1501797 (Refugee)

[2017] AATA 2658

1501797 (Refugee) [2017] AATA 2658 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501797

COUNTRY OF REFERENCE:                  Nigeria and Japan

MEMBER:Nora Lamont

DATE:6 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first and second named applicants Protection visas.

The Tribunal sets aside the decisions refusing to grant the third and fourth named applicants protection visas and substitutes a decision that their protection visa applications are not valid and cannot be considered.

Statement made on 06 November 2017 at 9:45am

CATCHWORDS

Refugee – Protection visa – Nigeria – Japan – Children dual Nigerian and Japan citizens – Social group – Family violence – Attempted kidnapping in Nigeria – Refuses to perform female circumcision – Religion – Christian – Fears Boko Haram – Failed asylum seeker from the west – Naturalised Japanese citizen – African in Japan – Experienced racial discrimination in Japan – Medical condition – Inconsistent claims for leaving Japan

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a)-(b), 5J(1), 5J(2),32(2), 36, 36(2)(a)-(c), 36(2A)-(2B), 45-48A, 65, 91N (1), 91P, 91Q, 499,

Migration Regulations 1994, Schedule 2 r 2.07, Schedule 1

CASES

MIAC v SZQRB [2013] FCAFC 33

MIMA v Kundu (2000) 103 FCR 486

SZGME v MIAC (2008) 168 FCR 487

SZOAU v MIAC (2012) 199 FCR 448

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (primary applicant) claims to be a citizen of Nigeria. The second named applicant claims to be a citizen of Japan.  They applied for the visas [in] May 2013 and the delegate refused to grant the visas [in] January 2015.

3. The applicants appeared before the Tribunal on 28 March 2017 and 26 September 2017 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

Validity of the children’s application

1. The third and fourth named applicants are the first and second named applicant’s children.

2. The older [child] was born in Japan on [date] and holds a Japanese passport. The younger [child ] was born in Australia on [date].

3. The children are dual nationals. As their father is a Japanese national, they acquired Japanese nationality at birth pursuant to Article 2 of the Nationality Act of Japan. As their mother is a Nigerian national, they also acquired Nigerian nationality at birth pursuant to section 25(1)(c) of the Nigerian Constitution. As the children are dual nationals, they are unable to make a valid application for a protection visa pursuant to section 91N (1) of the Migration Act 1958.

4. The Tribunal notes that the applicant’s third child [was] born in Australia on [date]. Her parents sought to make a separate protection visa application which was deemed to be invalid pursuant to s.91P of the Act by a delegate and therefore this child is not an applicant in this review.

5. Although the delegate made a decision to refuse to grant the third and fourth applicant’s visas, the issue in this case is whether there is even a valid visa application that may be considered. This is because the information before the Tribunal suggests that the applicants are nationals of more than one country.

6. If there is a reviewable decision but the visa application is not valid, the Tribunal can consider the review application, but cannot make a decision on the merits of the visa application: MIMA v Li; MIMA v Kundu (2000) 103 FCR 486; see also SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30].

7. The Act and the Migration Regulations 1994 (the Regulations) prescribe certain requirements for the making of a valid application for a visa: ss.45 to 48A of the Act and r.2.07 of the Regulations. Schedule 1 to the Regulations also sets out certain matters relating to the making of a valid protection visa application. An application for a visa is a valid application if, and only if, it is made in the way required by the Act and the Regulations: ss.45 to 48A of the Act.

8. An application for a protection visa is valid only if it is not prevented by s.91P of the Act: s.46(1)(d). Section 91P provides that if Subdivision AK of the Act applies to a non-citizen the application is not a valid application. Subdivision AK applies to a non-citizen if, at the relevant time, the non-citizen is a national of two or more countries: s.91N. The Minister has a personal discretionary power to determine that s.91P does not apply to an application if the Minister thinks it is in the public interest to do so: s.91Q.

9. Whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. The word ‘national’ in s.91N is not to be construed as involving more than the fact of nationality and no additional enquiry into the non-citizen’s ability to avail himself or herself of protection is to be made, beyond that fact: SZOAU v MIAC (2012) 199 FCR 448.

10. As the third and fourth named applicants are nationals of more than one country at the time of making the application, and the Minister has not exercised his discretion to determine that s.91P does not apply, the applicants are prevented from making a valid visa application.

11. The third and fourth named applicants (the children) have dual Nigerian and Japanese citizenship. The Tribunal finds that after taking into account the above considerations that it sets aside the decisions refusing to grant the third and fourth named applicants their protection visas and substitutes a decision that their protection visa applications are not valid and cannot be considered.   

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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).

3. 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.

1. 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’).

2. 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.

3. The issue in this case is whether Australia owes the applicant parents protection obligations as refugees, or otherwise complementary protection provisions apply. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Nationality and right to enter and reside in a third country

1. The first named applicant (hereafter the applicant) presented her passport to the delegate at her protection visa interview. The department found that with no evidence to the contrary the applicant is a citizen of Nigeria. The Tribunal accepts the applicant is a national of Nigeria.

2. The applicant did hold a temporary spouse visa enabling her to reside in Japan however this expired [in] February 2014. Information on the Japanese Ministry of Foreign Affairs website indicates she now has to apply for another visa if she wishes to reside in Japan. On this basis the Tribunal finds she does not have an existing right to enter and reside in Japan. The second named applicant told the Tribunal that he cannot sponsor his wife for another spouse visa in Japan because he is outside of Japan, has no current employment in Japan and therefore cannot provide a guarantee to the wife for the spousal visa. 

3. The second named applicant claims he acquired Japanese citizenship in 2007 and that he renounced his Nigerian citizenship at that time. The applicant presented his passport to the delegate at his protection visa interview and the department found that with no evidence to the contrary the applicant is a citizen of Japan. This claim is consistent with information in the Nationality Act of May 4 1950, that Japanese nationals over the age of 22 are not allowed to hold dual nationality. The Tribunal accepts the second named applicant is a national of Japan and the Tribunal is satisfied that the second named applicant renounced his Nigerian citizenship, and he does not have a current right to enter and reside in Nigeria or any other country.

Economic Community of West African States (ECOWAS)

1. The Tribunal notes that Nigeria is a member of the Economic Community of West African States (ECOWAS) and therefore the applicant as a Nigerian national may have a right to enter and reside in another ECOWAS member country, under Section 36(3) of the Act.

2. The Tribunal notes the DFAT Country Report, Nigeria, 10 February 2015, which states:

5.28     Nigerians can freely enter the fifteen other ECOWAS (Economic Community of West African States) countries with a Nigerian passport or an ECOWAS Travel Certificate. Nigerians also have a right of residence in all ECOWAS nations. [1]

[1] DFAT Country Report, Nigeria, 10 February 2015

1. Nigerians have additional privileges provided under the Economic Community of West African States (ECOWAS), a regional grouping of fifteen African nations focused on economic integration. ECOWAS gives Nigerians freedom of movement and residency in the fourteen other ECOWAS nations.

2. There are 15 member states of ECOWAS including Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. The Tribunal has considered information from a number of sources in respect of ECOWAS, including the rights of nationals of member nations to enter and reside in member countries.[2]

   [2] The ECOWAS Protocol 1979: Revised Treaty of the Economic Community of West African States July 1993: COISS Research Response CI150325110636777 April 2015: UNHCR January 2011 ‘Protecting Refugees and Other Persons on the Move in the ECOWAS Space’ Adepoju, A, Boulton, A & Levin, M 2010, ‘Promoting integration through mobility: Free movement under ECOWAS’ -

3. The ECOWAS treaties and protocols provide member states with formal guarantees of free movement and residency between countries within the ECOWAS region.[3] The ECOWAS protocols permit nationals of ECOWAS countries visa-free entry and the right to work and reside in all ECOWAS countries provided they have valid travel documents, an international health certificate and are otherwise not inadmissible.[4] However, reports indicate that some ECOWAS member states may not adhere to the full freedom of movement and rights outlined in the protocols due to incompatibilities with their own domestic laws. 

   [3] ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697,  p.23, < of "Across Artificial Borders: An assessment of labour migration in the ECOWAS region" - Liberia country report’, ACP Observatory on Migration, 1 January 2014, CIS2F827D92317, ‘Protecting refugees and other persons on the move in the ECOWAS space’, IOM and UNHCR, 1 January 2011, CIS22697,  p.42, >

   Whilst such country information indicates that ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, it also suggests that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment, and extortion on the part of member nations.  For these reasons the Tribunal is not satisfied that the applicant has a right to enter and reside in another country based on Nigeria being a member of ECOWAS. 

Refugee Assessment

1. The applicant confirmed to the Tribunal that her parents live in [Town 1] which is a small town in Anambra state in Nigeria. Her father was [self-employed] but is now retired. Her mother [works] in a government office. She has [several siblings] still living. [One] brother, [Mr A] died in 2012. His twin brother, [Mr B], lives with her parents in [Town 1]. Her other siblings live in Lagos. Two sisters are married. Her older sister works in [a certain] role. Her younger sister and two other brothers live with her married sisters. One brother is studying [a degree] and the other is studying [another course]. Her parents own a house in [Town 1] and a farm about [distance] from [Town 1].

2. The applicant obtained a [Diploma] in Enungu state in 2005 then [served in the community]. She worked in [in] Lagos between 2007 and 2009, living with a sister who had recently married but had no children. 

3. The second named applicant told the Tribunal his parents are deceased. He has a brother and sister in Lagos. His brother, who is married, is a [occupation]. His sister, who is divorced, is a [professional]. He began university in Nigeria but dropped out and worked for his brother. He went to Japan in 1993 [for a business trip] for two months. He returned to Japan in 2000 and married a Japanese woman. He became a Japanese citizen in 2007 and divorced the same year.

4. The applicants met in Lagos in 2008. Their families knew each other in [Town 1]. They had a traditional wedding in Nigeria in 2008 and a civil wedding in Japan in 2009.  The applicants arrived in Australia in September 2011 on the second named applicants student visa. The applicants did not apply for a protection visa until [May], 2013.

5. The second named applicant completed a [course] in Australia in 2013. He told the Tribunal he was unable to apply for a skilled visa as he had [an operation] in September 2013.  He is currently working full [time]. The applicant has completed a [course] in Australia and is working as a casual [worker] most evenings.

The first named applicants claims

1. Before the Tribunal, the applicant made a number of claims of harm in Nigeria as follows:

• The applicant fears harm from her family because she has not had her daughters circumcised, and because she will not allow her daughters to be circumcised. She claims her grandmother is a leader in her home area of providing and training for female circumcision and the applicant herself will be forced into performing female circumcision due to her position as the middle child in the family.  

• The applicant fears harm from her brother, [Mr B], because he is violent and will punish her for not sending money home to him from Japan and Australia.

• The applicant fears harm from criminals who will kidnap her for ransom because she will be perceived to be wealthy due to her residence overseas, or will kidnap her for ritualistic purposes or for sexual assault including in Lagos. The applicant claims she experienced an attempted abduction in 2007, robbery and sexual assault in 2009, and her brother was attacked by a gang on his way from [Town 1] to Lagos.

• The applicant fears harm from Boko Haram because she is a Christian, and she claims to have been harmed by Alamajiri in Bauchi state in 2006 in the Northern part of Nigeria.  She also claims Boko Haram killed her brother [Mr A] in 2012.

• The applicant fears Fulani Herdsman who are moving through the eastern region of Nigeria, grazing cattle and killing Christians and have come close to [Town 1].

• There is widespread violence in Nigeria and in particular against pro-Biafra activists.

1. The applicant’s claims are discussed separately below.

Female genital mutilation (FGM)

1. The applicant claims her daughters will be subject to forced circumcision if they return to Nigeria. She claims her grandmother, who she stated is [age] but later said this is an assumed age, is a traditional performer of circumcisions; that circumcision is a strong tradition in her family; and that, even though she objects to her daughter’s being circumcised, her family will do it by force. The Tribunal noted at the hearing that her children are Japanese nationals and queried why she would take them to Nigeria if she holds such a fear since the children are Japanese citizens. Further, the second named applicant has stated that he will not allow his children be taken to Nigeria to live.

2. The Tribunal notes that the applicant did not make FGM claims of any kind in her original application to immigration.

3. The applicant claims she will be forced to carry on her grandmother’s work as, according to tradition, she is the next in line. When asked at the hearing why she is next in line, she said it is because she is the middle daughter and her mother was also the middle daughter. She said there was no pressure on her to take over her grandmother’s work before she left Nigeria as she was not married and only married women can do the work. She claims her family will disown her if she rejects tradition.

4. When asked if she would perform circumcisions on return to Nigeria, the applicant said she won’t take on the barbaric practice and she will face a lot of consequences. Her family will disown her and torture her and ask other women to take her from her home, tie her up and punish her and take her possessions. The second named applicant claimed his wife will be tortured and locked in the house and starved until she agrees to do the circumcisions and that their children will be subject to such harm.

1. The applicant stated that she and her sisters have been circumcised. Her sisters won’t support or oppose her mistreatment as they are scared of their elders. Her brothers and sisters won’t protect her and the elders will tell them to stay away.

2. When asked how many other women are performing circumcisions in her village, the applicant said she doesn’t know. Her grandmother is the main person and is teaching other women. The Tribunal noted that given her mother works for the government and her sisters are educated it seems unlikely they would force her to circumcise her daughters or force her to perform circumcisions. The applicant said she has talked to her mother and siblings on the phone stating her opposition and her mother has told her she has no right to object. Her mother believes her daughters won’t be able to marry if it is not done.

3. When asked at the hearing how the elders would find her and take her from Lagos which is a huge city, the applicant said they all know each other and communicate with each other and would find her. They will punish her for not bringing her girls home to be circumcised.  

4. At the hearing the Tribunal discussed the following country information with the applicant, including that FGM is now a criminal offence in Nigeria and that state protection will be available to her, particularly if she is being pressured to participate in a harmful and illegal practice. The applicant agreed the law exists but stated that she hasn’t seen it take effect.

The Violence against Persons (Prohibition) Act 2015 prohibits female circumcision, making it a federal offence, with the following penalties:
‘6(2) A person who performs female circumcision or genital mutilation or engages another to carry out such circumcision or mutilation commits and offence and is liable on conviction to a term of imprisonment not exceeding 4 years or to a fine not exceeding N200,000.00 or both.

[5] Library of Congress/Global Legal Monitor – ‘Nigeria: Bill on Elimination of Violence Against Persons Enacted into Law’, 4 June 2015 A person who attempts to commit the offence provided for in subsection (2) of this section commits an offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N100,000.00 or both. ‘6(4) a person who incites, aids, or counsels another person to commit the offence provided for in subsection (2) of this section commits an offence and is liable on conviction to a term of imprisonment not exceeding 2 years or to a fine not exceeding N100,00.00 or both.’ [5]

1. In the application for a protection visa there is no mention that the applicant fears FGM for her daughters if she was to return to Nigeria. On [date]/09/2013 a statutory declaration was given by the applicant to the department and there was no mention of FGM. A second statutory declaration was received on [date]/03/2014 in which the entire declaration is about FGM. In the third and final statutory declaration dated [date]/3/2017 there is some mention of FGM. When asked why she did not set out her claimed fear of being forced to perform FGM in her protection visa application, the applicant said that so many things had happened to her in Nigeria and she was focused on these things.

2. The applicant provided the department with a letter from her grandmother dated [March] 2014 in which the grandmother states that the applicant must return with her daughters to have them circumcised. The Tribunal does not accept the letter is from the grandmother as it coincides with the first time the applicant brought up the claim of FGM. The letter could have been written by anyone and by 2014 the applicants’ first child was already [age] years old. According to UNICEF 85% of circumcisions performed on females in Nigeria occur between birth and twelve months. [6]

   [6] >

   Looking to the future and whether the applicant faces a real chance of serious harm on return to Nigeria the Tribunal accepts that FGM exists in Nigeria. However, during the two Tribunal hearings both applicants’ stated that they would not allow their children to go to Nigeria to live. This negates the claim that the applicant fears harm as her children will be forced into having FGM performed on them should they live in Nigeria. In addition the Tribunal notes that the applicant did not mention FGM in her initial application as she stated she was focusing on other things. It was not until a statutory declaration dated 14 March 2014 when the wife brought up the FGM claims.

3. Furthermore, as discussed the Tribunal finds the children can reside in Japan as Japanese citizens. The applicants themselves have stated they will not allow their daughters to live in Nigeria. Therefore the Tribunal finds that the chance the children will be subjected to FGM in Nigeria is remote. 

4. The Tribunal is not satisfied the applicant faces a real chance that she will be forced to carry out FGM in her home area if returned to Nigeria nor is the Tribunal satisfied the applicant will suffer consequences from refusing to perform FGM.

Violence from her brother

1. The applicant told the Tribunal her brother [Mr B], who is separated from his wife and whose children live with her parents, has forced her to send money to him by threatening to kill her parents if she doesn’t. She told the Tribunal she sends [money] every few months. However in a statutory declaration dated 16 September 2013 she claims harm from her brother “if I don’t bring money back for him, he would also want to harm us because I never sent any money to him while I have been in Japan and Australia”. At the hearing she said her brothers and sisters don’t send any money to him. Her sister who is working has a lot of expenses as the other siblings are living with her and sometimes sends money. [Mr B] doesn’t threaten her sister because he knows she is not wealthy but he thinks that she is wealthy. [Mr B] is not working. He was [in a certain role] but is irresponsible and had a couple of accidents.

2. When the Tribunal queried why [Mr B] would demand money from the applicant if she returned to Nigeria and was not working, the applicant said he will think her husband is working.   

3. The applicant claims that [Mr B] was violent towards her in the past. He demanded money from her to fix his [vehicle]. He would go to her when he needed something. Once he broke a bottle on her head. He is always drunk and was violent towards his wife. When asked if her siblings would protect her, the applicant said [Mr B] sometimes fights with them and they all want to avoid him.  When asked why her parents allow him to live with them, the applicant said he is too violent and has beaten her mother a couple of times and they are waiting to see if he will change. When asked why her brothers haven’t tried to stop him or moved him out of her parent’s house, the applicant said they have tried but they are younger brothers. When asked if [Mr B] could harm her if she was living in Lagos, the applicant said he might threaten to harm her parents to force her to send money.

4. The Tribunal accepts that the applicants’ brother has violent tendencies and that he has caused trouble within the family. However, given that the applicant has claimed to the Tribunal that she was sending money to her brother yet in a statutory declaration provided to the department she claimed he will harm her as she has not given him any money since being in Japan and Australia the Tribunal does not accept the applicant will be harmed by her brother upon return to Nigeria. Further the Tribunal is not satisfied the applicants brother poses a serious risk to the applicant given the applicant did not raise her brothers harm as a claim in her protection visa application.

5. The Tribunal does not accept that [Mr B] has threatened the applicant or her family members with violence in a bid to obtain money from her. Given this finding the Tribunal finds that the applicant does not face a real chance of serious harm from her brother upon return to Nigeria or for reasons of her membership of a particular social group of women subjected to family violence in Nigeria or for any other reason advanced.

Kidnapping for ransom, sex or ritual

1. The applicant claimed that she will be perceived to be wealthy and targeted because she will be returning to Nigeria from abroad. She claimed her brother could also arrange for her to be kidnapped for ransom. For reasons above the Tribunal does not accept the applicant faces a well-founded fear of persecution from her brother on return to Nigeria.

2. When asked at the hearing how she would be identified as having returned from abroad, the applicant said you don’t know who is around you and that information is passed on. The Tribunal noted that thousands of Nigerians travel overseas to work, study and visit and queried why just living abroad would give rise to a perception of wealth. The applicant said that people will assume her husband is sending her money and she will be kidnapped for ransom. She stated that a friend or family member may tell criminals to kidnap her in order to get money.

3. The applicant fears that she will be targeted in her home area as well as in a location she may relocate to such as Lagos as she will be recognised as a returned Nigerian by local people and also by her brother [Mr B]. As discussed at the hearing country information indicates that many former Nigerians return with no problems experienced. 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 2013, 3,018 failed Nigerian asylum seekers were returned from the United Kingdom. The return of   failed asylum seekers is unlikely to be reported by authorities to the NIS. [7]

[7] DFAT Country Report Nigeria 2015

1. The applicant claimed in her statement that her family have been at risk of harm since she left Nigeria however she confirmed at the hearing that no-one has threatened to harm her family to get money from her. She stated that she fears she will be kidnapped for ransom on return as it has happened to other people. When asked by the Tribunal why she would be singled out for kidnapping the applicant claims it is because she will be returning to Nigeria as someone who has lived in a western country and therefore she will be more of a target.

2. The applicant claims she was nearly kidnapped in 2007. In her application for protection she claims that she was on her way to work and she was abducted by some “ritualists”. She was able to escape by jumping out of the car. The applicant gave similar evidence about this incident at the hearing. She stated that the police did not take a statement from her as she could not provide the licence plate number. The Tribunal accepts the applicant escaped being abducted and her claim of the incident was consistent with her claim before the department.

3. The applicant claims she and her sister were [attacked] by intruders in Lagos in 2009. The applicant and her sister were assaulted and robbed in their home. The applicant became upset when discussing this incident at the hearing.  She said that the worst part was that the police asked for money. She didn’t pay them any money as they are supposed to protect people and she didn’t have money to pay. The applicant stated that laws might be passed in Nigeria but nothing happens because police don’t protect you. The Tribunal asked if anything has happened to her sister since the assault in 2009 and she responded no. The Tribunal accepts that the applicant was [attacked] and robbed with her sister in 2009. The Tribunal however does not accept that there is a real chance that the applicant will be targeted for a Convention reason upon return to Nigeria. The Tribunal finds that the applicant was not targeted for a Convention reason, there has been no further harm or threats from the perpetrators including against her sister who has remained living in Nigeria.

4. The applicant also stated in a statutory declaration dated 16 September 2013 to the department that kidnapping for ransom is common where her parents live. The applicant also generalised about the kidnappings for ransom and she feared for her family due to her living in a western country they would be targeted. Whilst the Tribunal accepts that the applicant escaped abduction in 2007, and an assault did occur in 2009, there has been no other incident either with the applicant or her sister that leads the Tribunal to believe that the applicant would be targeted for abduction, sexual assault or ritual killings in the future.

Christian Religion

1. The applicant claims to be a Christian. The Tribunal accepts that the applicant is a Christian. The applicant claimed to fear harm from Boko Haram.  The Tribunal discussed country information with the applicant which indicates that Boko Haram are active in the north and that Christians are generally safe in southern states of Nigeria. The applicant states that she fears Boko Haram as her brother was killed by Boko Haram and that she is a Christian and is therefore at risk from Boko Haram. The Tribunal discussed with the applicant that Boko Haram operate mainly in the north and north east regions of Nigeria and do not operate out of the middle and southern sections of Nigeria. The Immigration and Refugee Board of Canada in a 2016 report states:

I suspect that the group’s reach is probably weak in the Southern parts of the country mainly because (1) the South is predominately Christian; (2) the South is predominantly Igbo (the Hausa and Fulani, which are largely Muslim, dominate northern Nigeria); (3) it is not easy for one ethnic group to move to another region, as they would stick out (they would not speak the local languages, know the local customs, etc.). The princip[al] ethnic group in Lagos are Yaruba, and there are Christian and Muslim Yarubas. (Assistant Professor 7 Mar. 2016)

The CFR representative stated that Boko Haram is "almost entirely inactive in Lagos" (CFR 1 Mar. 2016) and has "only carried out a single operation" there (ibid. 9 Mar. 2016). The CRS specialist reported that recent Boko Haram activity in the South consisted of an attack on a fuel depot in Lagos in June 2014, and a "few isolated incidents" in 2015 between the police and alleged Boko Haram members in Akwa Ibom and Ebonyi (US 1 Mar. 2016). [8]

[8] Immigration and Refugee Board of Canada, NGA105451.E Nigeria: The capacity of Boko Haram to pursue individuals who relocate to another region or city, such as Lagos (2013-March 2016), 11 March 2016

1. Further DFAT reports in DFAT Country Report, Nigeria, 10 February 2015 that:

The Igbo have faced attacks from Boko Haram in the middle belt and northern states of Nigeria. In January 2011, forty Igbo people were taken from a bus and killed after the bus had entered a predominantly Muslim area in the city of Jos in Plateau State. In November 2011, Igbo residents in the middle and northern states of Plateau, Kaduna, Nasarawa, Niger and Borno evacuated to the south in response to attacks by Boko Haram.  Such attacks have been opportunistic, isolated and infrequent and DFAT assesses the Igbo people do not face societal violence on a day-to-day basis in Nigeria. [9]

[9] DFAT Country Report, Nigeria 2015

1. The applicant stated that she fears harm from Fulani herdsman who are moving through the eastern region, grazing cattle and killing Christians and have come close to [Town 1]. She has seen pictures of a massacre but doesn’t know when this occurred. Her family have a farm and a house in town. The Tribunal put to the applicant information from the International Crisis Group from 19 September 2017 “Herders against Farmers: Nigeria’s Expanding Deadly Conflict” [10] indicating that Fulani Herdsman conflicts are happening in the Northern region of Nigeria are not coming into her home state that they are further north. Further the report indicates that the reasons for the conflict are not necessarily because they are Muslims or trying to convert Christians, but rather drought and desertification, loss of grazing reserves, changes in pastoralism and farming practices and erosion of traditional mechanisms are the drivers of the conflicts with the Fulani Herdsman.

   [10]International crisis group Herders against Farmers: Niegria’s Expanding Deadly Conflict Africa report no 252 19

   September 2017

2. The Tribunal does not accept that the applicant has a real chance of serious harm by Fulani Herdsman in her home area of [Town 1] or in Lagos (another home area the applicant has lived in) given that country information shows that the Fulani are operating further north than these areas. The applicant responded that she had heard there were attacks in and around her home area.

3. The applicant claimed at the hearing that she and her co-workers were attacked by members of Alamajiri in Bauchi in [2006]. She stated that she and her co-workers had to run away when Alamajiri tried to enter the lodge. She was cut [and] two co-workers were murdered. She and her co-workers subsequently returned to the area to finish their teaching work but they stayed somewhere else.  The Tribunal finds this to have been a random attack not motivated by religion. The Tribunal accepts that this occurred in Bauchi in the north of Nigeria. Further, the Tribunal finds it was a random attack whilst the applicant was undergoing compulsory service and was not serious and ongoing given that the applicant and her colleagues stayed in the area and continued working.

4. The Tribunal does not believe it is likely to occur in the south part of Nigeria where the applicant is from and the Tribunal does not believe the applicant would suffer a real chance of serious or significant harm in the southern part of Nigeria by the Alamajiri should she return to Nigeria

5. The applicant claims her brother was attacked by a gang going from Lagos to [Town 1] in 2011 but the reason for the attack are unknown. The Tribunal does not accept that this happened as the applicant was not in the country in 2011 nor is it relevant to her claims for protection.

6. The applicant claims her brother, [Mr A], who was a [occupation], was attacked and killed by Boko Haram in 2012 whilst driving in [a] northern state. Other drivers were also attacked. The Tribunal accepts the applicant’s brother may have been killed however; it is purely speculation on the applicant’s part that he was killed by Boko Haram because he was a Christian. As set out above, the Tribunal does not accept the applicant faces a real chance of being harmed by Boko Haram in the south of Nigeria.

Membership of a particular social group

It has been submitted that for the following reasons the applicant fears harm in Nigeria based on being a member of a particular social group, that being, women, single women without male protection, Nigerian women returning from living in a developed country overseas. The applicant claims her husband will not allow their children to go to Nigeria and that she will be a single woman and as such is a member of this particular social group. The Tribunal finds that the applicant would not face a real chance of significant harm as a member of this particular social group. For the following reasons the applicant does not face a well-founded fear of serious harm on return to Nigeria as a member of this particular social group. The Tribunal notes that the applicant has a family, a sister living in Lagos, she has worked in a professional capacity and that the applicant would be able to access her family group should she return to Nigeria. The applicant also fears that she will be targeted as a person who has returned from a foreign western country. As stated above there is no evidence to suggest that Nigerian’s returning from overseas are targeted in anyway.

Widespread Violence and Pro-Biafra Violence

1. At the Tribunal hearing the applicant referred to the general violent nature of Nigeria and Biafra Protesters. The Tribunal discussed that the pro-Biafra movement was a political movement and it appeared from news reports that it was protestors who were being injured or killed and that it was not widespread outside of the protesters. The applicant has at no stage indicated that she is a member of or has ever participated in any political activities or rallies related to any pro-Biafra movement. Therefore the Tribunal does not accept that the applicant will face harm in respect of pro-Biafra violence in Nigeria.

2. The Tribunal accepts there is generalised violence in Nigeria however for   reasons above the Tribunal does not accept that the applicant will be harmed by generalised violence upon return to Nigeria.

3. For reasons above, and considering the applicant’s claims individually and on a cumulative basis, the Tribunal does not find that applicant one faces a well-founded fear of persecution on return to Nigeria.

Second Named Applicant

1. The second named applicant told the Tribunal he worked for three [companies] in Japan doing [work]. He was constantly employed in Japan although there were small periods of time between each job. His work involved [details deleted].

Racial Discrimination and Membership of a particular social group

1. The second named applicant claims he changed jobs because of discrimination. When asked if he was discriminated against because he was a foreigner, he said he was treated as a guijon (foreigner) even after he obtained citizenship. He stayed in his first job for seven years despite what he himself calls discrimination against him at his work.

2. The applicant claimed that, when he lived in Tokyo, neighbours sometimes threw eggs at his house and wrote foreigner go home, so he relocated to a regional area to see if the situation would change. The Tribunal accepts that the applicant faced some discrimination in Japan from his neighbours.

3. When asked if he experienced any other discrimination, the second named applicant said that he couldn’t eat with his Japanese work colleagues or use same utensils and they referred to him as a black person. He spoke to his employer, but the employer didn’t do anything. The Tribunal does not accept that the second named applicant was targeted at his workplace by his co-workers. He was able to hold down consistent employment in Japan and indeed he himself claimed his skills were in high demand. The Tribunal finds that the second named applicant lived and worked for close to ten years in Japan, chose to become a Japanese Citizen, married his second wife and brought her to Japan to live and had their first child in Japan. The Tribunal finds that these facts undermine the applicant’s claims of being discriminated against in Japan.

4. The second named applicant said he did not own a property in Japan and rented apartments. Prior to becoming a citizen, his company signed for the property and guaranteed the lease. He never leased an apartment in his own right, always through his employer. He had skills [so] he was attractive to employers and they were prepared to find him an apartment. He was not discriminated against by his employers, just other employees. He claims that societal discrimination persists in Japan. For example, landlords will tell foreigners a room or apartment is not available but will then lease it to a Japanese person. The Tribunal accepts that in Japan there is discrimination against foreigners, however such discrimination does not rise to the level of persecution and the Tribunal finds that the second named applicant was able to live in Japan with consistent employment for many years.

5. The second named applicant claims he received discriminatory medical treatment in Japan. A doctor told him he couldn’t get [an operation performed] until he was 60. However, in Australia, he was diagnosed with [a medical condition] and [had an operation] in September 2013. He claims his work in Japan aggravated his condition. He might need another [operation]. He has completed [qualifications] in Australia and is currently [working]. He told the Tribunal that this work is not aggravating his [injury].

6. The second named applicant claims his son, who is half Japanese, is bullied in Japan and that it will be worse for the girls as they are fully African. They may be traumatised and unwilling to go to school. This claim is inconsistent with the applicants own actions. He lived in Japan from 2000-2007 when he was divorced from his first wife. He stayed in Japan and then in 2008 he married applicant one from Nigeria, bringing her to Japan to live in 2009. In 2010 they had their first child in Japan.

7. The second named applicant suggests that he is a member of a particular social group that being: African race, Africans in Japan, Nigerians in Japan, and foreigners in Japan. Due to his membership of these particular social groups he claims he could not get a rental that had a bath in it and he was refused access to a public bath due to his race. He also claimed a 10 year old boy asked if his face was burnt, people moved away from him on trains when he sat down and he was told black men are unacceptable. The Tribunal finds that these were discriminatory acts against the second named applicant but the Tribunal does not accept that these acts of discrimination rise to the level of persecution. The Tribunal is of the view that if the applicant truly faced persecution he would not have become a citizen, he would not have brought his second wife into Japan to live and he would not have had a child in Japan.

8. The second named applicant claims he will not be able to obtain work as a [occupation] in Japan as foreigners can only get unskilled work. The Tribunal noted that, according to his evidence above, the [company] he worked for wanted his [skills]. The second named applicant stated that the [company] needed someone who is strong; that he won’t get a different kind of job and he will be deprived of a right to earn a living. The Tribunal is not satisfied that the applicant will suffer harm and not be able to gain employment in Japan. The applicants own track record of meaningful employment in Japan satisfies the Tribunal that he has not suffered harm from lack of employment in the past. The Tribunal is not satisfied that the applicant will be discriminated against as a foreigner as he is a Japanese citizen and had held employment almost consistently except for a short break between jobs for over seven years whilst living in Japan.

9. The second named applicant claims his motorbike was damaged in Japan. He has no idea who did it. He believes the damage was done to his bike deliberately as other bikes were parked nearby and only his bike was targeted. The Tribunal accepts that his bike was damaged but the Tribunal is not satisfied it was damaged due to a racial attack against him and finds it to be purely speculative.  

10. The Tribunal discussed country information around discrimination in Japan and other information including information showing African Americans are popular in Japan and that the Miss Japan was from a racially mixed African American Father and Japanese mother.  The second named applicant said that the Japanese love African Americans and respond differently to them but since they are not African Americans they are discriminated against. The Tribunal acknowledges that Japanese society can be discriminatory towards foreigners.  A BBC blog “What’s it like to be black in Japan”, BBC 19 October 2015 states:

Only 1.5% of Japans population is foreign born and like many Western Countries, issues of Immigration and race are controversial. “You do get impolite stares, that is for sure, but most things that have happened were minor”. [11]

However the Tribunal is not satisfied that the second named applicant has or will suffer persistent discrimination that rises to the level of persecution for a      Convention reason should he return to Japan.

[11] Htttp:// –trending: What’s it like to be black in Japan BBC news 19 October 2015

1. The second named applicant also claims that he could not get his [surgery] in Japan until he was 60 but that he was able to get it in Australia. The Tribunal is not satisfied that he has suffered or will suffer serious harm due to lack of health care in Japan. Japan has universal coverage and the longest life expectancy in the world.  The Tribunal finds as a Japanese citizen for the past 10 years the second named applicant would have been able to obtain health care in Japan and will be able to obtain adequate health care in the future.

2. The Tribunal notes that the applicants claimed in their application for a protection visa that they left Japan because of the radiation following the Fukushima incident and earthquake and that the trauma and shock was too much for the applicants. This is inconsistent with the claims raised later in statutory declarations and before the Tribunal.

3. For reasons above, and considering the second named applicant’s claims individually and on a cumulative basis, the Tribunal does not find that second named applicant faces a well-founded fear of persecution on return to Japan.

Complementary Protection First Named Applicant

1. On the basis of the applicant’s claim to be a national of Nigeria and earlier findings about her identity and nationality with regard to her refugee assessment, the Tribunal finds that Nigeria is the applicant’s receiving country for the purposes of s.36(2)(aa).

2. As the Tribunal does not accept that the applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.

3. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if she returns to Nigeria now or in the foreseeable future on religious grounds, from generalised violence, FGM, forced to undertake FGM, Fulani Herdsmen, Boko Haram, Alamajiri, violence from her brother, membership of a particular social group or as a returnee from a Western country. In MIAC v SZQRB, the full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention Definition.  [12] It follows that the Tribunal does not accept there to be a real risk that the applicant would suffer significant harm from the Nigerian authorities or anyone else for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria.

Complementary protection Second Named Applicant  

1. On the basis of the second named applicant’s claim to be a national of Japan and earlier findings about his identity and nationality with regard to his refugee assessment, the Tribunal finds that Japan is the applicant’s receiving country for the purposes of s.36(2)(aa).

2. As the Tribunal does not accept that the second named applicant has a well-founded fear of persecution the Tribunal has considered the alternative criteria in s.36(2)(aa), whether there are substantial ground for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Japan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

3. For reasons set out above, the Tribunal has not accepted there to be a real chance that the second named applicant will suffer serious harm if he returns to Japan now or in the foreseeable future on racial discrimination grounds. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[^11]    It follows that the Tribunal does not accept there to be a real risk that the second named applicant will suffer significant harm from the Japanese authorities or anyone else for these reasons as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Japan.

   [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

DECISION

1. In respect of the first two applicants the Tribunal affirms the decision not to grant the applicants Protection visas.

2. The Tribunal sets aside the decision refusing to grant the third and fourth named applicants protection visas and substitutes a decision that their protection visa applications are not valid and cannot be considered.

Nora Lamont
Member

Key Legal Topics

Areas of Law

• Immigration

• Administrative Law

Legal Concepts

• Judicial Review

• Natural Justice

• Procedural Fairness

• Jurisdiction

• Standing