete elements and dismissing each individually.

Ground 11: The Tribunal failed to consider or properly consider Australia's non-refoulement obligations under international instruments beyond the Refugee Convention.

Ground 12: The Tribunal assessed only whether the First Applicant's actual political opinions would cause persecution and failed to consider the critical "reverse-nexus" question of whether persecution might be imputed to the First Applicant based on perceived political opinions regardless of his actual activities upon return.

Ground 13: The Tribunal failed to provide procedural fairness to the Applicants, who were vulnerable Applicants facing "information asymmetry" in the hearing process.

Ground 14: The Tribunal failed to consider and assess whether the Applicants' return to Nigeria would result in serious mental health deterioration constituting "significant harm" under s 36(2A) of the Act.

Ground 15: The Tribunal failed to consider the independent protection claims of the children, being the Third and Fourth Applicants.

Ground 16: The Tribunal failed to adequately consider the economic vulnerability of the Applicants' family.

1. Before considering the grounds for judicial review, I note the first applicant relied on written submissions which consisted of 36 pages, included 16 new grounds for judicial review and referenced numerous citations for case law. The Minister submitted that numerous cases cited fictitious cases. Further, the Minister contended that where the first applicant's written submissions cited real cases, legal propositions were wrongly attributed to those cases. I raised this issue with the first applicant at the hearing, who admitted he had utilised artificial intelligence platforms including ChatGPT and OpenAI, to assist him to prepare the grounds for judicial review and the written submissions. The first applicant said he thought the citations of cases and the propositions of law were correct. The first applicant apologised and said given he was not a lawyer he had no means of checking the citations were accurate. The first applicant persisted in pressing the legal arguments set out in his written submissions.
2. In APT19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 856, her Honour Skaros J made the following observations as to the use of artificial intelligence platforms by litigants in person in migration proceedings at [25]:

Given the complex legal issues that arise in immigration proceedings, it is not uncommon for unrepresented applicants to rely on informal sources of assistance, including friends who may have some legal knowledge and/or online research tools and accessible technology. Unfortunately, this can lead to submissions which have the appearance of legal sophistication, but on closer inspection they lack substance and fail to properly engage with the decision in fact made or identify accurate particulars to substantiate the allegations of legal error. These types of submissions can be time consuming, for both the opposing party (who must address each allegation or ground raised), and for the Court that has a duty to ensure an unrepresented party has had a fair opportunity to present their case, which would, in some cases, entail discussion and an explanation of applicable legal principles and clarification of each allegation/ground advanced to discern whether they raise an arguable ground of jurisdictional error.

1. I also note his Honour Gerrard J's comments in JNE24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1314 (JNE24) at [20] to [24] as to the utility of artificial intelligence in legal proceedings:

[20] AI is increasingly being used as a research tool in litigation. Ultimately, it is likely to prove to be an invaluable tool for both lawyers and self-represented litigants. There is nothing inherently impermissible about using generative AI programs to assist in research. However, not only is it not an appropriate substitute for legal research, it comes with considerable risks which, if not mitigated, have the capacity to lead to actions which could be construed as a contempt of court (as considered in the UK case of Ayinde v London Borough of Haringey [2025] EWHC 1383 (Admin) at [66]-[69] (Ayinde).

[21] The Court does not adopt a Luddite approach to the use of generative AI tools. The arena of migration decisions in this country is byzantine, complex and vast. The Court readily understands why any tool which might assist in navigating through this labyrinth may be attractive. As demonstrated by this, and other recent cases, that attraction is presently a dangerous mirage.

[22] The risks associated with a cavalier reliance on AI were helpfully explained by the UK High Court in Ayinde (at [6]-[8]) in the following way:

In the context of legal research, the risks of using artificial intelligence are now well known. Freely available generative artificial intelligence tools, trained on a large language model such as ChatGPT are not capable of conducting reliable legal research. Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may make confident assertions that are simply untrue. They may cite sources that do not exist. They may purport to quote passages from a genuine source that do not appear in that source.

...

[24] What is common amongst the recent cases is the propensity of what has been referred to as AI hallucination (Wamba Wemba at [8]). There are now a concerning number of reported matters where reliance upon AI has directly led to the citation of fictitious cases in support of a legal principle. The dangers of such an approach are reasonably apparent but are worth stating. First, if discovered, there is the potential for a good case to be undermined by rank incompetence. Second, if undiscovered, there is the potential that the Court may be embarrassed and the administration of justice risks being compromised. Relatedly, the repetition of such cases in reported cases in turn feeds the cycle, and the possibility of a tranche of cases relying upon a falsehood ensues. Further, the prevalence of this practice significantly wastes the time and resources of opposing parties and the Court. ...

1. Whilst I understand the first applicant's use of artificial intelligence platforms in attempting to assist him in this matter, as I emphasised to the first applicant at the hearing, it is important for self-represented litigants to take reasonable care when using such platforms. It is noted that although self-represented litigants do not owe the same enforceable ethical duties as members of the legal profession, litigants in person nevertheless have an obligation to the Court to act consistently with the overarching purpose of the Court, being to facilitate the fair and just resolution of disputes as quickly, inexpensively and efficiently as possible, which requires the self-represented litigant not to present to the Court inaccurate and misleading information. If a self-represented applicant chooses to use such platforms, then it is reasonable that the applicant uses free platforms to check the accuracy of cases, such as "Jade Professional", which is a free professional legal research platform designed to make it easier to find, use, share, and present accurate legal information. In this case, if the first applicant had used the Jade Professional platform, it would have disclosed artificial intelligence hallucinations and would have saved both the Court's time and reduced the legal costs incurred by the Minister in these proceedings. Such wasted costs may be a sound basis for seeking costs against a self-represented applicant above the scale.
2. I adopt the sensible approach taken by Walker JA in Kaur v Royal Melbourne Institute of Technology [2024] VSCA 264 and Gerrard J in JNE24, in not repeating or reproducing the cases in the first applicant's submissions that either do not exist or do not stand as authority for the proposition they are said to support, so as to not contribute to the problem of artificial intelligence platforms inventing case citations.

Ground 1 - Alleged failure to give proper, genuine and realistic consideration to documents

1. In relation to ground 1, the first applicant contended that although the Tribunal at [27] of its reasons at the sixth to ninth dot points referenced the following documents which had been provided by the first applicant, the Tribunal failed to engage meaningfully with the contents of those documents (Tp27.36-28.36 Hearing Transcript Part 1 of 2):

(a) An article by Friday Amobi titled "Gunmen behead APC chief in Rivers", Punch News dated 22 June 2016 (CB 135).

(b) An article by Victor Azubuike titled "Amaechi's loyalist threatens to take laws in his hands if police fails to arrest attackers of farm", Daily Post dated 26 April 2016 (CB 136 and 137).

(c) A letter from Abua Odual USA addressed to the first applicant's brother dated 27 May 2016 (CB 146).

(d) An open letter from Abua Odual USA to the Nigerian president dated 23 August 2016 (CB 147).

1. The first applicant further submitted that the contents of the documents referred to in the preceding paragraph were relevant to supporting his claim as to his political profile (Tp.28.38-29.6 Hearing Transcript Part 1 of 2).
2. Before dealing with this ground for judicial review, it is helpful to identify the relevant legal principles that guide this Court in assessing whether there has been "genuine, proper and realistic consideration" of a matter.

1. The phrase "genuine, proper and realistic consideration" originates from Gummow J's judgment in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at p 292. While the phrase has at times lost support, the important point to note is that it is inadequate to adopt a tick-box mentality or pay mere lip service to a mandatory consideration - there must be "active intellectual engagement" (Campbell v ACT Planning and Land Authority [2024] ACTSC 10 per McWilliam J at [147], citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [31] to [35] and at [45] and [46]; Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [36]).
2. The Full Federal Court (Griffiths, White and Bromwich JJ) in Carrascalao at [120] to [132] found the Minister could not have given "genuine, proper and realistic consideration" to the voluminous brief before him on two visa cancellations in 43 minutes. Carrascalao is authority for the proposition that the threshold for finding a lack of "proper, genuine and realistic consideration" is high ([48]).
3. Carrascalao warned against the use of the label "proper, genuine and realistic consideration" out of context lest it encourages a slip into impermissible merits review ([32] and [34], citing Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ and Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] per Basten JA; see also M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1) at [26]). On the contrary, Flick J in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [45] (citing Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 at pp 135 and 136 per Flick J; not reversed in Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 362 ALR 48 on this point) said the label is a helpful benchmark to ensure adequate consideration of matters.
4. It is for the applicant to shape the decision-maker's consideration of the evidence: Plaintiff M1 at [78]. The delegate must engage in an "active intellectual process" with the applicant's "significant and clearly expressed representations" (Plaintiff M1 at [78]).
5. Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135 at [56] (Basten JA, with whom Leeming JA and Sackville AJA agreed) is authority for the proposition that the required standard of consideration "will depend upon the subject matter and purpose of the consideration, in a given statutory context."
6. In order to determine whether the Tribunal gave proper, genuine and realistic consideration to the documents identified at [36(a)] to [36(d)] of this judgment, it is important to first look at the claims the first applicant made and then look at the contents of the documents in order to consider from the Tribunal's reasons if it discharged its statutory obligations. The Tribunal from [22] to [26] of its reasons set out the first applicant's claims for a protection visa, which were essentially that he feared risk of harm because of his political opinion and profile in Nigeria.
7. It can be seen that the documents identified at [36(a)] to [36(d)] of this judgment were reports as to generalised instances of violence in and around the Abua-Odual area and identified victims other than the first applicant, as follows:

(a) Article by Friday Amobi titled "Gunmen behead APC chief in Rivers", Punch News dated 22 June 2016 (CB 135) referred to some gunmen in military uniforms having killed a former Councillor of Ward 1 in the Abua/Odua Local Government Area and discussed an ambush of a chieftain. The article also said that "the gunmen, however, spared the motorcyclist that carried him. It was reported that the victim was killed while returning from Port Harcourt where an Appeal Court had ruled in favour of his party in a case involving 22 sacked local government chairmen".

(b) Article by Victor Azubuike titled "Amaechi's loyalist threatens to take laws in his hands if police fails to arrest attackers of farm" (CB 136 and 137) referred to widespread violence caused by rival cult groups. The article stated "After respite has been restored in some widely-reported volatile areas in Rivers state, especially in Omoku and Egi, Ogba-Egbema-Ndoni Local government area, the violence in the state is fast spreading to other parts" and "the immediate past executive chairman of Abua-Odual local government area of Rivers, Udi Odum has called on the Rivers State Police Command to take steps towards apprehending the gunmen that attacked his farm at Ogbema in Abua last week". The article also stated "The former council boss who said he witnessed the attack said, 'I reported the matter to the police; I even mentioned the names of the attackers. So I am waiting for the police to respond and if they fail to arrest those that carried out that action, I may take the Laws into my hands.' Recall that some armed men reportedly attacked Opelia Farms Limited in Abua last week" and "Earlier in the same week, gunmen had attacked Okobo, a neighbouring community, killing three young men and destroying properties worth millions of naira".

(c) Letter from Abua Odual USA addressed to the first applicant's brother dated 27 May 2016 (CB 146) stated that the first applicant and his brother had a position in the community as youth education awareness activists and the Abua Odual USA organisation invited the first applicant and his brother to a conference given its view of the significant role the first applicant and his brother played in the community. The Abua Odual USA letter described the Abua Odual USA as a non-profit, non-political organisation formed primarily for the purpose of working with the AbuaOduals leadership and youth at home to bring about cultural, economic, social, and intellectual uplifting.

(d) Open letter from Abua Odual USA to the Nigerian president dated 23 August 2016 (CB 147) which did not identify the first applicant stated information about the Abua Odual USA organisation, described violence and murders that had occurred in the area, identified the names of Abua Odual people who were victims of violence and requested that the president save the lives of the Abua Odual people and other matters.

1. Turning to the reasons of the Tribunal, at [27] of its reasons, it referenced the four documents referred to in the preceding paragraph of this judgment, and summarised the contents of the said documents as follows:

(a) Article by Friday Amobi titled "Gunmen behead APC chief in Rivers", Punch News dated 22 June 2016 (CB 135 referred to at [45(a)] of this judgment) "stating that gunmen in military uniforms killed Allain John-Morrison, a former councillor of Abua. It is stated that the victim was being driven on a motorcycle when he was ambushed, while the driver was spared. The victim was returning from a court hearing in which a court had ruled in favour of the victim's party regarding a case of 22 sacked local government chairmen".

(b) Article by Victor Azubuike titled "Amaechi's loyalist threatens to take laws in his hands if police fails to arrest attackers of farm" (CB 136 and 137 referred to at [45(b)] of this judgment) "stating that, although violence has dissipated in parts of Rivers State, there is growing violence in Abua. It is mentioned that the immediate past chairman of the Abua region has called on police to apprehend gunmen that attacked his farm at Ogbema, Abua. It is stated that the chairman named the attackers, and that he will take action if the police do not. Mention is made of attacks in other farmers in Abua and Okobo".

(c) Letter from Abua Odual USA addressed to the first applicant's brother dated 27 May 2016 (CB 146 referred to at [45(c)] of this judgment) "inviting [the first applicant's brother] and the [first] applicant to attend their 13th annual convention on 1 to 3 July 2016 in Milwaukee. The letter states that the organisation is a non-profit and apolitical organisation with the goal of bringing about cultural, economic, social, and intellectual uplifting. It is stated that the [first] applicant and his brother are invited due to their position in the community and significant role in mobilising and orientating the youth".

(d) Open letter from Abua Odual USA to the Nigerian president dated 23 August 2016 (CB 147 referred to at [45(d)] of this judgment) "The letter outlines current events in Abua, Rivers State, including outbreaks of violence and murders. Mention is made of inactivity of security forces, and lack of water and food for the people in Abua".

1. I find the Tribunal's summary of the relevant documents outlined in the preceding paragraph discloses the Tribunal had read the documents and engaged with their contents. At [101] of its reasons, the Tribunal stated it was satisfied on the evidence the first applicant had been involved in community and youth affairs in his local area. The Tribunal's reasons disclose that it accepted the contents of the 27 May 2016 Abua Odual USA letter referred to at [36(c)] of this judgment. I find the Tribunal did properly, genuinely and realistically consider the document identified at [36(c)] of this judgment in light of the claims made by the first applicant. I note the said letter did not address the question of the political profile claimed by the first applicant or the events claimed by the first applicant to have taken place which gave rise to his protection claims.
2. The documents referred to at [36(a)], [36(b)] and [36(d)] of this judgment referred to generalised violence and were not events specifically connected to the first applicant and were not supportive of his claims of having a particular profile. I note that at [108] of the Tribunal's reasons, it accepted there was evidence including that provided by the first applicant of a degree of political violence in Nigeria. On a fair reading of the Tribunal's reasons, it accepted the contents of the said articles referred to at [36(a)], [36(b)] and [36(d)] of this judgment, which referred to generalised violence. I find the Tribunal did properly, genuinely and realistically consider the said documents in light of the claims made by the first applicant.
3. I reject the first applicant's argument that in order to give proper, genuine and realistic consideration, the Tribunal was required from the contents of the documents referred to at [36(a)] to [36(d)] of this judgment to accept the first applicant would also be harmed as the individuals in those articles had been harmed. This is because in order to discharge its statutory obligation in considering whether the first applicant met the criteria for a protection visa, the Tribunal had to consider whether it first accepted the first applicant's claims, which in this case included a claim as to his political profile. The said documents were not relevant to that question.
4. Accordingly, I find ground 1 does not disclose any jurisdictional error.

Ground 2 - Alleged misapplication of the provisions of s 5J(3) of the Act

1. In relation to ground 2, the first applicant submitted the Tribunal at [107] of its reasons erred in finding it "was not satisfied that the [first] applicant would be directly politically active on return to Nigeria in a political party" because the first applicant did wish to continue being politically active if returned to Nigeria, and therefore the Tribunal misapplied the provisions under s 5J(3) of the Act. This was said to be because at [107] of its reasons, the Tribunal accepted the first applicant had political views and a desire to comment on politics in Nigeria, but determined that the first applicant would not face harm because he would not be "directly politically active" on return to Nigeria and implicitly expected the first applicant to maintain a reduced political profile to avoid persecution (Tp42.30-43.21 Hearing Transcript Part 1 of 2). The first applicant submitted the Tribunal misapplied the "behaviour modification" provisions under s 5J(3) of the Act.
2. Section 5J(3) of the Act relevantly provides that:

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:

...

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

...

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

1. It is accepted that there would have been an error if the Tribunal had in fact made a finding that the first applicant could modify his behaviour and not be politically active on return to Nigeria to avoid persecution, because such modification would have been contrary to s 5J(3)(c)(iii) of the Act referred to in the preceding paragraph. However, I find that the Tribunal at [107] of its reasons was not making a finding implicit or otherwise that the first applicant could take reasonable steps to modify his behaviour on return to Nigeria, but rather I find the Tribunal was making a finding based on the earlier findings at [102] of its reasons, being that it was willing to accept the first applicant had some position in the NDP in the mid-2000's but the first applicant confirmed at the Tribunal hearing that he had distanced himself from direct activity and politics from 2013 prior to leaving Nigeria in 2016, and it was because of that evidence that the Tribunal at [107] was not satisfied the first applicant would on being returned to Nigeria be "directly politically active on return to Nigeria in a political party". Therefore, I reject the first applicant's argument that at [107] of its reasons the Tribunal implicitly expected the first applicant to "modify his behaviour" to maintain a reduced political profile to avoid persecution.
2. Accordingly, I find ground 2 does not disclose any jurisdictional error.

Ground 3 - Alleged failure to properly assess the first applicant against the complementary protection provisions set out in s 36(2)(aa) of the Act

1. The first applicant contended the Tribunal committed jurisdictional error by failing to conduct a proper, independent assessment of the first applicant's claims under the complementary protection provisions (Tp45.32-46.9 Hearing Transcript Part 1 of 2). The first applicant pointed to [118] of the Tribunal's reasons and argued the Tribunal's entire consideration of the complementary protection provisions was as follows, and that such cursory dismissal reveals that the Tribunal failed to properly consider the complementary protection criterion:

In summary, the Tribunal is not satisfied that any of the applicants have a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nigeria, there is a real risk of them suffering significant harm.

1. The first applicant referred to the decision of SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 (SZTAL) (per) where Edelman J at [73] emphasises that complementary protection criterion provides an "additional basis" for a grant of a protection visa "in circumstances where the applicant does not fall within s 36(2)(a)" of the Act.
2. I find [118] of the Tribunal's reasons cannot be taken in isolation and needs to be read in the context of the Tribunal's reasons as a whole. The Tribunal's reasons disclose at [10] that the Tribunal was aware of the statutory scheme and consideration needed to be given to s 36(2)(aa) of the Act, the complementary protection criterion. The Tribunal referred to the provisions of s 36(2)(aa) and importantly that the meaning of significant harm and the circumstances in which a person will be taken not to face a real risk of significant harm, were set out in ss 36(2A) and (2B) of the Act. The Tribunal also attached to its reasons the relevant statutory provisions in full. The Tribunal from [31] to [100] of its reasons considered the first applicant's claims and reached the conclusion set out at [19] and [20] of this judgment. The Tribunal then at [107] of its reasons said given its findings it was not satisfied that "there are political views on the part of the applicant or adverse political attention against him that would result in him facing a real chance of serious or significant harm on return to Nigeria". The reference to "significant harm" is a reference to harm for the purposes of s 36(2A) of the Act set out below, which is a reference to "significant harm" in applying the complementary protection criterion as set out in s 36(2)(aa):

(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.

1. In the migration context, the structure of the provisions for the granting of visas involves either the satisfaction or non-satisfaction of the Tribunal that the applicant meets the visa criteria. Further, in the review process it is for the applicant in migration matters "to put before the Tribunal the material that they wish to be taken into account and to satisfy the Tribunal of the relevant statutory requirements": DCR19 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2021) 289 FCR 346; [2021] FCAFC 229 at [80] (per Bromwich, Anastassiou and Anderson JJ) citing Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (per Davies, Derrington and Colvin JJ). In relation to protection claims, s 5AAA of the Act makes clear that it is the responsibility of an applicant to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim and persuade the Tribunal to reach the requisite state of satisfaction. The first applicant did not put before the Tribunal that he would suffer "significant harm" as set out in s 36(2A) of the Act.
2. Therefore, given the Tribunal's findings that it was not satisfied the first applicant had suffered harm due to his political views as claimed and the first applicant had not otherwise put evidence before the Tribunal to be satisfied that even if the Tribunal did not accept his claims for a protection visa, there was a real risk of significant harm by his removal from Australia to Nigeria, I find it was reasonable that the Tribunal disposed of the complementary protection criterion briefly as it did at [118] of its reasons.
3. Accordingly, I find ground 3 does not disclose any jurisdictional error.

Ground 4 - Alleged failure to consider what the first applicant referred to as "family unity principle in refugee law"

1. In relation to ground 4, the first applicant in his written submissions contended the Tribunal's reasons revealed "a complete failure to consider how the protection claims of each family member might be affected by their membership in a family unit".
2. At the hearing before me, the first applicant argued the Tribunal had an obligation to check how the family would "actually be sustained in the event of their removal from Australia to Nigeria" but failed to do so (Tp49.1-19 Hearing Transcript Part 1 of 2). The first applicant argued that the Tribunal needed to consider that question in relation to determining whether there was "significant harm" for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act and the meaning of "significant harm" as set out in s 36(2A), and under those provisions whether the first applicant and his children would suffer significant harm because if they were returned to Nigeria they would not be able to sustain themselves. As set out at [58] of this judgment, it was for the applicant to put before the Tribunal the material they wished the Tribunal to consider. The first applicant, or for that matter any of the applicants, did not put any evidence before the Tribunal that if they returned to Nigeria, they would not be able to sustain themselves and no claims were made on that basis. Therefore, the Tribunal had no statutory obligation to consider what the first applicant is now putting to the Court, that he and his children would suffer significant harm because they would not be able to sustain themselves.
3. Accordingly, I find ground 4 does not disclose any jurisdictional error.

Ground 5 - Alleged failure to properly consider the impact of the applicants' mental health conditions on their testimony

1. The first applicant argued that the Tribunal committed jurisdictional error by failing to properly consider the impact of the first and second applicants' mental health conditions when assessing their testimony. The first applicant contended that the Tribunal ought to have been aware of the first and second applicants' mental health conditions and that it would impact on their testimony for the following two reasons (Tp51.37-52.3 Hearing Transcript Part 1 of 2):

(a) First, the first and second applicants expressly informed the Tribunal of their mental health conditions (first reason).

(b) Second, it ought to have been obvious during the Tribunal hearing and the questioning of the first and second applicants that they did not have the mental capacity or were not in the right mental state to be able to give testimony (second reason).

1. In relation to the first reason, the first applicant in his written submissions contended the following:

(a) At the first hearing, the First Applicant explicitly informed the Tribunal of his depression, stating: "I have particularly been facing some form of depression that has actually affected my ability to work, for close to nine months... I know I'm actually stable, but I just have some form of this, and that affects me sometimes" (Transcript p.3, lines 28-32); (b) During the second hearing, the Second Applicant explicitly disclosed her mental health difficulties: "I've gone through a lot of depression, which my psychologist helped me heal. I've been under depression phase so some of the information I've been having like... Even when like I've been having my mental and sometimes I can't remember a lot of things" (Transcript p.14); (c) The hearing transcripts reveal that the Second Applicant exhibited profound difficulties in providing coherent answers to basic questions, frequently contradicting herself and appearing disoriented during questioning.

1. At the hearing before me, the first applicant argued that he specifically mentioned during the Tribunal hearing that he had been unemployed for nine months and that his former wife, the second applicant, was the breadwinner of the family, and those factors impacted on the first and second applicants' testimony at the Tribunal hearings (Tp51.37-47 Hearing Transcript Part 1 of 2).
2. In relation to the first and second applicant's mental health condition, the first applicant pointed me to the following exchange with the Tribunal member at the first Tribunal hearing (Tp61.5-62.4 Hearing Transcript Part 1 of 2):

[Tribunal Member]:

All right. Before we start, a standard question I ask before every matter, to both of you, is there anything that either of you are suffering, any difficulties that might affect your ability to talk to me about your claims and answer my questions today?

[Second Applicant]:

What do you mean? Do you mean like hearing?

[Tribunal Member]:

Well like, you don't have any mental health problems or memory problem, medical memory problem?

[Second Applicant]:

No.

[Tribunal Member]:

No. All right. So similarly with you, Mr. [First Applicant]?

[First Applicant]:

I would say, partially.

[Tribunal Member]:

Partially what?

[First Applicant]:

I have particularly been facing some form of depression that has actually affected my ability to work, for close to nine months, right now I haven't actually worked properly. I know I'm actually stable, but I just have some form of this, and that affects me sometimes.

[Tribunal Member]:

All right, so you're suffering from depression?

[First Applicant]:

Yes.

[Tribunal Member]:

Are you seeking medical support?

[First Applicant]:

I do not have any access to Centrelink. We've been disconnected close to seven months right now, so I'm not able to seek any form of support.

[Tribunal Member]:

All right. Are you on medication?

[First Applicant]:

Not at the moment.

[Tribunal Member]:

All right. I'm sorry to hear you've been suffering from that, but is that going to affect your ability to answer my questions, talk to me about your claims?

[First Applicant]:

Not really.

[Tribunal Member]:

All right, thank you...

(Tp2.32-3.39 Exhibit A1)

(Emphasis added)

1. At the hearing before me, the first applicant did not press his submission that the Tribunal ought to have known about his mental health condition because he expressly told the Tribunal member in the exchange outlined in the preceding paragraph that his depression would "not really" affect his ability to answer the Tribunal member's questions (Tp62.11-63.4 Hearing Transcript 1 of 2).
2. In relation to the second applicant's mental health condition, the first applicant also pointed to the following statement made by the second applicant at the second Tribunal hearing (Tp58.8-59.46 Hearing Transcript 1 of 2):

[Second Applicant]:

Yes. First, I would like to say since we've been in Australia, it's been quite a long period of time. And then during this process, I've gone through a lot of depression, which my psychologist helped me heal. I've been under depression phase so some of the information I've been having like... Even when like I've been having my mental and sometimes I can't remember a lot of things and which my psychologist help me out. But the period when I came back, 2014, I met him but because it's a long period of time, and during all this depression and everything, I wasn't able to recollect. When I didn't met him was when I went back to cancel my visa and came back that is when I didn't met him. Then he was already gone to a hotel.

(Tp2.7-14 Exhibit A2)

1. The first applicant contended the second applicant's statement evidenced that she expressly told the Tribunal member she had been going through depression, (Tp58.25-46 Hearing Transcript 1 of 2). The first applicant argued that the Tribunal did not take into account the second applicant's depression and the effect that had on her as an explanation for why her memory was affected, or when considering the second applicant's credibility (Tp59.6-22 Hearing Transcript 1 of 2).
2. I find that the Tribunal member directly asked the first and second applicants questions to ascertain whether either had any mental health concerns that would affect their capacity to give evidence, as set out at [67] of this judgment.
3. I find in relation to the first applicant, the first applicant told the Tribunal at the first Tribunal hearing as set out at [67] of this judgment that although he was suffering from depression, he did not have any mental condition that would affect his ability to answer questions (Tp2.45-3.37 Exhibit A1). Further, there was no medical evidence before the Tribunal or for that matter before me that the first applicant had any such mental impairment. Therefore, I find in relation to the first applicant that the Tribunal reasonably took steps to ascertain the first applicant's mental condition and whether it would impact on his testimony, and proceeded with the hearing and the questioning of the first applicant in light of the first applicant's evidence that he had no relevant impairment.
4. I find in relation to the second applicant, the second applicant told the Tribunal at the first Tribunal hearing as set out at [67] of this judgment that she did not have any mental health problems or memory problems, or any medical memory problems that would affect her testimony (Tp2.30-42 Exhibit A1). However, as can be seen from the exchange at the second Tribunal hearing, set out at [69] of this judgment, the second applicant later attempted to give an explanation about her mental health, stating that she had been through a lot of depression and been under a depression phase for which she had been seeing a psychologist (Tp2.7-14 Exhibit A1). I find the Tribunal put to the second applicant at the second Tribunal hearing that it had concerns about her asserted mental condition as follows:

[Tribunal Member]:

I struggle to accept that you would be confused as to whether in returning to Nigeria for Christmas in December 2014, your husband was present or actually had fled to Abuja. It's a difficult thing for me to accept that you would be confused about that. In the introduction of the hearing, I asked you both if there was any impediments to you giving evidence and you provided no indication of mental health difficulties causing memory loss. Would you like to comment on that?

[Second Applicant]:

Yes. Like I said before, like my husband is here sometimes, I normally ask him a lot of things, especially when it has to do with events because of whatever we've been going on here and all this mental breakdown and all this depression and everything. If I can't remember a scenario that happens, it's because of what I went through and it's on my record how my psychologist was trying to help me, trying to get my head and trying to get my brain under. So if I miss up that point, it doesn't mean I wasn't right or it's just a mix up somewhere I did and-

(Tp3.23-36 Exhibit A2)

1. Further, the Tribunal at [49] to [54] of its reasons said the following:
   1. Thirdly, there is inconsistent evidence as to when the applicant fled to Abuja to go into hiding, and contact with his wife on her return visit to Lagos from her studies in Dubai.
   2. The applicant confirmed in the first hearing evidence that he had given in the interview that he fled to Abuja in February 2015. The applicant indicated that he was in Lagos with his wife when she returned from study in Dubai in December 2014.
   3. In contrast, when the applicant wife gave evidence in the first hearing she indicated at the point she returned to Lagos in December 2014 her husband had already gone into hiding in Abuja approximately two months before.
   4. When the Tribunal put this inconsistency to the applicant he indicated that he has the proper recollection and that his wife's recollection is mistaken.
   5. When the Tribunal put this inconsistency to the applicant wife in the second hearing, she indicated that she was mistaken and that in fact her husband was present in Lagos and had not at that point fled to Abuja when she returned in December 2014. She indicated that the time since these events has affected her memory and the she also has mental health issues requiring her to seek the services of a psychologist.
   6. The Tribunal notes that the applicant wife did not indicate memory/mental health problems at the commencement of the first hearing when asked if there was any impediment to her giving evidence. Nor has evidence of any mental health issues been provided. The Tribunal is not satisfied that mental health issues are an understandable cause of the inconsistency.

1. Therefore, I find that the Tribunal did address the question of whether the mental health issues alleged by the second applicant were a cause of the inconsistency in her evidence, but as disclosed from its reasons outlined in the preceding paragraph of this judgment, the Tribunal was not satisfied that the mental health issues were an understandable cause of her inconsistency and found, as was open to it to find, at [56] of its reasons that the inconsistency undermined the credibility of her evidence.

1. In relation to the second reason, I made it clear to the first applicant at the hearing before me that his argument depended on taking me to references in the transcripts of the two Tribunal hearings, which were tendered at the hearing before me and marked Exhibit A1 and Exhibit A2, and informing me as to precisely why he contended that it ought to have been obvious to the Tribunal that the first and second applicants were impacted by mental health conditions in giving their testimony.
2. The first applicant pointed to the following exchange between the second applicant and the Tribunal member at the first Tribunal Hearing (Tp52.3-55.10 Hearing Transcript 1 of 2):

[Tribunal Member]:

No. Your study didn't finish until April. You say your time of study was from September 2013 until April 2015. And the evidence I got from your husband was that you came for a visit back to Nigeria from December 2014 until January 2015, is that correct?

[Second Applicant]:

December... Can you repeat that?

[Tribunal Member]:

So from December 2014 until January 2015, his evidence was that you came back from a month with the implication that you returned to Dubai to study.

[Second Applicant]:

Because the debt he's been there once, I can't-

[Tribunal Member]:

No, I realize that.

[Second Applicant]:

[inaudible 00:21:14]. So if I came back with that later it could of damaged, we are on break.

[Tribunal Member]:

You were on a Christmas break.

[Second Applicant]:

Yeah. But what I meant that I was coming... Once you have break, I was coming to spend time with the kids and then go back.

(Tp14.16-41 Exhibit A1)

1. The first applicant submitted that from the exchange set out in the preceding paragraph, it should have been obvious to the Tribunal member that the second applicant could not answer basic questions and the Tribunal member should have been able to detect that the second applicant did not have the mental capacity to answer the questions to her (Tp52.12-16 Hearing Transcript 1 of 2). In particular, the first applicant contended as follows:

(a) By the second applicant's statements "can you repeat that?" and "I can't", the Tribunal member should have sensed that the second applicant was not coherent (Tp52.36-53.23 Hearing Transcript 1 of 2).

(b) By the Tribunal member stating "No I realize that" after the second applicant discussed debt, it could be understood that there was a clear disconnect of the discussion and topic being raised by the Tribunal member and the second applicant's understanding (Tp55.7-10 Hearing Transcript 1 of 2).

(c) The second applicant stated "So if I came back with that later it could of damaged, we are on a break", which was incoherent and completely different to what the Tribunal member was asking, evidencing the fact that the second applicant barely understood what was being said and that she and the Tribunal member were not on the same page (Tp53.45-54.16 Hearing Transcript 1 of 2).

(d) The second applicant stated "Yeah. But what I meant that I was coming... Once you have break, I was coming to spend time with the kids and then go back", which was clearly not responsive to what was being asked of the second applicant, and therefore it should have been obvious to the Tribunal member that the second applicant was talking about something completely different and suffering from mental issues, given she could not comprehend what was being asked of her (Tp54.31-55.2 Hearing Transcript 1 of 2).

1. I do not accept the first applicant's submissions and I find on a fair reading of the exchange between the second applicant and the Tribunal member set out at [77] of this judgment, there was some general confusion initially as to the topic being discussed, which the second applicant sought to clarify and the Tribunal member clarified. I do not find that from the said exchange, it would have been obvious to the Tribunal member that the second applicant was suffering from mental incapacity.
2. Turning to the next exchange that the first applicant pointed to, which was as follows (Tp55.14-57.26 Hearing Transcript 1 of 2):

[Tribunal Member]:

No, I'm talking about the travel businesses, the employees there, have they... Did the travel businesses shut before your husband came to Australia? Did he wind them up and shut them, or did they continue once he came to Australia?

[Second Applicant]:

Is when he came to Australia, that is when the farm... Because the travel agency, he can do it online. It wasn't shut, but the farm business, when he came here that's when he-

[Tribunal Member]:

All right, so were there continuing employees in Nigeria, in the travel businesses, after your husband came to Australia?

[Second Applicant]:

After he came, no. After he came, no. It is the farm.

[Tribunal Member]:

All right, so the travel businesses shut before your husband came to Australia. As part of his coming to Australia, he shut his travel businesses.

[Second Applicant]:

No, he didn't shut the travel business. The farm one, after he came, but the travel business, it wasn't shut.

[Tribunal Member]:

Well, were there employees continuing to work for the travel business?

[Second Applicant]:

Yes.

[Tribunal Member]:

The travel businesses remained open.

[Second Applicant]:

The travel business was running. Yeah, the travel business was running.

[Tribunal Member]:

In Lagos and Port Harcourt?

[Second Applicant]:

Yes, Lagos and Port Harcourt. Before he came, yes.

[Tribunal Member]:

Did employees there suffer any difficulties?

[Second Applicant]:

On the traveling business, no. He only told me on the farm employees. Yes.

[Tribunal Member]:

All right, so the travel businesses were running in Port Harcourt and Lagos?

[Second Applicant]:

Yes.

[Tribunal Member]:

The continuing employees didn't suffer any difficulties there, but there were difficulties for the farm employees?

[Tribunal Member]:

Yes.

(Tp28.1-29.17 Exhibit A1)

(Emphasis added)

1. The first applicant contended that the second applicant's response "After he came, no. After he came, no. It is the farm" to the Tribunal member's question alone was evidence the second applicant did not know what she was saying, and was further evidence of her incoherence and mental issues (Tp56.1-4 Transcript Hearing 1 of 2). The first applicant submitted that the Tribunal member then repeated himself, and the subsequent back and forth discussion demonstrated that the second applicant was mentally incapacitated and was not responding as someone in the right mental state would, given her responses were not direct responses to what was being asked of her (Tp56.9-57.26 Hearing Transcript 1 of 2).
2. I do not accept the first applicant's submission because I find it is clear the Tribunal member and second applicant were discussing the two businesses the first applicant owned, being a travel business and a farm business, and the second applicant sought clarification as to which of those businesses the Tribunal member was referring to in his line of questioning, and the Tribunal member sought to clarify which of the businesses she was referring to at points in her testimony.
3. Therefore, I find that the exchanges between the Tribunal member and the second applicant do not evidence that it should have been obvious to the Tribunal member during the hearings that the second applicant did not have the mental capacity or was not in the right mental state to be able to give testimony.
4. Accordingly, I find ground 5 does not disclose any jurisdictional error.

Grounds 6 and 9 - Alleged failure to properly consider relevant country information about Nigeria and the "gender-based violence claims" made by the second applicant

1. The first applicant in his written submissions contended that the Tribunal failed to properly consider country information, being the DFAT Country Information Report - Nigeria dated 9 March 2018 (DFAT Report). A copy of this DFAT Report was not in the Court Book and was tendered by the Minister and marked "Exhibit R2". The first applicant submitted that the second applicant had made a claim of gender-based violence in her protection visa application (CB 48 to 72), and the Tribunal failed to consider parts of the DFAT Report that dealt with gender-based violence and the Tribunal did not consider that claim.
2. I find that the second applicant's claim as articulated in her protection visa application was that she was asserting if the applicants were returned to Nigeria then, because they had lived in a Western country, they would be targeted for harm, including that the second applicant would be "killed by those militants, I will be exposed to rape kidnapping and other atrocities" (CB 67) and would likely experience "harm of raping, kidnapping, killed" upon return (CB 69). The Tribunal in its reasons at [23] articulated this claim, and at [113] to [117] dealt with this claim as follows:
   1. It is claimed that the applicants face harm on return to Nigeria because they have lived in a western country resulting in them being targets for harm. The Tribunal discussed with the applicant and the applicant wife in the hearing the information in the DFAT report which assesses that individuals who return to Nigeria are unlikely to face adverse attention upon return. The report notes that thousands of Nigerians enter and leave the country every day.
   2. The Tribunal put to the applicant and the applicant wife that in the absence of providing any independent information to the contrary, the Tribunal would not be inclined to consider that any of the applicants face a real chance of serious or significant harm based on having lived in a western country.
   3. In response, the applicant indicated that he is particularly at risk because of his political profile. For the reasons indicated, the Tribunal is not satisfied of this.
   4. The Tribunal is not satisfied that the applicants face a real chance of serious or significant harm based on having lived in a western country.
   5. Given these findings, the Tribunal is not satisfied that any the applicants face a real chance of serious or significant harm on return to Nigeria for any of the reasons claimed.
3. I note that the Tribunal's finding at [113] is supported by the DFAT Report, which noted under the heading "Conditions for Returnees" at [5.32] as follows:

DFAT assesses that people who return to Nigeria are unlikely to face adverse attention on their return. Thousands of Nigerians enter and leave the country every day. In 2016 and 2017, thousands of involuntary returnees or failed asylum seekers were returned from the United Kingdom and Europe. DFAT is not aware of any adverse attention or arrests relating to these returns. The NIS is unlikely to be aware of the return of failed asylum seekers.

1. I further note that [3.45] and [3.46] of the DFAT Report provided under the heading "Women" as follows:

3.45 There is no comprehensive set of laws for prosecuting offenders for acts of violence against women. The Violence against Persons Prohibition (VAPP) Act addresses sexual violence, physical violence, psychological violence, harmful traditional practices, and socioeconomic violence. However, unless individual states adopt the VAPP, the provisions only apply in the Federal Capital Territory.

3.46 Women and girls frequently experience gender-based discrimination and violence in Nigeria. Nigeria remains a highly patriarchal society and cultural traditions including forced child marriage, female genital mutilation and so-called 'widowhood practices', which include hair-shaving and confining a woman to the marital home, continue to occur particularly in rural areas. While there are no laws preventing women from participating in public life, Nigeria continues to perform poorly on gender inclusiveness indices. Nigeria ranked 152 out of 187 countries on the 2016 United Nations Development Program (UNDP) Gender Inequality Index (1 being the most equal, 187 being the least). Since the early 2000s, women have held approximately seven per cent of seats in the National Assembly (the House of Representatives and the Senate combined). Female participation in education, at primary, secondary and tertiary levels, is extremely low (see Education). This is particularly the case in the northern states where over 80 per cent of women are unable to read (compared with 54 per cent of men).

1. However, it is evident that [3.46] of the DFAT Report was not referring to rape or kidnapping of returnees from Western countries, being the claim made by the second applicant, and was therefore irrelevant to the claims actually made by the second applicant and I find the Tribunal was not required to consider that part of the DFAT Report.
2. Accordingly, I find grounds 6 and 9 do not disclose any jurisdictional error.

Ground 7 - Alleged failure as to the Tribunal's assessment of internal relocation

1. The first applicant submitted both in his written submissions and orally before me that the Tribunal committed jurisdictional error in its assessment of internal relocation, when it considered that issue at [112] of its reasons. The first applicant contended that the Tribunal "failed to conduct the proper two-step analysis required by law" and referenced the decision of SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 (SZATV), although it was incorrectly cited and the case has two quotes ascribed to it which are not quotes from the said case. I note the majority in that case at [9] to [22] set out the "relocation principle", and noted that in Australia any "principle" respecting "internal relocation" must be distilled from the text of the Convention definition, which was applied by s 36(2) of the Act as a criterion for the grant of a protection visa, and it is well-settled that the requirement that the "fear" be "well-founded" adds an objective requirement to the examination of the facts and that examination is not confined to those facts which formed the basis of the fear experienced by a particular applicant.
2. I note the decision SZTAV was prior to the enactment of s 5J(1)(c) of the Act that applies to this case and concerns the principle of internal relocation.
3. The Minister argued that the Tribunal at [112] of its reasons was not concluding that the first applicant could internally relocate to Lagos to avoid the real chance of persecution.
4. Turning to the Tribunal's reasons at [111] to [112], the Tribunal said as follows:
   1. The applicant has made mention of attacks by Boko Haram not far from where he lived in Abuja. In the first hearing, the Tribunal sought to clarify with the applicant in the first hearing whether he was claiming that he faced a risk from Boko Haram in the south of Nigeria, including his original home area and Lagos. The independent evidence, including the DFAT report, indicates that Boko Haram activity is focused in the north-east of the country. In response, the applicant indicated that he is not claiming to face harm from Boko Haram in his home areas.
   2. As a result, the Tribunal is not satisfied that the applicants face a real chance of serious or significant harm from Boko Haram. This includes on the basis that the Tribunal considers that the applicant will return to live in Lagos where he had previously lived for many years. No other claims of harm have been made on the basis of religion.
5. At [112] of its reasons, I find the Tribunal was stating that it was not satisfied that the applicants would face a real chance of serious or significant harm from Boko Haram including if the first applicant returned to live in Lagos. As noted at [17] of the Tribunal's reasons, the first applicant had given evidence that from September 2012 to March 2016 he lived in Lagos. The Tribunal's finding at [112] was based on the fact that the independent evidence, including the DFAT Report, indicated that Boko Haram activity was focused in the north-east of the country and not in Lagos, which was a place that the first applicant had lived previously for many years. It was open to the Tribunal to find that he may return to Lagos as the first applicant had given evidence he had lived there for many years immediately prior to travelling to Australia.
6. The first applicant contended at the hearing before me that if the Tribunal did not deal with internal relocation at [112] of the Tribunal's reasons then it should have. I accept the Minister's submission that the Tribunal was only required to look at internal location if it was satisfied that the first applicant, in returning to his home area, would have a well-founded fear of persecution. I find the Tribunal reached no such conclusion and therefore it did not have to consider internal relocation.
7. Accordingly, I find ground 7 does not disclose any jurisdictional error.

Ground 8 - Alleged the Tribunal should have reviewed the post-decision evidence regarding a violent attack on the first applicant's brother on 25 December 2023

1. The first applicant in his written submissions alleged that:

The December 25, 2023 attack on the First Applicant's brother constitutes significant post-decision evidence because:

(a) It confirms the original risk pattern: The attack precisely matches the pattern of targeting family members that was central to the Applicant's original protection claims but rejected by the Tribunal; (b) It demonstrates ongoing risk: The attack shows that the risk identified in the original protection claims persists more than three years after the Tribunal's decision; (c) It involves specific targeting: The attackers reportedly were specifically seeking information about the First Applicant's whereabouts, demonstrating that he remains personally targeted by persecutors in Nigeria.

1. Further, at the hearing before me the first applicant submitted the following (Tp16.44-47 Hearing Transcript 2 of 2):

I only reference it as a point to prove that truly the tribunal actually erred by referring the fact that I do not face real harm back home because if this actually happened, if I was back home when this stuff happened, I probably would have been killed by this incident...

1. I find that ground 8 does not raise jurisdictional error because the Tribunal's reasons cannot be assessed for jurisdictional error by reference to events such as the alleged attack on the first applicant's brother more than three years after the Tribunal's decision. The first applicant is effectively asking this Court to engage in a merits review of the Tribunal's decision regarding the alleged incident involving his brother, which the Court has no power to do.

Ground 10 - Alleged the Tribunal erred in fragmenting the applicants' interconnected protection claims into discrete elements and dismissing each individually

1. The first applicant submitted that the Tribunal fragmented the applicants' claims by separating the first applicant's political profile from his community standing, isolated gender-based risks from family association risks for the second applicant and failed to consider how the children's Western acculturation combined with their parents' profiles created a unique risk matrix. I note that one of the cases the first applicant cited to support ground 10 does not exist and the other case has a quote ascribed to it which is not a quote from the said case.
2. I find the Tribunal properly considered the evidence in relation to each of the alleged claims and identified eight discrete reasons set out at [33] to [89] of its reasons for why it formed the view the applicants were not credible in relation to their asserted claims. I find that there was no error in the Tribunal doing so.
3. Accordingly, I find ground 10 does not disclose any jurisdictional error.

Ground 11 - Alleged failure to consider Australia's non-refoulement obligations under international instruments beyond the Refugee Convention

1. The first applicant submitted that the Tribunal committed jurisdictional error by inadequately considering Australia's non-refoulement obligations under international instruments being the 1951 Refugee Convention, particularly the International Covenant on Civil and Political Rights (Articles 6 and 7), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3) and the United Nations Convention on the Rights of the Child (Article 3).
2. I accept the Minister's submission that the Tribunal was not bound to accept the first applicant's claim by reference to international treaties, but was required to consider the requirements under the Act, which incorporated elements of various international treaties. I find that for the reasons set out at [19] and [20] of this judgment, the Tribunal did approach the question as to whether the applicants met the criteria for a protection visa for the purposes of ss 36(2)(a) and (aa) of the Act. However, for the reasons set out at [17] to [18] of this judgment, the Tribunal rejected the applicants' claims on the basis that it had credibility concerns and it did not accept their claims.
3. Accordingly, I find ground 11 does not disclose any jurisdictional error.

Ground 12 - Alleged the Tribunal only assessed whether the first applicant's actual political opinions would cause persecution and failed to consider the critical "reverse-nexus" question of whether persecution might be imputed to the first applicant based on perceived political opinions regardless of his actual activities upon return

1. The first applicant submitted that the Tribunal committed jurisdictional error when it assessed only whether the first applicant's actual political opinions would cause persecution and failed to consider that the first applicant would be perceived to hold political opinions and therefore be at risk.
2. I find the first applicant squarely raised the question that he faced harm due to his political profile. The notion of the first applicant having an imputed political opinion presupposes that he did not actually hold the political opinion but might be thought by others to hold the political opinion. I reject the first applicant's submission that the Tribunal was required to consider the question of whether he faced harm due to an imputed political opinion because in this case I find that the first applicant was saying he did in fact hold the political opinion the Tribunal rejected, and there was no suggestion by him in the alternative that he had a claim on the basis that he was imputed by others to hold a political opinion and therefore would be at risk.
3. Accordingly, I find ground 12 does not disclose any jurisdictional error.

Ground 13 - Alleged failure to provide procedural fairness to the applicants, who were vulnerable applicants facing "information asymmetry" in the hearing process

1. The first applicant argued that the Tribunal "committed jurisdictional error by failing to provide procedural fairness to vulnerable applicants facing significant information asymmetry in the hearing process". The first applicant submitted that the Tribunal knew or ought to have known about the second applicant's mental health issues and did not accord her procedural fairness. The first applicant did not press ground 13 in relation to himself.
2. As I find at [71] to [75] of this judgment, the Tribunal addressed the question of whether the first and second applicants were suffering from any mental conditions that would affect their ability to answer questions at hearing. Further, there was no medical evidence before the Tribunal or for that matter before me that the first and second applicant had any such mental impairment. Therefore, I find the Tribunal reasonably took steps to ascertain the first and second applicants' mental conditions and whether this would impact on their testimony and proceeded with the hearing and the questioning of the applicants in light of the applicants' evidence that they had no relevant impairments.
3. Accordingly, I find ground 13 does not disclose any jurisdictional error.

Ground 14 - Alleged failure to consider and assess whether the applicants' return to Nigeria would result in serious mental health deterioration constituting "significant harm" under s 36(2A) of the Act

1. The first applicant contended that the Tribunal committed jurisdictional error by failing to assess whether the applicants' return to Nigeria would result in serious mental health deterioration constituting "significant harm" pursuant to s 36(2A) of the Act, particularly given their documented mental health conditions.
2. In essence, the first applicant's ground 14 argued that the Tribunal, in considering the complementary protection criterion set out in s 36(2)(aa) of the Act, was required to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm. The first applicant contended that significant harm was defined in s 36(2A) and the Tribunal ought to have considered whether the first applicant would be subjected to cruel or inhuman treatment or punishment on return to Nigeria in that he had a serious mental health condition which would deteriorate.
3. I find that ground 14 does not disclose jurisdictional error for two reasons:

(a) First, there was no evidence before the Tribunal that the first applicant would suffer deterioration in his depression if he was removed to Nigeria.

(b) Second, as set out by the plurality of the High Court in SZTAL (Kiefel CJ, Nettle and Gordon JJ) at [4], "cruel or inhuman treatment or punishment" is relevantly defined in s 5(1) of the Act as an act or omission by which "severe pain or suffering, whether physical or mental, is intentionally inflicted on a person". Therefore, even assuming in the first applicant's favour that there would be a deterioration in his depression if he was removed to Nigeria, this would not be cruel or inhuman treatment or punishment, which requires somebody to intentionally inflict upon him cruel or inhuman treatment or punishment, as the mental condition the first applicant is alleging was something he was allegedly suffering within.

1. Accordingly, I find ground 14 does not disclose any jurisdictional error.

Ground 15 - Alleged failure to consider the independent protection claims of the children, being the third and fourth applicants

1. The first applicant submitted that the Tribunal committed jurisdictional error by failing to consider the independent protection claims of the third and fourth applicants, based on their specific circumstances as Western-acculturated children facing return to Nigeria.
2. The third and fourth applicants did not advance their own claims for protection, as is apparent from their applications for protection visa. In relation to the first applicant's daughter, there was a strike through and no information was provided under questions 87 and 88 headed "Your reasons for claiming protection" (CB 92). Similarly, in relation to the first applicant's son, there was a strike through and no information was provided under questions 87 and 88 headed "Your reasons for claiming protection" (CB 115). I find the children's application was dependent upon the success of their parents in making protection claims.
3. Accordingly, I find ground 15 does not disclose any jurisdictional error.

Ground 16 - Alleged failure to adequately consider the economic vulnerability of the first applicant's family

1. The first applicant argued that the Tribunal committed jurisdictional error by failing to adequately consider the economic vulnerability of his family and how their economic vulnerability would affect their ability to safely relocate or re-establish themselves in Nigeria. The first applicant asserted that he was out of work for nine months.
2. I find that ground 16 does not disclose jurisdictional error because the first applicant did not make a claim to fear harm on the basis of economic vulnerability, and any such claim did not arise squarely on the material before the Tribunal.

1. Given the first applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error (BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]). I have not identified any such jurisdictional error.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.