1501160 (Refugee)

[2017] AATA 3025

1501160 (Refugee) [2017] AATA 3025 (15 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501160

COUNTRY OF REFERENCE:                  Nigeria

MEMBER:Rachel Westaway

DATE:15 December 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 15 December 2017 at 2:25pm

CATCHWORDS
Refugee – Protection visa –  Nigeria – Social group – Bisexual – Harm from family – Ongoing legal and societal discrimination – No State protection – Would have to modify behaviour

LEGISLATION
Migration Act 1958, ss 5(1), 36(2)(a), (aa), (b), or (c), 362A and 2B, 65, 91R, 91S, 91R(1), 91R(1)(a), (b) or (c), 91R(2), 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Nigeria, applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 9 March 2017 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by her lawyer.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether the applicant is bisexual and meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

21. The applicant claimed in her protection visa application that she left Nigeria as there was a severe threat to her life. She stated that she had previously attempted to leave but her only way was with a student visa.

    ·     [In] December 2011 her family threw a knife at her because they heard she was bisexual.

    ·     She fears being sent to jail under a Sharia Court or stoned. The harm she fears is from her brother and her father.

    ·     She claims that she discovered her sexuality in 2008 and met [Ms A] at a party. The relationship developed. Her family became suspicious and asked that she break the relationship off and that it was an abomination and would bring shame to the family and not accepted in Christianity.

    ·     The relationship continued and at the end of 2011 after returning home in the evening her father smacked her and came at her with a knife which grazed her right thigh. Her mother tried to intervene.

    ·     Her father [belongs to] the Pentecostal Church and this has brought great shame.

    ·     The relationship with [Ms A] has ended as she was upset that she was not told about the applicant leaving for Australia.

    ·     The applicant’s father “shrugged his shoulders” when the applicant told him she was going to Australia.

    ·     She cannot relocate as her father and brother might kill her and each part of the country has a different culture and she would find it difficult to be accepted.

    ·     She has not had any contact with her brother and her father but received a threatening text message from her brother [in] March 2014.

    ·     She claims there is no legal protection for the LGBT community in Nigeria.

22. The application was refused on the bases that the delegate did not accept the relationship with [Ms A] and stated it was implausible.

23. The applicant provided the Tribunal with a statutory declaration from herself and a friend called [Ms B]. [Ms B] also attended the hearing to provide oral evidence.

24. The applicant attended a hearing at the Administrative Appeals Tribunal and provided the following evidence:

25. The applicant is from a family of [number] children – [composition]. The applicant is the [status] born into the family. Her parents are still alive. The applicant’s mother is a [occupation] and her father [occupation]. The applicant’s father would travel to [overseas] for his business but this was prior to having children. Her father is [age] and her mother is [age]. She speaks to [a] sister and has briefly spoken to her mother who is a housewife.

26. The applicant came to Australia [in] July 2012. It took her less than a year to come to Australia.  The applicant was surfing the web looking at places to go to such as the [named countries] and then Australia but she didn’t want to go to places where she had family members due to her situation so she chose Australia because it was far away.

27. She applied for her visa herself. She was [age] and working as a [occupation] in Nigeria in [certain field].

28. She had attained an equivalent of a [qualification] in Nigeria. When she came to Australia she studied a [course] and then a [further course]. She works in [Workplace 1] and in [another workplace]. She confirmed that she has never returned to Nigeria and has no interest in returning.

29. She said that she lived with [Ms B] for three years until October 2016 because of her job. In January 2017 a Nigerian couple moved in. Her Uncle was listed as her financial supporter however she said he stopped providing her with money as soon as she came to Australia. He was to send $[amount] every semester. She said she was scared what her parents may have said to him so she did not pursue it. She explained that that is why she must work in order to pay her school fees. She worked at [Workplace 1] and arranged to pay the school every fortnight for her fees. She said that put her case to the course provider and they allowed her to pay every fortnight.

30. The Tribunal asked the applicant why she chose to work in [Workplace 1] and more recently have two Nigerians move in given she claims to be a private person and does not want to discuss being bisexual. She said she was desperate for money and got this lead and in regards to the lady she is living with it is just a temporary arrangement and they met because the applicant’s friend gave the couple her number.

31. The applicant is afraid that if she returns to Nigeria she will be killed. She comes from the northern part of Africa and she risks Sharia law. Her brother and her father told her that she is better dead. The applicant stated that she believes she will be targeted because she is bisexual.

32. She said that all over Nigeria there are many cultures that oppose LGBT community. She gave the example of twins being killed. She stated that she is worried she is from a large family and she is unsure who she can trust.

33. In 2008 she claims she was prompted by [Ms A] her girlfriend to “go on an adventure”. They caught up at a [venue]. She said that [Ms A] was very friendly and loveable. She lived alone in a rented unit because her family lived in the countryside. After two or three months they became intimate.  

34. The Tribunal asked the applicant how the relationship developed so quickly given it is unlawful in Nigeria. She stated that [Ms A] lived alone so was more comfortable. She was open minded. The applicant stated that she gave her love and attention and she never had this before. She claims she grew up with no affection. She said that [Ms A] has never really liked men and that she would protect her and keep the relationship a secret.

35. She was asked whether she understood her feelings or could explain why she felt attracted to women. She said that she went to an all-girls school and she had limited exposure to the opposite sex. She said that her only exposure was male family members and her father and brother and a former male partner were abusive to her.

36. She was becoming educated and she questioned why she had to be a mother and wife. She stated that she was shocked when her father threw a knife at her.

37. She explained that her family had met [Ms A] and she was introduced as a friend and work colleague. She said her family noticed and commented that their closeness was unusual. She said she told [Ms A] about her mother’s concerns and so she reduced her visits to the applicant’s house.

38. The applicant explained that it came to a head one day when her brother said to [Ms A] as she arrived that she must leave and never come back or something drastic will happen. He turned to the applicant and told her never to let her come back and stop the relationship The following day [Ms A] and the applicant met at work and they agreed only to meet at [Ms  A’s] house and after work and never at her home again.

39. The Tribunal explained it was unusual given her conservative family she would take [Ms A] home and be affectionate. She said because she introduced [Ms A] as a work friend and when they would go to her bedroom the door was closed and she simply didn’t have a pre-thought that her parents or family would go that far as to harm her based on suspicions. She said her relationship with her brother was always bad and he was aggressive.

40. Her brother was the head of the family when her parents weren’t there and she said she had to wait on him and bring him food and look after him. Therefore she simply didn’t feel she could stand up for herself when he sent [Ms A] away. After that he would constantly check on her, look at her phone and ask her where she was going.

41. After a couple of weeks the applicant came home late one night and her brother asked where had she been and the applicant stated “where do you think”.  She said that all of the girls in the family must be home by 6pm. The applicant came home at 7pm. Her brother then told her father when he came home that night.  The applicant said her father called her and said is it true what your brother said and she didn’t answer. Then he said answer or I will beat you mercilessly. She didn’t answer again and so he stated she must end the relationship. This was in 2011.

42. On another occasion around 2 months later she came home at 9pm. She wasn’t expecting to see her father but he was there and he was sitting in the living room watching news.

43. The applicant was worried and her father said “where were you”? Then he wacked her against her face. Her family were in their rooms. He went to the kitchen and grabbed a knife and she screamed and her mum was grabbing her father.  He stabbed her in the leg and her mother tried to help the applicant dress the wound. She couldn’t go to the hospital because in Nigeria a gun or knife wound requires a police report and she did not want to risk this.

44. The applicant explained that she had run outside when the attack happened. Her mother dressed the wounds outside and then went inside to calm her father down and negotiate the issue. Her mother told her to come inside because she said she had an assurance from her mother that her father would not touch her. The Tribunal asked the applicant if her siblings came out to help her and she said they stayed in their rooms. This occurred in October 2011.

45. The Tribunal expressed concern that this seems unusual and she stated that she has no idea why they didn’t come out or counteract her father’s actions. The following morning the applicant said she called [Ms A] and told her about the knife attack and she remained at home. Her father went to work.

46. The applicant stayed in her room. Her sister came out and asked her what the problem was. She said her sister said she must stop seeing [Ms A]. She said she never imagined the consequences.

47. The applicant relayed to the Tribunal her analogy of Pride and Prejudice when Chris wanted to marry his gay friend, his family did not approve but it went ahead. She thought it would be like this. She said that from then on, the frequency in which she saw [Ms A] was less and the curfew was never broken again however their relationship continued.

48. She stated that that her family didn’t suspect anything because she stayed out of their way. She rarely saw them. By this stage she started to look for opportunities to go overseas. She didn’t think [Ms A] would want to go. She thought their lives would be ok and she just didn’t know what her views would be. [Ms A] would send money home to her family and the applicant wasn’t sure whether [Ms A] could afford to go and she didn’t want to hear no.

49. The relationship was a sexual relationship and they were in love with each other. The Tribunal explained that it is hard to understand why she would not discuss her plans to move overseas with [Ms A]. The applicant accepted this and said that it led to their breakup. She said it was a bad breakup because she only told her when the visa was issued and she told her at home. The Tribunal noted that the applicant presented as quietly determined and independent.

1. The Tribunal asked the applicant why she knows that she identifies as bisexual. The applicant said that she rejects her upbringing where she was taught 100% submission. She felt tied down. She had a freedom of speech in her relationship with [Ms A]. She couldn’t understand that she was sent to school to be educated but then was expected to be subservient. She said she was in a relationship with a male but there was a drift towards women. [Mr B] her former partner was abusive and would scream at her. He would physically attack her and he had other partners and he didn’t care about her feelings.

2. The applicant explained she continues to see the qualities in woman that are different from men and she finds these attractive. She stated that she has never googled LGBT Nigerian or African groups – she said that never dreamt that people like her would or could come out. She said that she is able to explore her freedom and choice. She said that she listens to Joy FM and goes to clubs which are strictly for lesbians and gay people.

3. The Tribunal interviewed the applicant’s witness. The applicant had previously discussed with the Tribunal a male whom she had a short term relationship with in Australia and the witness provided corroborating evidence.

4. The witness confirmed her name as [Ms B] and said she met [the applicant] in 2013 when she was sharing with her cousin in [suburb]. [Ms B] was here for a holiday. She grew up in [country] but was born in Nigeria. She confirmed she has returned to Nigeria.

5. She said that the applicant is scared about her sexuality and she saw the scar on her leg and asked her and then eventually she opened up about it. She told her in early 2015 that she was bisexual and that her father had stabbed her. She confirmed that she accepts her friend as bisexual.  She said she would not be accepted in Nigeria and she has seen online that it isn’t safe. She said that she actually confronted the applicant because she picked up her behaviour. She said that her own sister is also in that situation. She said there were little things such as the way she dresses and the fact that she never comments about men.

6. [Ms B] said she is not sure whether the applicant is in contact with anyone in her family. She said that it is a hard situation and she feels she can’t be in a committed relationship because she is not sure where she will be. She is scared to be in a relationship.

7. COUNTRY INFORMATION – DFAT Nigeria, 10 February 2015

   Sexual Orientation and Gender Identity

   1.1     Homosexual people face significant legal and societal discrimination and violence in Nigeria. Few individuals live openly as Lesbian, Gay, Bisexual, Transgender or Intersex (LGBTI).

   Human Rights Defenders

   1.2     A number of domestic and international human rights organisations operate throughout Nigeria.  There have traditionally been less organisations operating in northern Nigeria compared to the south. Human rights defenders are generally able to function independently and without interference in terms of their establishment, funding and operation.  A number of human rights organisations and high profile individuals have faced harassment from the Nigeria Police Force (NPF) and the Department of State Services (DSS), also known as the State Security Service (SSS), the primary domestic intelligence agency in Nigeria, when reporting on sensitive issues including military operations against Boko Haram, militias in the south and conflicts between Muslim farmers and Christian ‘settlers’ in the middle belt. 

   1.3     Many human rights defenders often criticise government officials in relation to corruption. Human rights defenders working on women’s issues, particularly in Muslim communities, sometimes face a level of mistrust from the community. Very few non-government organisations work directly on or speak openly about LGBTI issues in Nigeria. The majority of organisations working on issues related to HIV have re-badged their activities following the introduction of the Same Sex Marriage (Prohibition) Act 2013 in early 2014 (see ‘Homosexuality – Official Discrimination’, above). While organisations have changed some of their practices, credible local sources advise that this work continues unfettered.

   1.4     Credible local sources advised that high profile human rights defenders were occasionally questioned by members of the DSS after publishing sensitive material.  Individuals were asked to attend a DSS office for a discussion which commonly involved a broad ranging interview in relation to their organisation, their career and personal history, including details about their family. Photos and fingerprints were often taken as part of this process. Individuals were generally released without charge.

   1.5     DFAT assesses that human rights defenders covering sensitive matters may be subjected to low levels of harassment or intimidation by the DSS. Credible local sources advised that human rights defenders were rarely harassed by the NPF. Credible local sources further advised that a small number of high profile human rights defenders had been prevented from leaving Nigeria by Immigration officials. Such interference occurred when individuals intending to travel had publically announced their intentions to protest domestic campaigns overseas. DFAT is not aware of instances of human rights defenders being prevented from leaving or entering Nigeria without the existence of deliberate media publicity. Intimidation by the DSS was commonly targeted at prominent figures within an organisation.

   1.1     Some journalists practice self-censorship on sensitive political and social issues, particularly state-instigated violence, LGBTI issues, or environmental damage related to the resources industry in southern Nigeria. The main concern for the Nigerian news media is the low level of investigative journalism skills.

   Sexual Orientation and Gender Identity

   1.2     Homosexual people face significant legal and societal discrimination and violence in Nigeria. Few individuals live openly as Lesbian, Gay, Bisexual, Transgender or Intersex (LGBTI).

   Official Discrimination

   1.3     Homosexual acts are banned under state and federal laws. The federal Same Sex Marriage (Prohibition) Act 2013, which came into force in January 2014, imposes sentences of up to ten years for individuals who engage in homosexual sex and fourteen years for individuals who enter into a same-sex marriage or civil union (and ten years for wedding guests). Public displays of same-sex behavior attract a ten year jail term. Failure to report the existence of a homosexual individual to authorities attracts a five year jail term.  It is also illegal to register, operate or participate in gay clubs, societies or organisations and attracts a ten year jail term.  In the twelve northern states applying Sharia law, homosexual acts can attract the death penalty.

   1.4     The constitutionality of the Same Sex Marriage Act was challenged in the High Court of the Federal Capital Territory (Abuja).  The Court decided on 22 October 2014 that since the plaintiff, a married heterosexual man, had not suffered as a result of the law, he did not have standing to challenge the law on behalf of the LGBTI community. The case was subsequently dismissed by the High Court.

   1.5     While contributing to a climate of intolerance, federal and state Sharia laws against homosexuality are infrequently applied in practice.  Of the two legal systems, Sharia was more likely to be applied. In January 2014, the Sharia court in the mid-north state of Bauchi sentenced a twenty year old man convicted of sodomy to caning. Credible local and international sources report that capital punishment has not been applied under Sharia for homosexual acts since 2003. Few cases have been tried in civil courts under federal law and there is usually very little attention in the press and among the public regarding these cases (see ‘Other Groups – Media’, below).  Male homosexuals are more likely to face official attention. However suspected lesbians have been arrested. In May 2014, 26 suspected lesbians were arrested for alleged homosexual sex at a bar in Delta State.  Several local media sources reported that the police intended to charge the women however DFAT is unable to determine if the women were convicted or sentenced.

   1.6     The federal same sex marriage act also provides a ten year prison sentence for anyone who organises or takes part in a meeting that discusses HIV.  While there is little evidence of this offence being enforced, credible local sources suggest the threat of legal action alone is responsible for a drop in homosexual men attending educational sessions on HIV. International non-government organisations have re-badged their programs in order to continue providing assistance to individuals living with HIV.

   1.7     Despite the low levels of official enforcement of various legal provisions, DFAT assesses homosexuals in Nigeria face high levels of legal discrimination under federal and state-based Sharia law.

   Societal Discrimination and Violence

   1.8     Homosexuality is widely opposed across all socioeconomic groups and is considered to be alien to traditional African culture.

   1.9     Individuals discovered to be LGBTI face societal isolation and discrimination. As a result, members of the LGBTI community commonly hide their sexuality and often face significant pressure to marry individuals of the opposite sex. Credible local sources reported instances of young men being ostracised and thrown out of their family home once their homosexuality became known. Individuals accused of homosexuality often lose their jobs and are forced to leave their village to survive.

   1.10    Credible local non-government organisations reported a spike in attacks against homosexuals, particularly in northern Nigeria and Abuja, following the introduction of the Same Sex Marriage (Prohibition) Act 2013 in early 2014. Credible local and international media sources reported that a number of individuals were lynched (hung) by locals in northern states in January 2014. The frequency and seriousness of these attacks was considered by credible local sources to be unusual in Nigeria’s recent history. These attacks have significantly reduced since early 2014.

   1.11    DFAT assesses that members of the LGBTI community face high levels of societal discrimination in Nigeria. Individuals are forced to hide their sexuality to avoid discrimination and violence. These risks increase in the northern states, particularly those applying Sharia law.

   REASONS AND FINDINGS

8. The Tribunal accepts on the basis of the evidence before it, including the applicant’s passport, that the applicant is a national of Nigeria. The Tribunal has assessed the applicant’s claims against Nigeria as her country of nationality for the purposes of the Convention and her receiving country for the purposes of s.36(2)(aa).

9. The Tribunal finds that the applicant’s claims about having to suppress her sexual orientation and identity due to fears of persecution are consistent with the above country information.  As such, the Tribunal finds that bi-sexual people are a particular social group as defined by s.5L of the Act as the characteristic of an attraction to women and men is shared by each member of the group; and the applicant shares this characteristic; and the characteristic is an innate or immutable characteristic and is so fundamental to the member’s identity or conscience; the member should not be forced to renounce it; and the characteristic distinguishes the group from society and they fear persecution.

10. The Tribunal accepts that the applicant was stabbed by her father and ostracised by her family and feared further harm and that she had to modify her behaviour so as to ensure that others are not aware of her sexuality in order to avoid harm.

11. The Tribunal has considered the applicant’s claims in the context of the country information as set out above.  The Tribunal finds that the country information is indicative of ongoing discrimination against LGBTI people in Nigeria.  Importantly, while discrimination of itself may not meet the threshold of serious and significant harm, the country information states that homosexual acts are banned under state and federal laws. Despite the low levels of official enforcement of various legal provisions, DFAT assesses homosexuals in Nigeria face high levels of legal discrimination under federal and state-based Sharia law. The Tribunal finds that in this context, the authorities will not protect the applicant from intimidation, physical harm or hate crimes. 

12. The Tribunal further finds that were the applicant to return to Nigeria she would need to modify her behaviour to ensure any bisexual relationship was carried out in secrecy.  Section 5J(3) requires a person to take reasonable steps to modify their behaviour, but specifically excludes a modification that would conflict with a characteristic that is fundamental to their identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation.  The Tribunal accepts that the applicant is bisexual and the Tribunal finds that a modification of her behaviour to avoid a real chance of persecution would violate this exception and require her to modify a fundamental characteristic of her identity and to conceal an innate or immutable characteristic and her true sexual orientation and gender identity.

13. On the evidence available to the Tribunal, the Tribunal finds that there is a real chance of the applicant suffering serious harm for reasons of her sexual orientation and relationship in the form of high levels of legal discrimination, societal discrimination and violence if she were to live openly as a bisexual.  The Tribunal further finds on the country information that such threat of serious harm would not be confined to one particular place in Nigeria but is present throughout the country. 

14. The Tribunal is satisfied that the applicant would not be able to access effective protection measures if returned to Nigeria now or in the reasonably foreseeable future.  The Tribunal is, further satisfied that the applicant’s particular social group being bisexuals is the essential and significant reason for the persecution and that the persecution involves ‘serious harm’ as it amounts to violence and high levels of legal discrimination as listed in subsection s.5J(5) and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).

15. Finally, the Tribunal finds that there is a real chance that the applicant will suffer persecution for reasons of their membership of the particular social group of bisexuals if she returns to Nigeria now or in the reasonably foreseeable future.

    CONCLUDING PARAGRAPHS

16. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Rachel Westaway
    Member